Abortion has been legal in India under various circumstances with the introduction of the Medical Termination of Pregnancy (MTP) Act, 1971. The Medical Termination of Pregnancy Regulations, 2003 were issued under the Act to enable women to access safe and legal abortion services. In 2021, MTP Amendment Act 2021 was passed with certain amendments to the MTP Act 1971, such as women being allowed to seek safe abortion services on grounds of contraceptive failure, an increase in gestation limit to 24 weeks for special categories of women, and opinion of one abortion service provider required up to 20 weeks of gestation. Abortion can now be performed until 24 weeks of pregnancy as the MTP Amendment Act 2021 has come into force by notification in Gazette from 24 September 2021. The cost of the abortion service is covered fully by the government's public national health insurance funds, Ayushman Bharat and Employees' State Insurance with the package rate for surgical abortion being set at inr 15500 which includes consultation, therapy, hospitalization, medication, ultrasound, and follow-up treatments. For medical abortion, the package rate is set at inr 1500 which includes consultation and USG.

Types of Abortion

When a woman gets a pregnancy terminated voluntarily from a service provider, it is called induced abortion. Spontaneous abortion, also known as miscarriage, is the loss of a woman's pregnancy before the 20th week. This type of abortion can be physically and emotionally painful. Until 2017, there was a dichotomous classification of abortion as safe and unsafe. Unsafe abortion was defined by the World Health Organization (WHO) as "a procedure for termination of a pregnancy done by an individual who does not have the necessary training or in an environment not conforming to minimal medical standards." However, with abortion technology now becoming safer, this has been replaced by a three-tier classification of safe, less safe, and least safe permitting a more nuanced description of the spectrum of varying situations that constitute unsafe abortion and the increasingly widespread substitution of dangerous, invasive methods with the use of misoprostol outside the formal health system.

Abortion law in India

Before 1971 (Indian Penal Code, 1860)

Before 1971, abortion was criminalized under Section 312 of the Indian Penal Code, 1860, describing it as intentionally "causing miscarriage". Except in cases where abortion was carried out to save the life of the woman, it was a punishable offense and criminalized women/providers, with whoever voluntarily caused a woman with child to miscarry facing three years in prison and/or a fine, and the woman availing of the service facing seven years in prison and/or a fine. It was in the 1960s, when abortion was legal in 15 countries, that deliberation on a legal framework for induced abortion in India was initiated. The alarmingly increased number of abortions taking place put the Ministry of Health and Family Welfare (MoHFW) on alert. To address this, the government of India instated a committee in 1964 led by Shantilal Shah to come up with suggestions to draft the abortion law for India. The recommendations of this committee were accepted in 1970 and introduced in the Parliament as the Medical Termination of Pregnancy Bill. This bill was passed in August 1971 as the Medical Termination of Pregnancy Act, which was authored by Sripati Chandrasekhar.

Shah committee key highlights

Abortion incidence in India

A study in 2018 estimated that 15.6 million abortions took place in India in 2015. A significant proportion of these are expected to be unsafe. Unsafe abortion is the third largest cause of maternal mortality leading to death of 10 women each day and thousands more facing morbidities. There is a need to strengthen women's access to CAC services and preventing deaths and disabilities faced by them. The last large-scale study on induced abortion in India was conducted in 2002 as part of the Abortion Assessment Project. The studies as part of this project estimated 6.4 million abortions annually in India.

The Medical Termination of Pregnancy Act, 1971

The Medical Termination of Pregnancy (MTP) Act, 1971 provides the legal framework for making CAC services available in India. Termination of pregnancy is permitted for a broad range of conditions up to 20 weeks of gestation as detailed below: "* When continuation of pregnancy is a risk to the life of a pregnant woman or could cause grave injury to her physical or mental health; The MTP Act specifies — (i) who can terminate a pregnancy; (ii) till when a pregnancy can be terminated; and (iii) where can a pregnancy be terminated. The MTP Rules and Regulations, 2003 detail training and certification requirements for a provider and facility; and provide reporting and documentation requirements for safe and legal termination of pregnancy.

Who may terminate a pregnancy

As per the MTP Act, pregnancy can be terminated only by a registered medical practitioner (RMP) who meets the following requirements: (i) has a recognized medical qualification under the Indian Medical Council Act (ii) whose name is entered in the State Medical Register (iii) who has such experience or training in gynaecology and obstetrics as per the MTP Rules

Where a pregnancy may be terminated

All government hospitals are by default permitted to provide CAC services. Facilities in the private sector however require approval of the government. The approval is sought from a committee constituted at the district level called the District Level Committee (DLC) with three to five members. As per the MTP Rules, 2003 the following forms are prescribed for approval of a private place to provide MTP services:

Consent required for termination of pregnancy

As per the provisions of the MTP Act, only the consent of woman whose pregnancy is being terminated is required. However, in case of a minor i.e. below the age of 18 years, or a woman with mental illness, consent of guardian (MTP Act defines guardian as someone who has the care of the minor. This does not imply that only parent/s are required to consent.) is required for termination. The MTP Rules, 2003 prescribe that consent needs to be documented on Form C as detailed below:

Opinions required for termination of pregnancy

The MTP Act details that for terminations up to 12 weeks, the opinion of a single Registered Medical Practitioner (RMP) is required and for terminations between 12 and 20 weeks the opinion of two RMP's is required. However, termination is conducted by one RMP. The MTP Regulations, 2003 prescribe opinion of RMP/s to be recorded on Form I as detailed below:

The MTP Regulations, 2003

MTP Act, Amendments, 2002

The Medical Termination of Pregnancy (MTP) Act 1971, was amended in 2002 to facilitate better implementation and increase access for women especially in the private health sector.

