Access to Safe Abortion in India: Challenges and Policy Gaps

Author: Divya Madhwani, Christ Academy Institute of Law, Bangalore

Access to safe abortion is an important aspect of reproductive rights and health. Challenges to accessing abortion are highly prevalent in India, even under the provisions of the MTP Act of 1971, which aimed for equitable and safe access to it. This paper discusses various legal, social, and medical constraints on reproductive autonomy that deny women full authority over their sexual and reproductive decisions. Policy gaps, socio-cultural stigma effects, and the function of health-care infrastructure also severely limit access. The article further explores the existing legal landscape and provides policy recommendations to address these gaps.

Safe abortion, MTP Act, reproductive rights, healthcare policy, gender justice, India

Abortion is an essential aspect of reproductive health and a woman's bodily rights. India became one of the pioneer countries to legalize abortion with the passing of the Medical Termination of Pregnancy (MTP) Act, 1971. Despite the availability of legal provisions, safe access to abortion remains a concern due to legal ambiguities, medical barriers, socio-cultural stigma, and lack of awareness. In many rural and marginalized areas, women are compelled to undergo unsafe abortions, leading to severe health consequences and even death. This paper discusses the policy and legal gaps that undermine safe access to abortion in India. It also describes the role of healthcare providers, judicial interpretation, and societal attitude in forming the abortion landscape.

Several studies reflect the legal and ethical considerations of abortion in India. An article by Gupta & Singh (2021) proves that despite legal developments, up to 67% of all abortions in India are still unsafe. The Guttmacher Institute (2020) has stated that complications from abortion cause 10% of maternal deaths in India.

Judicial interventions often reference the case of Suchita Srivastava v. Chandigarh Administration (2009), which upheld a woman's right to make decisions about her reproduction. However, legal interpretation always raises controversies in most judgments, placing women in vulnerable situations. Bureaucratic and medical hurdles make access inconsistent. The MTP (Amendment) Act, 2021 attempted expansion by raising gestational limits and allowing unmarried women to get medical termination under identical conditions as provided to married women.

One of the gaps is that hardly any research is done on the implementation of the MTP Act at the ground level. This article tries to bridge this gap by discussing practical problems faced by women, mainly from lower-class sections, at the ground level.

This article uses a qualitative research methodology and includes a study of legal provisions, judicial decisions, and secondary sources in the form of government reports and other research papers. This includes a detailed study of important case laws and recent policy changes concerning the above issues to evaluate the impact these developments might have on accessing abortion services. Besides that, data from public health organizations and NGOs working on reproductive rights are considered in understanding the on-ground challenges of accessing abortion services.

This paper utilizes a qualitative research method and analyzes legal provisions, judicial decisions, and secondary sources based on government reports and research papers. To understand the accessibility of abortion and the impact brought about by it, key case laws and recent policy changes are studied for their impact and effects. Inputs from public health organizations and non-governmental NGOs working on reproductive rights add to the real challenges on the ground in accessing abortions.

The research identifies several key barriers to safe abortion in India:

1. Legal and Policy Gaps

   • Inconsistencies in the MTP Act: The requirement of medical approval limits a woman's autonomy, unlike in countries like Canada, where abortion is a woman's choice without external approval.

   • Gestational Limits: Though the 2021 amendment enhanced the special cases limit up to 24 weeks, it still denies access to abortion for most women, especially victims of rape or incest, whose pregnancies are not discovered until much later.

   • Ignorance: The vast majority of rural women in India, and even a large section in urban areas, are ignorant about their legal entitlements under the MTP Act.

2. Medical Barriers

   • Doctors' Discretion: The law demands that the decision to abort be made by doctors based on their individual belief systems and moral judgments.

   • Shortage of Qualified Providers: There is an acute shortage of qualified doctors in such regions, which forces many women to seek abortive services from unqualified doctors.

3. Sociocultural and Economic Obstacles

   • Stigma and patriarchy: Cultural taboos compel women to seek abortions in secrecy from unsafe providers.

   • Marital status discriminations: Even by laws, unmarried women are discriminated against by healthcare providers, making access more difficult.

   • Financial constraint: Most women cannot afford private health services. In many cases, it is not found in public hospitals.

4. Judicial Developments and Impacts

   • Suchita Srivastava v. Chandigarh Administration (2009): The Supreme Court of India reiterated that a woman's choice regarding her reproductive life was covered under Article 21 (Right to Personal Liberty).

   • Principal Secretary, Health & Family Welfare Department (2022): The SC of India made the unmarried women's rights identical to those of married women seeking abortion facilities, further liberalizing it under the amendment 2021.

These judicial precedents look at the development in legal interpretation, yet the lapses in implementation and awareness remain.

Legal provisions are not connected in practice: The legal framework can be progressive, but India fails in implementation—social stigma and medical gatekeeping undermine women's rights. Comparative Analysis: For instance, Sweden and Canada have relaxed laws for abortion, allowing it without third-party consent, making it easier and relatively safer. For India, however, there's a condition called medical permission, making it even tougher to cross this barrier. In relation to a rights-based approach, as practiced in the developed world, an improvement in access is being seen.

To Women: Access to safe abortion contributes towards lowering maternal deaths and women's control over their reproductive choices. For the Legislature: Reproductive rights can be strengthened by filling loopholes in the MTP Act. For Health Care Providers: More training will increase certified abortion providers, reducing unsafe procedures.

The abortion laws in India have seen changes, but they still face universality and stigma removal. There are legal provisions available, but the medical, social, and policy gaps still obstruct many women from making access. The judiciary has made efforts to expand access, but implementation remains weak. Policy Reforms: The government should evolve into a rights-based approach that puts the woman solely in control of her decision on abortion. Medical Training: Increase the number of certified abortion providers, especially in rural and underserved areas. Awareness Campaigns: National campaigns to educate women about their reproductive rights under the MTP Act. Decriminalization of Abortion: Trend towards full decriminalization wherein abortion is regarded as a right to health and not as a conditional medical practice. There is an immense requirement for further research that establishes the differences in state-to-state access to abortion and how judicial interventions actually affect the services rendered for abortion.

1. Medical Termination of Pregnancy (MTP) Act, 1971 & Amendment, 2021

2. Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1

3. X v. Principal Secretary, Health & Family Welfare Department, 2022

4. Gupta, R., & Singh, P. (2021). "Abortion Laws in India: A Critical Analysis," Indian Journal of Legal Studies.

5. Guttmacher Institute. (2020). "The State of Abortion in India."

6. WHO. (2021). "Safe Abortion: Technical and Policy Guidance."

7. Patel, N. (2019). "Reproductive Rights and Legal Barriers in India."