Over The Last 50 Years, Abortion Has Been Legal In India In Different Circumstances

Over The Last 50 Years, Abortion Has Been Legal In India In Different Circumstances

Despite of their racial, ethnic, or religious background, anyone should have access to a number of human rights without facing discrimination or repercussions. Freedom depends on the inherent dignity of each member of the human family and their recognition of their equal and inviolable rights. The right to a human life is the most important of all human rights. Human rights are the most sacred rights for which exceptions cannot be granted.

It is not possible to exercise these rights. Against the International Covenant on Civil and Political Rights, Article 6(1) of the Covenant prohibits arbitrarily depriving someone of their life. However, there are some controversial issues associated with this right. Let’s take say an example, that involves the conversation surrounding abortion rights. The right of women to have an abortion is one of the other rights they should have, because it is considered a universal right. Mother’s rights should be weighed against fetal rights, but mothers’ rights need to be protected.

Earlier on, the right to abortion was not allowed and was strongly protested by society. Historically, termination of pregnancy would have been considered killing the fetus. In the modern generation, but all of you can see, with the development of technological advancements, this right has been legalized by mostly all of the countries over the world after the famous Roe vs Wade court ruling by the US Supreme Court. The opposition is still there, but we have seen that people strongly believe that it ought to be prohibited by law.

This whole article is aimed at addressing the question of shall an expectant mother has a right to an abortion in comparison with the right to life of the unborn. What are the international instruments sanctioning abortion rights? And what is India’s position on this problem?


Medical termination of pregnancy (MTP) has been legal in India under different conditions for the past 50 years since the Medical Termination of Pregnancy Act of 1971 was passed. Amendments to the Abortion Act of 1973 ensured women had access to legal and safe abortions in 2003

What is Abortion?

Abortion is defined by the Wikipedia Dictionary as:

Abortion refers to the removal or expulsion of an embryo or fetus from the uterus, which causes, or results in, death for the embryo or fetus.
During an unplanned pregnancy, miscarriage can occur spontaneously or be triggered by surgery, dosing, or other methods. Abortion is used more or less as a term to describe a method that can be performed at any time during pregnancy. ..

Human rights should make abortions be legal

It is no secret that abortion has been a contentious historical problem for a long time. In the context of complex ethical, moral, and legal issues, it is essential to understand that a specific person’s values directly impact their position. An individual’s position on abortion is formed by combining an individual’s belief in abortion morality with an understanding of the ethical boundaries of 4,444 legitimate government agencies.

Women’s rights, including the right to life, liberty and the pursuit of happiness, guarantee the right to abortion. Women’s reproductive and sexual health are important factors in determining reproductive health. In every country in the world, people recognize the importance of women’s reproductive rights for the development and promotion of human rights. Several governments around the world have been working on promoting reproductive rights in unprecedented ways in recent years. Official laws and policies are indicators of a government’s willingness to protect and promote reproductive rights. Control of the body is every woman’s right and is usually called as the right of the body.

Human rights require that abortions be legal

It is no secret that abortion has been a contentious topic throughout history. In the context of complex ethical, moral, and legal issues, it is essential to understand that a specific person’s values directly impact their position. An individual’s position on abortion is formed by combining an individual’s belief in abortion morality with an understanding of the ethical boundaries of 4,444 legitimate government agencies.

 Women’s rights, including the right to life, liberty and the pursuit of happiness, guarantee the right to abortion. Women’s reproductive and sexual health are important factors in determining reproductive health. In every country in the world, people recognize the importance of women’s reproductive rights for the advancement and promotion of human rights. Several governments around the world have been working on promoting reproductive rights in unprecedented ways in recent years. Official laws and policies are indicators of a government’s willingness to protect and promote reproductive rights. Control of the body is every woman’s right and is commonly referred to as the right of the body.


