Everything you need to know to understand abortion laws in India

A few weeks ago, the Indian Supreme Court extended the right to safe and legal abortion up to 24 weeks into a pregnancy to unmarried women. While abortion has long been legal in India, and in theory available to all women regardless of marital status up to 20 weeks into a pregnancy, if authorised by doctors, in 2021 an amendment was made to extend the upper gestation limit to 24 weeks for certain “vulnerable categories”—such as survivors of rape and people with disabilities. However, much of the language of the law largely assumed (much like society does) that sex is only to be had after marriage, and therefore that only married, divorced, or widowed women would seek an abortion. 

With the September 2022 ruling, the Supreme Court seems to have recognised this unexamined bias in legal language and the need to account for the fact that unmarried women equally deserve to be able to legally seek abortion up to 24 weeks into a pregnancy, and indeed that sex and marriage, unintended pregnancy and marriage, have no necessary correlation at all. 

The September ruling also attempts to acknowledge that married women can be subjected to sexual coercion by their husbands and deserve recourse—a fact that our penal code continues not to recognise— with marital rape still not constituting a crime in India. Hopefully it will be a step towards changing that law too. 

All people, no matter their gender or marital status, deserve the right to secure their sexual and reproductive health and their bodily autonomy. And while our abortion laws are progressive in comparison to several other countries—including the US, where the constitutional right to abortion, upheld for over 50 years, was shockingly and abhorrently, overturned this June—it’s worth understanding that even in India, abortion isn’t viewed by the law with a rights-first approach. Safe, legal abortion ought to be conferred as a consitutional right—granted on one’s request should one seek it—rather than only at the behest of doctors. 

Doctors, after all, often have the same prejudices as society at large, and women across the country, particularly women from marginalised communities and unmarried women, often face tremendous stigma and obstacles to accessing safe, legal abortion due to medical providers’ biases—doctors declining to do their jobs because of their own personal prejudices and religious beliefs. This needs to change. 

Also, what the legal language still does not accommodate for is that not just cis women but nonbinary, gender queer, and trans masculine people may also seek abortion. It is not only a “woman’s” issue, it is a human issue, and the law ought to become rights-based and queer-inclusive.

The fact is, that in the absence of comprehensive sex education, information about safer sex practices, and still-looming barriers to accessing contraception—social taboos, affordability, availability—as well as the fact that contraceptive failure can and does occur, and that sexual decision-making is not as simple and straightforward a process as we’d like to imagine, unplanned pregnancy is extremely common. 

Millions of abortions take place around the world and in India each year, unfortunately, too often outside of the healthcare system, because it remains something that’s shrouded in shame and misinformation. An accidental pregnancy can happen to anyone. And anyone in such a situation deserves support, not stigma. It thus behoves us to equip ourselves with an understanding of the legal and medical landscape around abortion, and to advocate for the right to safe abortion globally. 

Here are answers to several important questions about what an abortion in India entails:

Is abortion legal in India?

Abortion is legal in India. Under the Medical Termination of Pregnancy Act or MTP Act of 1971, abortion is legal in India up to 20 weeks into a pregnancy. This Act was amended in 2021 to increase the upper gestation limit for certain “vulnerable categories” including survivors of rape, minors and people with disabilities up to 24 weeks into a pregnancy. As of September 2022, the upper gestation limit clause has been expanded to explicitly include unmarried women as well.

The law states that an abortion can be obtained in any of the following scenarios: The pregnancy poses a threat to the life of the pregnant person; the pregnancy poses a threat to the physical or mental health of the pregnant person; if there are fetal abnormalities present; and in cases of contraceptive failure.  

So, in theory, anyone seeking to terminate their pregnancy should be able to legally obtain a safe abortion in India.

However, as I touched upon earlier—it remains at the behest of doctors, rather than solely at the request of the pregnant person.

Up to 20 weeks into a pregnancy, the law requires a person to have the authorisation of one medical provider in order to obtain an abortion. Between 20 and 24 weeks, however, the authorisation of two medical providers is required.

If the pregnancy poses a risk to the pregnant person’s life, the upper gestation limit does not apply, and an abortion can be done at any stage in the pregnancy.

In cases where there are fetal abnormalities, the upper gestation limit also does not apply; however, the authorisation of a medical board is required.

