Is Abortion in India Legal or Not?

Under the law, abortion in India is defined as an untimely termination of the foetus. It is done at any time before the natural birth of the child. Abortion means untimely delivery of a child before it is viable and a child is considered viable from the 28th week of pregnancy as per the medical laws.

By Apeksha Pandita in Criminal Law

Nov. 14, 2018, 5:34 p.m.

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To know whether Abortion in India is legal or illegal, one has to understand the laws behind abortions in India. Under the Medical Termination of Pregnancy (MTP) Act 1971 (pdf) in India, abortion is defined as an untimely termination of the foetus. When there is an untimely delivery of a child before the natural birth of the child, it is termed as an abortion. India, however, has certain abortion laws that elaborate on the conditions of abortion, legal in India.

“Abortion is part of being a mother and of caring for children because part of caring for children is knowing when it’s not a good idea to bring them into the world.” - Katha Pollitt

To start off, let’s know the meaning of abortion under Abortion Law in India

The term abortion refers to the deliberate medical termination of pregnancy, which can be done in two ways – medical or surgical.

  • Medical Abortion: A woman who is less than seven weeks pregnant can undergo a medical abortion. This process involves terminating a pregnancy with help of pills and medications. It is a non-surgical method which must be done under the supervision of a physician.
  • Surgical abortion: If a woman wishes to undergo an abortion beyond seven weeks of gestation, then a surgical abortion is performed. These are much more effective than a medical abortion, with a lower risk of an incomplete procedure.

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What are abortion laws in India?

Abortion of a foetus is governed by various abortion laws that govern the legality or illegality of abortion in India are as follows :

  • Indian Penal Code -  Till 1971, Indian Penal Code (IPC) provided for the provisions of abortion in India. However, IPC does not provide for direct provisions related to abortion but does deal with miscarriage under section 312 to 316 of the code.

  • Medical Termination of Pregnancy Act - The act deals with the provisions of abortion laws in India. The act provided that a pregnancy may be terminated until the first 12 weeks of the pregnancy with the approval of a medical practitioner. For abortion between 12-20 weeks of pregnancy, approval of two medical practitioners is required. The approval is mandated to make sure that the abortion is being done in accordance with the laws in India or not. The act does not provide for the sex-selective abortions. 

Who can perform an Abortion in India under the Law?

After clearing your confusion on “abortion legal in India?”, there are abortion laws in India that need to be followed in order to perform an abortion. Every medical institution that is licensed by the government to perform medically assisted abortions in India must display a certificate issued by the government. 

The doctor needs to have one of the following qualifications to perform an abortion:

  • A registered medical practitioner who has performed at least 25 medically assisted terminations of pregnancy.

  • A surgeon who has six months of experience in obstetrics and gynaecology.

  • A person who has a diploma or degree in obstetrics and gynaecology.

  • A doctor who was registered before enactment the Medical Termination of Pregnancy Act, 1971 and who has three years of experience in obstetrics and gynaecology.

A doctor who has registered after 1971 and has been practising in obstetrics and gynaecology for at least a year.

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Is abortion legal in India?

So, the answer to this question is Yes!
Abortion in India is legal under some circumstances and illegal in others. The abortion laws in India provide that if the abortion is being done by the adult then no parental or spousal approval is needed for the same.

Well, the legal age for abortion in India is up to 12 weeks. In the first 12 weeks of pregnancy, abortion is legal in India, if signed by a single medical practitioner. So till the first 12 weeks and not beyond 20 weeks of the pregnancy. 

You can get the procedure done during this time period, along with the signs of two registered medical practitioners. 

Explaining when, why & how is abortion legal?

As per abortion rules in India, there is a nationwide debate on its legality. Some countries have made abortion legal, while some countries still have laws that make it illegal for anyone to abort the pregnancy at any stage. 

However, the abortion laws in India aim to reduce illegal abortion and maternal mortality. As explained above, abortion in India can be performed until the 20th week of pregnancy as per the MTP Act. The opinion of a second doctor is required if the pregnancy is past its 12th week under the abortion laws. 

After the amendments to MTP Act in 2002 and 2003, doctors are allowed to provide ‘morning-after pill’ on prescription, up until the 7th week of pregnancy, therefore making abortion legal as per the Indian Law.

According to the abortion rule in India, the legality of abortion depends on the following cases:

  • A woman has a serious disease and the pregnancy would endanger her life

  • A woman’s physical or mental health is endangered by the pregnancy.

  • The foetus has a substantial risk of physical or mental handicap.

  • A woman contracts rubella (German measles) during the first three months of pregnancy.

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  • Any of a woman’s previous children had congenital abnormalities.

  • The foetus is suffering from RH disease.

  • The foetus has been exposed to irradiation.

  • The pregnancy is the result of rape.

  • A woman’s socioeconomic status may hamper a healthy pregnancy.

  • A contraceptive device failed.

To perform an abortion procedure on a pregnant woman, the permission of certain persons is required. Like, if a woman is married, her own written consent is sufficient. Her husband’s consent is not required.

Is Abortion Legal in India for Unmarried Girls?

With a rise in the number of pregnancies amongst unmarried girls, the abortion laws in India provide an answer to this question. The legal age of getting an abortion done in India for an unmarried girl is 18 years. 

A woman who is unmarried and over 18 years of age can provide her own written consent to get an abortion done whereas, women under 18 years of age, must provide a written consent from her guardian along with a specific reason for the abortion of pregnancy. 

The legal time period to undergo abortion in India is 12 weeks of the foetus for any unmarried girl or a girl before marriage by any registered medical practitioner. If a woman is mentally unstable, she must provide written consent from her guardian as per the MTP Act, 1971. In absence of any of these conditions or permissions, abortion is illegal in India under this Act.

Is Abortion Legal in India for Rape Victims?

Rape is one of the worst crime that can be done against women. It not only harms women physically but impacts her mentally and emotionally as well. The crime of rape when leaves the victim pregnant it becomes unbearable for her and she might not get the motherly instincts and love to raise the child. 

Well, abortion is legal in India for the rape victims, where the rape victims can also file the petition before High Court or Supreme Court for the termination of pregnancy, even if the pregnancy has lapsed 20 weeks. 

In the recent times, it has been that various petitions have been filed by the rape victims between 10-16 years of age and certain petitions have been allowed by the court where it did not harm the health or life of the pregnant women but where the health or life of the pregnant women was at stake, the court does not allow for the abortion procedure.

If the act of ending the pregnancy is done in good faith believing it to protect the life of the pregnant woman, then even if there is no actual danger or threat, the act of abortion is legal in India. 

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When is abortion illegal in India?

As you already know that IPC also governs the laws relating to abortion in India, Sections 312 to 316 of the Indian Penal Code 1860 lays down the situations as to when abortion is illegal and punishable under the law.

The law states that causing a miscarriage of a pregnant woman is a crime under the Code and any person who voluntarily causes a woman with miscarriage will be punished with imprisonment of up to three years and/or fine, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman.

If the woman is quick with the child, such person will be punished with imprisonment of up to 7 years along with fine. 

Even if a woman herself causes her miscarriage, then she would able be liable under the law. A woman who causes herself to miscarry also comes under this provision. Under the law, abortion in India is illegal in 2 conditions: 

  • When a woman is with child, which means the situation when the gestation has begun.

  • When the woman is quick with child, which means that the child’s motion is felt by the mother.

However, abortion in India is permitted under Section 312 on ‘therapeutic grounds’. This means that if the abortion is caused in order to protect the life of the mother, then it would not be considered as an offence.

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