To know whether Abortion 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, which is the law relating to abortion defines it as an untimely termination of the foetus.
There is a specified legal time for abortion in India and when you don't follow it, it's a punishable offence.
When you terminate the pregnancy after the prescribed legal period for an abortion in India, it's called foeticide. And when you terminate before that, it's termed an abortion. India, however, has certain abortion laws that elaborate on the conditions like:
- the legal abortion time limit in India
- explaining its legality in different scenarios
- punishment for abortion 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 as per the Abortion Law in India.
The term abortion refers to the deliberate medical termination of pregnancy in India, 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 one must do under the supervision of a physician.
- Surgical Abortion: If a woman wishes to undergo an abortion beyond seven weeks of gestation, then one can perform a surgical abortion. These are much more effective than a medical abortion, with a lower risk of an incomplete procedure.
In this blog, we'll answer many of your queries like, till how many months abortion is possible in India, legalities concerning it and what is the punishment for illegal abortion in India.
Table of Contents:
Consult: Expert Civil Lawyers in India
What are abortion laws in India?
While abortion rights in India have been subject to many debates and discussions, however, abortion of a foetus is still considered both inhumane and criminal. There are various abortion laws that govern the legality or illegality of abortion in India such as:
Indian Penal Code - Till 1971, Indian Penal Code (IPC) provided for the provisions of abortion in India. Legally, however, IPC does not provide for direct provisions related to abortion. But it does deal with miscarriage under section 312 to 316 of the code.
Medical Termination of Pregnancy Act - Also known as the abortion act in India. It deals with the provisions of abortion laws in India. The act provides that you may terminate a pregnancy until the first 12 weeks of it with the approval of a medical practitioner. For abortion between 12-20 weeks of pregnancy, you require the approval of two medical practitioners. The approval is mandatory to make sure that abortion taking place is in accordance with the laws in India or not. The act does not provide for sex-selective abortions.
Who can perform an Abortion in India under the Law?
After clearing your confusion on whether “abortion legal in India?” You need to know that there are abortion laws in India which need to be followed in order to perform it.
While every medical institution which has the license to perform medically assisted abortions in India by the government must display an issuing certificate by the government as well.
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 termination of pregnancy in India.
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 has registration before enactment the MTP 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.
When is abortion legal in India?
Well, the answer to the much-pondered question - “ls abortion legal in India” is - Yes!
Abortion in India is legal under some circumstances and illegal in others. The abortion laws in India say that if the person getting an abortion is an adult, then you need no parental or spousal approval for it.
There is no legal age for abortion in India, however, the prescribed legal abortion weeks in India are 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 proceed with the procedure, along with the signs of two registered medical practitioners.
Related Read: Pregnant Mothers Rights
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.
Often cases come up of pregnancy before marriage in India. Young girls who indulge in love, often face this fate without using protection while having intercourse. In such cases, to save the dignity of the family abortion then seems to be the only way out.
One might ask till when can you get an abortion in India?
Well, you can perform an abortion in India until the 20th week of pregnancy as per the MTP Act. You require the opinion of a second doctor if the pregnancy is past its 12th week as per the abortion law, India.
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
If the pregnancy endangers the woman's physical or mental health.
The foetus has a substantial risk of physical or mental handicap.
A woman contracts rubella (German measles) during the first three months of pregnancy.
Any of a woman’s previous children had congenital abnormalities.
The foetus is suffering from RH disease.
Exposure of the foetus to radiation.
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, you require permission of certain persons. Like, if a woman is married, her own written consent is sufficient. No requirement for her husband’s consent then.
Suggested Read: The Gruelling Reality of Sex Determination in India
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 abortion laws in India for unmarried girls state that the legal age of abortion is 18 years.
A woman who is unmarried and over 18 years of age can provide her own written consent to get an abortion. Legal age if below 18 years, then you must have written consent. This consent has to come from her guardian along with a specific reason for the abortion of pregnancy.
The legal abortion time period in India is 12 weeks of the foetus for any unmarried girl, by any registered medical practitioner. But, if a woman is mentally unstable, then there must be 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 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. Also, she might not feel the motherly instincts of raising the child with love.
Therefore, abortion is legal in India for rape victims. Here the rape victims can also file the petition directly before the High Court or Supreme Court for the termination of pregnancy and demanding a legal abortion in India. Even if the pregnancy has lapsed 20 weeks of the legal abortion period.
In recent times, it has been that various petitions have been filed by the rape victims between 10-16 years of age. Even certain petitions have got an allowance from 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. As in believing 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.
When is abortion illegal in India?
As IPC also governs Indian abortion laws, so Sections 312 to 316 of the Indian Penal Code 1860 lays down situations. These state 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.
Also, any person who voluntarily causes a woman with miscarriage will face punishment imprisoning up to 3 years and fine. Especially, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman.
Under the law, abortion in India is illegal in two conditions:
When a woman is with child, it means the situation when the gestation has begun.
When a woman is quick with child, it means that the child’s motion is felt by the mother.
If child abortion in India happens with the woman who is quick with the child, then such a 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 to be liable under the law. A woman who causes herself to miscarry also comes under this provision.
However, abortion in India is permissible under Section 312 on ‘therapeutic grounds’. This means in order to protect the life of the mother, if abortion is necessary, then it's not an offence.