Can you get an abortion if you are not married?

You do not have to be married to obtain an abortion in India. Moreover, according to the law, a person who is 18 years or older and of sound mind does not need the permission of their parents, spouse or anyone other than their doctors to get an abortion. They can also be assured that their identity will be kept confidential.

Can you get an abortion if you are under the age of 18?

This is a more complicated question. In India, the legal ‘age of consent’ for sex is 18—which effectively criminalises all sex by people under the age of 18, even if it is consensual.

The Protection of Children from Sexual Offences (POCSO) Act, which is intended to protect children and young people from sexual abuse, is an important and valuable Act. However, it does not currently differentiate between consensual sexual activity between teenagers similar in age, and non-consensual sexual activity, or sexual activity between an adult and a minor. So, even though licensed medical practitioners can perform an abortion for a person under 18 years of age, they are legally required to file a police report even if the sex was consensual.      

We need to advocate for a solution to this so that young people who may need it can access safe abortion without involving the police—because, let’s be honest, this law isn’t going to make teenagers stop having sex. It’s only going to force them to opt for unsafe abortions outside of the healthcare system.

How safe is abortion?

When performed correctly, abortions, particularly early-stage abortions, are very, very safe. In fact, abortion is considered among the safest procedures in obstetric practice. To give you a sense of how safe it is—statistically, it is a safer procedure than delivering a child. It’s also worth keeping in mind that generally safe abortions do not impact a person’s long-term fertility.

What sort of procedures does a safe abortion entail?

In the early stages of a pregnancy, medical abortions or abortion pills can simply be taken orally. Tablets of mifepristone and misoprostol are usually taken in two phases, and these medications help terminate and expel the pregnancy.

The other option in the first trimester is suction aspiration, which is a simple surgical procedure involving either a manual aspirator or an electrically operated device, which uses gentle suction to remove the pregnancy.

For later-stage abortions, slightly more elaborate surgical procedures are required, but around 90 per cent of abortions take place in the first trimester.

Are abortions painful?

This depends on what procedure is opted for, and what stage of the pregnancy the person is in.

Medical abortions with pills which can be done in the early stages of a pregnancy can be painful, as when the uterus expels the pregnancy one might experience pain similar to severe period cramps. But doctors also provide pain-management and pain-relief solutions.

Surgical abortion procedures, typically done if the pregnancy is in a later stage, are done with anaesthesia.

How common is abortion?

Abortion is much more common than you probably think. It is estimated by the Guttmacher Institute that has the most credible studies on the subject, that at least 56 million abortions take place across the world annually, and at least 15.6 million abortions take place in India each year.

Simply going by the statistics, abortion is so common, in fact, that it is highly likely that someone both in your family and in my family have already had an abortion. So if you are someone going through this, know that you are not alone.

Why is it important that we support the right to choose?

Even today, abortion in India is not considered a human right and people continue to face challenges while accessing safe abortion services.

According to the MTP Act, abortion needs the opinion and approval of a medical practitioner. A person cannot get an abortion solely on their request. This is reflective of the prevalent socio-cultural and legal perception that a woman cannot and should not control her own reproductive choices.

These attitudes sometimes extend even to providers, who often ask for spousal or family consent before providing an abortion though it is not a legal requirement. Biases such as these further prevent people from accessing safe abortion.

Denying people access to safe abortion is not going to magically stop unwanted pregnancies. It only stands to jeopardise the health and lives of millions of people around the world, by forcing them to seek potentially dangerous solutions outside of the healthcare system. Unsafe abortion is still among the leading causes of maternal death in our country.

On a fundamental level, every human being deserves sexual and bodily autonomy—we deserve scientifically accurate, judgement-free information about our bodies and about sexual and reproductive health, we deserve safe and affordable access to healthcare services, and we deserve the right to make our own choices about our own bodies. If we have any value for our own agency and bodily autonomy, access to safe abortion is a right we should all be advocating for globally. 

 

Leeza Mangaldas is a sex education content creator. She established her immensely popular sex-ed platforms on YouTube and Instagram in 2017, hoping to help normalise conversations around sexuality, sexual health, gender, and the body. She also hosts The Sex Podcast, a Spotify exclusive, in Hindi. She is a UN Women Ally, as well as a recipient of The Pleasure Project Fellowship.