Abortion law in India: A step backward after going forward

The Court’s decision to refuse an abortion to a woman with postpartum psychosis has undone the progressive strides made in 2021 and 2022

Adsa Fatima and Sarojini Nadimpally | Supreme Court Observer | 17th Nov 2023

In September 2021, the Medical Termination of Pregnancy (Amendment) Act of 2021 came into force, extending the upper gestational limit for abortion from 20 to 24 weeks. Although the amendment did not recognise abortion on demand as a pregnant person’s right, it was heralded as the next step in making Indian abortion laws more progressive. The amendment was a response to the Indian courts receiving requests to access safe medical support from many women with unwanted pregnancies beyond the permissible gestation period.

Two contradictory decisions

In September 2022, the Supreme Court granted a petitioner permission to terminate her 22-week pregnancy in a X v Principal Secretary. In a decision that was celebrated among reproductive rights advocates, the Court found that any distinction made between the rights enjoyed by a person based solely on marital status is unconstitutional. Additionally, it recognised the unmet needs of marital rape survivors in situations of unwanted pregnancies.

The judgement held that the decision to carry a pregnancy to term or terminate it is firmly rooted in a woman’s right to her bodily autonomy and her ability to choose her path in life. It also recognised that an unwanted pregnancy can have serious negative effects on a woman’s life, such as disrupting her education, career, and mental well-being.

But in 2023, the positive developments of 2021 and 2022 appear to have been overshadowed by anti-reproductive rights sentiments. A year after the judgement in X v Principal Secretary, this pro-rights agenda received a major setback and revealed how much more there is to be done for India to transition into a truly liberal and right-based jurisdiction for medical termination of pregnancies.

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