The right to abortion is granted to a woman if:

  • In the case of continued pregnancy, the risk to the life of the pregnant woman would be surpassed if the pregnancy were stopped or cancelled
  • #1 To prevent grave and serious injury to the pregnant woman’s physical or mental health, she must terminate the pregnancy
  • The continued pregnancy would increase the risk of injury to the pregnant person’s physical or mental health, compared to what would occur if the pregnancy was either stopped or cancelled
  • Continuation of the pregnancy would increase the risk of harm to the physical or mental health of any available children from any family of the pregnant woman, as compared to terminating it.
  • If the child were born today, there would be a substantial risk that it would suffer from physical and mental abnormalities that would severely handicap the person.
  • In an emergency, a physician must certify that the child should receive the following treatment:

Whenever possible, pregnant women should be saved from death or from grave permanent harm to their physical or mental health.

Abortion as a human right: International instruments

Abortion is legal until the month of the fourth trimester according to information from the Article (1) American Declaration of Rights and Duties of Man and the Inter American Commission on Human Rights. In Article 6(1) of the International Covenant on Civil and Political Rights, as well as in Article 2 of the European Convention on Human Rights as well as in Article 4 of the African Charter on Human and Peoples’ Rights, the right to life is recognized as a human right.

On the other hand, they are silent on the question of when does life begin. Nonetheless, the interpretations have caused us to believe that the child is not to be protected from its conception onwards. To achieve balance, the rights of the mother must be considered alongside the rights of the fetus.

The courts and tribunals of the international community have not tackled the difficult philosophical issue of when life begins, but have instead considered the meaning of the language used in the relevant treaty. It is generally accepted that every human being is not meant to include an unborn foetus when the references to everyone or every person are made.

There have been several international bodies that uphold the right of a woman to have an abortion on the basis that it must be her private life. There has been an argument made that women have the right to receive information about abortion options under multiple rights, including the rights to free speech and to information. There may also be instances when the right to access abortion is also based on the right of a woman to make conscious choices about how many children she wants.


According to a CBS News survey conducted in January 2006, 27% of viewers believe abortion should be permitted under all circumstances, 15% believe greater restrictions should be enacted, 33% say it should only be permitted in cases such as rape, incest, or life-threatening conditions, while 17% say abortion should only be permitted if the woman’s life is at risk. Only 5% of respondents said abortion should never be allowed. During the April 2006 Harris poll on Roe v. Wade, the following question was asked: “Do you favor or oppose the parts of Roe that allow abortions up to three months of pregnancy?”. In the affirmative, 49 percent of respondents responded.


Roe vs. Wades (1973): Historical Supreme Court ruling. Roe v. Wade Wade is one of the most politically important Supreme Court decisions in history. It changed US politics, divided the country between conservatives and liberals, and stimulated a grassroots movement. The US Supreme Court has made a groundbreaking decision to find abortion law the most common violation of an individual’s rights.

These rulings abolish laws that limit or prohibit abortion nationwide. Rape said Jones Law caused the pregnancy. She demanded an abortion. The court said it weighed the legitimate interests of the state against the constitutional rights of the individual, based on the state’s medical knowledge at the time of the ruling.

The state cannot limit a woman’s ability to have an abortion in the first trimester, but while the foetation is viable in the third trimester, the second trimester  ” in a proper way to affect the health of the mother ” . You can regulate the abortion procedure. The state may even limit or ban abortion at its sole discretion.

 Roe v Wade is a parental consent law, parental notice law, spouse consent law, spouse notice law, law, and the law requiring abortion in hospitals rather than clinics for minors wishing to have an abortion. Has brought about various state laws that limit abortion, including banned laws. Government funding for abortion, and a law banning abortion very late. In a series of rulings from the late 1970s to early 1980s, the Supreme Court overturned abortion restrictions in several states.


According to Article 7 of the Canadian Charter, the Supreme Court has interpreted it. It guarantees life, freedom, freedom and personal safety. Morgenthaler Smalling and Scott vs. R (1988) 44 DLR (4.) 385 was the first case in which the court dealt with the physical safety of pregnant women.

