Faculty Publication | Legal Barriers to Accessing Safe Abortion Services in India: A Fact Finding Study

Faculty members Mrinal Satish, Dr. Aparna Chandra  and Shreya Shree recently released their report ‘Legal Barriers to Accessing Safe Abortion Service in India: A Fact Finding Study’. The report, written along with Mini Saxena, is a result of a collaborative exercise between Center for Reproductive Rights New York, National Law University, Delhi and NLSIU.

Extract: In India, the Indian Penal Code, 1860 criminalises voluntarily “causing miscarriage” even when the miscarriage is with the pregnant woman’s consent, except when the miscarriage is caused to save the woman’s life. A woman who consents to her own miscarriage or causes herself to miscarry is also criminally liable. In 1971, the MTP Act was enacted to “liberalise” access to abortion,12 and to provide access to safe abortion services.13 The Act provides certain exceptions to the prohibition in the IPC and lays down the conditions under which abortion can be provided legally. However, the MTP Act is not a rights-based legislation. It permits abortion only on certain specified grounds and only upon the approval of registered medical practitioners. The Act also lays down other conditions that have to be fulfilled for a pregnancy to be terminated legally. Further, the Medical Termination of Pregnancy Rules, 2003 and other legislations, most notably, the mandatory reporting requirement in the Protection of Children from Sexual Offences Act, 2012 and the Criminal Procedure Code, 1973, the Preconception and Prenatal Diagnostic Techniques, 1994 and state and national level drug regulations, create additional legal barriers for women seeking access to safe abortion services, both directly, and through the stigmatisation of abortion and the consequent chilling effect on seeking and providing safe abortion services.

Through a field-based study in four states, this report aims to understand and document whether and how these laws operate as barriers to accessing safe abortion care. This study is a collaboration between the Center for Reproductive Rights, the Centre for Constitutional Law, Policy and Governance, National Law University, Delhi and the National Law School of India University, Bengaluru. In addition to highlighting the restrictions imposed in law and procedure, we wanted to understand from the experiences and perceptions of abortion seekers, abortion service providers, civil society organisations, academics, and legal service providers, how these legal barriers impact women’ and girls’ access to abortion and the health consequences that they are compelled to face. We seek to centre women within this complex interplay between the law, the medical space, and the courts, with the aim of providing a comprehensive picture of the legal barriers experienced by women in accessing safe abortion services.

This report demonstrates that the Indian Penal Code, 1860 and the Medical Termination of Pregnancy Act, 1971 along with a range of other laws create various legal barriers in accessing safe and comprehensive abortion care. These laws deny pregnant persons their rights to reproductive and sexual autonomy, bodily integrity, equality, health, privacy, and dignity. They enable a system of social and medical surveillance and control over women’s sexual and reproductive behaviour. At the same time, restrictive abortion laws do not reduce the incidence of unsafe abortions. To the contrary, they actively push pregnant persons to such unsafe methods by denying them access to safe abortion services. While this study was conducted before the enactment of the Medical Termination of Pregnancy (Amendment) Act, 2021 we discuss below how many of the concerns that we have highlighted in this report remain unaddressed despite the recent amendments. The Report makes a detailed recommendations for rights-oriented law reform.

Read the full report here