In accordance with the National Criminal Code, pregnant women wishing to have an abortion must submit a long application to the abortion clinic in order to get an abortion. Regardless of the outcome, the Supreme Court decided that the case was an infringement of the fundamental rights of Habeas Corpus. The result was that pregnant women had to experience psychological stress.

 In addition, under Article 2 of the 1967 Abortion Act of the United Kingdom, the foetation has no absolute right to life. This was confirmed in the case of Paton vs. the United Kingdom (1980) 3 EHRR408. If abortion is allowed, there is a risk of continued pregnancy. Pregnancy can be ended to save the life of the mother.

The life of the foetation is implicitly limited and can be terminated to protect the life of the mother. The same decision was made in H. Vs. Norway (1992) 73 DR 155). In addition, the US Supreme Courtruled in 1992 that all women have the same exclusive rights to abortion like any other medical treatment. It is not their right to seek opinions from future fathers.

From an Indian perspective

Under Indian law, abortion is permitted when the continuation of the pregnancy would cause grave harm to the physical or mental wellbeing of the pregnant woman.

Many women in India practised abortion previously. Due to the illegal nature of this practice, it was carried out in secret. A medical pregnancy termination was legalized with the passage of this act, but certain conditions were in place to protect the woman’s health.


Throughout Vedic, Upanishadic, the later puranic(old) and smriti literature, abortion is strongly condemned. Respecting the dignity and worth of every human life is essential to my practice. I will adhere to the Code of Ethics of the Medical Council of India from conception to death.

As a result of this, the Supreme Court held that Article 21 of the Constitution includes an implicit right to privacy, and that abortion is a constitutional right.

The Medical Termination of Pregnancy Bill was updated during the review period, and both Houses of Parliament passed it. The President of India gave his assent on the 10th August 1971.

Listed in the Statute Books as  ” The MTP Act ” , it came into effect in 1971. By law, women in the country are protected from being forced to suffer an unintended pregnancy by a registered medical practitioner in a hospital that is set up or maintained by the government, or in some other location designed by the government to meet the requirements of the law. Terminating a pregnancy is not possible in every case.

According to Section 3 of the said Act, a pregnant woman can terminate her pregnancy:

1) To ensure the safety of the women when they are in danger of their lives, or when they are at risk of physical or mental harm;

2) There may also be humanitarian grounds for such a decision – Pregnancy that results from crimes of sex, such as rape or sexual relations with lunatics, may also be a sex crime.

3) Thirdly, Eugenic grounds – where there is a substantial risk that, if born, the child would have severe deformities or diseases.


However, in this regard, women’s rights are questionable, since they depend on several conditions: Evidence that there is a risk to life or that there is serious damage to physical or mental health, evidence that there is a significant risk to the child’s physical or mental deformity In situations where abortion will only save her life, all of these must be ruled out by the practising physician.

In case of an unplanned pregnancy, can a woman ask the doctor to have an abortion because she currently does not want a child? An act of justification based entirely on other factors is not fair and rational if women’s liberty depends entirely on it. Also, modern law does not classify the period of pregnancy so that women’s interests and national interests do not take precedence in their domain.

We think that abortion may be decided entirely by a woman since she must be sane and of majority, age to make such a decision. Only in those cases where an abortion may affect her life may her freedom be circumscribed. Restrictions on the right to abortion are not acceptable in any other circumstance. There can be a variety of factors that influence a woman’s decision regarding abortion, such as her physical or mental health or the potential threat to the health of the child.

Among other important factors, there are also some physical or psychological factors. For instance, the family may not have enough money to accommodate an addition. This may be the time when she would like to change her profession, which would require free time and hard work.

It is likely that the wife and her husband are in great tension, and she likely will not want to have a child with him, as having a child with him might affect a future marriage. This is a long list of factors that are quite relevant and are not afforded any consideration in the Indian abortion law.

 Thus, the law is unreasonable and can potentially be found to violate the principle of equality guaranteed by Article 14 of the Constitution. Is it worthwhile to compensate a woman for all the mental and physical hardships she faces and for all the liabilities she has resulting from it?

Furthermore, it should be noted that the M.T.P. Act does not include protection for unborn children. A woman’s indirect protection is merely a by-product of the Women’s Reproductive Health Act’s primary purpose, which is to protect women from harm. According to the statute, both the rights granted and the restrictions imposed show that the very objective of the state is to safeguard women from potential risks associated with the abortion procedure. In this sense, the protection provided to the mother protects the unborn child.


There are several case laws relevant here:

  • Rajeswari versus State Of Tamil Nadu And Others

In this case, an unmarried 18-year-old girl is seeking a directive ordering that the pregnancy of the child in her womb is terminated, on grounds that bearing the unwanted pregnancy of the child of three months has caused great emotional distress in her, which would result in grave harm to her mental health. Because the pregnancy was caused by rape, she is suffering from a mental disorder. Consequently, the Court authorized the termination of the pregnancy.

  • Dr. Nisha Malviya versus Anr. Vs. State of M.P:

She was made pregnant by the accused after she committed rape on a minor girl aged about 12 years old. Several other co-accused are alleged to have abducted this girl and terminated her pregnancy. They are therefore charged with causing miscarriage without the consent of the woman first. In a verdict rendered by the Court, the three accused defendants were all declared guilty of illegal termination of pregnancy without consent by either the mother or the girl.

  • Murari Mohan Koley versus The State 2003

In this case, the woman wished to have an abortion even though she has a 6-month-old daughter. The woman approached the petitioner to obtain an abortion. It was permitted by the petitioner under certain conditions. Yet somehow, the condition of the woman deteriorated in the hospital and she was transferred to another one. However, she, unfortunately, passed away as a result. A procedure for abortion was not performed.


A medical practitioner who filed the petition had to prove that his action (including the omission as well) was done in good faith under section 3 of the MTP Act, 1971 to be exempt from criminal liability.

Abortion without mother’s consent in Bhagwan Katariya and others vs. the State of MP, 2000.

Navneet was the husband of the woman. Concerning Navneet, the applicants are the younger brothers, while Bhagwan Katariya is the father. In response to the complainant’s pregnancy, her husband and other family members expressed their disagreement, took her for abortion and got the procedure performed without her consent.

Based on Section 3 of the Medical Termination of Pregnancy Act, 1971, the Court determined that a doctor could terminate the pregnancy under particular circumstances, so if the termination of the pregnancy was following the law, the Court presumed, unconditionally, that the termination could not have been made without the consent of the woman. We are presented with a situation where an indelible scar has been crafted on the heart and soul of the woman by denying her of her child. It is the doctor who will be held accountable for this.

As a result, the case laws demonstrate that a woman has an absolute right to abortion and that no one can deny this right to her. Throughout history, the Judiciary has played a valuable role in securing these rights for women. Abortion is a fundamental right with equal protection under the law.

Choosing between the right to abortion of the woman and the right to life of the unborn

(Arguments in favour and in opposition)

There is no denying that abortion laws around the world are influenced by religious, moral, and cultural issues. Often, human rights such as the right to life, freedom, and security of an individual are invoked to justify the existence or absence of laws regarding abortion. In most countries where abortion is legal, one must meet specific criteria before a procedure can take place, sometimes, but not always, setting up a trimester-based system to regulate the window during which an operation is still legal.

 As a result, arguments presented in this debate for or against abortion tend to focus on either the moral permissibility of induced abortion or the justification of laws allowing or restricting abortion. It is common for arguments related to morality and legality to collide and combine, complicating the question at hand. It is not uncommon for advocacy groups belonging to one of two camps to lead abortion debates, especially when it comes to abortion laws.

In many cases, those in favour of legal restrictions on abortion describe themselves as pro-choice while those opposed to legal restrictions on abortion describe themselves as pro-life. It is used to refer to the central question of abortion in arguments for and against. If you are a pro-life advocate, your question would be  ”  Is the fetus a human being with a fundamental right to life  ” , while you are a pro-choice advocate, your question would be ” Is a woman entitled to decide whether or not to have an abortion  ” .

Arguments in opposition to abortion

Pro-life activists offer the following arguments supporting their position on abortion prohibition:

: · The issue of the fetus’s life, which raises the question of whether one person’s desire for autonomy can extend to ending another person’s life.

In addition to a fetus being an innocent life, killing an innocent person is also illegal.

It is common for women who have had abortions to suffer from severe emotional trauma.

It is also possible that women are more likely to develop breast cancer in later life if they have had an abortion. Other complications of the surgery include damage and/or infection of the uterus and Fallopian tubes, which can lead to infertility. The procedure may also cause menstrual disturbances.

The idea of aborting fetuses due to their possible disability sends an implicit message of rejection to people with disabilities.

The embryo (or, at later stages of development, a fetus) may be considered a human being, entitled to protection from the act of conception to birth

Consequently, the moment of conception is the beginning of life and must therefore be respected. This argument suggests abortion is murder.


Arguments in Favor of Abortion

In favour of legalizing abortion, the following arguments can be made:

In the first argument, we have the notion of body sovereignty. Women have the sole right to make decisions about what happens to them – no one should force them either to carry or to terminate a pregnancy against their will.* Most abortions are performed to safeguard the mental health of the woman.

Abortion may also be done to safeguard the life of the fetus, since carrying a pregnancy would pose a risk for the mother’s life. If the pregnancy is continued, the fetus may be damaged causing danger to the mother’s life.

In the event abortion is banned, or just made more restrictive, we’d return to the days of backstreet abortions. The past has been accompanied by wild claims concerning the health risks these procedures pose for women. The women are resorting to some unhygienic methods to terminate the pregnancy.

A person who performs an abortion to save the mother’s life when it is required, however, the reasoning is not that the fetus is seen as being of lesser worth than the mother, but rather that if no action is taken, both parties will die. If something goes wrong with the fetus, it will at least save the mother’s life.

Imagine a situation where abortions were banned. Women would not want to carry a pregnancy, so they would abandon her child when it was time to deliver. A situation like that would be more dangerous to the female child. The decision should be made to terminate the pregnancy sooner rather than later.


The practice of abortion and infanticide was quite widespread among savages, semi-civilized races, and even sophisticated ones in ancient and primitive times. However, in the modern era, better laws are protecting unborn children. In the Old Testament, the punishment and compensation provided for hurting a pregnant woman are proof of this. A human equivalent is offered to the unborn, at least for purposes of protection.

As times have changed in remarkable ways, each individual has the right to sovereign bodily integrity, and human rights instruments serve to protect these rights around the world. Thus, abortion becomes a matter of securing every woman’s right to abortion.

Last Thoughts About Abortion:

According to Tamil Saint Thiruvalluvar:

 ” The pleasure of touching a child is the pleasure of the body. The pleasure of  hearing him is the pleasure of hearing him speak. ”  As a mother, it is a natural duty to provide the best possible care for her child. However, depending on the circumstances, some activities can negatively affect the unborn child. This can occur as a result of ignorance, negligence, or deliberate behaviour. If she chooses to have an abortion, the mother should make that decision for herself.

However, the fetus must kept safely with the help of the feasibility of the law. Public institutions and government agencies with responsibilities for the fetus also benefit the mother. A mother does not have the legal right to destroy her fetus, and therefore cannot exercise that right. Her only right is to perform an abortion operation on her. She should also note that giving birth to 20 million babies a year will place a greater strain on the country’s resources and health care services than performing 1 to 5 million abortions per year, for example.

As well as protecting the unborn, the law must also ensure the rights of the mother. To foster hospitality, we should provide support for mothers who are lonely and scared, and for babies who are left alone and abandoned. The women who are expecting an unplanned pregnancy need all the love and support they can get and we need to assist them in finding alternative compassionate solutions to abortion.

edited and proofread by nikita sharma

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