MTP Rules, 2003

The MTP Rules facilitate better implementation and increase access for women especially in the private health sector.

Proposed Amendments to the MTP Act, 2014

The Government took cognizance of the challenges faced by women in accessing safe abortion services and in 2006 constituted an expert group to review the existing provisions of the MTP Act to propose draft amendments. A series of expert group meetings were held from 2006 to 2010 to identify strategies for strengthening access to safe abortion services. In 2013 a national consultation was held which was attended by a range of stakeholders further emphasized the need for amendments to the MTP Act. In 2014, MoHFW shared the Medical Termination of Pregnancy Amendment Bill 2014 in the public domain. The proposed amendments to the MTP Act were primarily based on increasing the availability of safe and legal abortion services for women in the country. Expanding provider base: In order to increase the availability of safe and legal abortion services, it has been recommended to increase the base of legal MTP providers by including medical practitioners with bachelor's degree in Ayurveda, Siddha, Unani or Homeopathy. These categories of Indian System of Medicines (ISM) practitioners have Obstetrician and Gynecology (ObGyn) training and abortion services as part of their undergraduate curriculum. It has also been recommended to include nurses with a three and half-year's degree and registered with the Nursing Council of India, into the base of legal providers for abortion services. In addition, it has also been recommended that Auxiliary Nurse Midwives (ANM) posted at high case load service delivery points be included as legal providers of MMA only. These recommendations are supported by two Indian studies that conclude abortions can safely and effectively be provided by nurses and AYUSH practitioners. Provisions to increase the gestation limit for abortions: It is recommended to increase the gestational limit for seeking abortions on grounds of fetal abnormality beyond 20 weeks. This would result in making abortion available at any time during the pregnancy, if the fetus is diagnosed with severe fetal abnormalities. In addition, further to the above recommendations, it is also proposed to include increasing the gestation limit for safe abortion services for vulnerable categories of women expected to include survivors of rape and incest, single women (unmarried, divorced, or widowed) and other vulnerable women (women with disabilities) to 24 weeks. The amendments to the MTP Rules would define the details for the same. Increasing access to legal abortion services for women: The Act in its current form imposes some operational barriers that limit women's access to safe and legal abortion services. The amendments propose to:

MTP Amendment Act, 2021

On 29 January 2020, Government of India first introduced the MTP Amendment Bill 2020, which was passed in Lok Sabha on 17 March 2020. A year later, the Bill was placed in Rajya Sabha and was passed on 16 March 2021 as the MTP Amendment Act 2021. The Amendments are as below:

MTP Rules, 2021

The new rules as per the amendments were announced by the government on October 12. Following are the revised rules as per the amendment act:

Role of the medical board

The Medical Board shall consist of the following

Policy and Programmatic Interventions of the Government

The MTP Act 1971 provides the legal framework for provision of induced abortion services in India. However, to ensure effective roll-out of services there is a need for standards, guidelines and standard operating procedures. The Government of India has taken several measures to ensure the implementation of the MTP Act and make CAC services available to women. Some of them include:

Medical Methods of Abortion (MMA)

MMA is a method of termination of pregnancy using a combination of drugs. These drugs have been approved for use in India by the Drug Controller General of India. MMA has been globally recognized as a method of choice for women seeking CAC services. World over, women prefer to adopt MMA while seeking safe abortion services given the confidentiality and safety it offers to them. However, the unavailability of drugs has hindered access to safe abortions across India. Foundation for Reproductive Health Services India (FRHS India) published a research report on the Availability of Medical Abortion Drugs in the Markets of Six Indian States, 2020. This report indicated that about 56% chemists reported regulatory barriers to stocking and sale of these drugs. Moreover, the conflation in the MTP Act and the DCGI approval for usage of MA drugs only exacerbates the problem further. The MTP Rules allow an approved provider to prescribe MA drugs at his/her clinic (explanation to section 5 of the MTP Rules 2003). Whereas, labelling guidelines issued by the Central Drugs Standards Control Organisation (CDSCO, DTAB-DCC Division) dated 9 August 2019 says "Warning: Product to be used only under the supervision of a service provider and in a medical facility as specified under the MTP Act 2002 and MTP Rules 2003". The MTP Rules 2003 does not state that the product should be used only in a medical facility. The Comprehensive Abortion Care: Training and Service Delivery Guidelines 2018, Ministry of Health and Family Welfare, Government of India states that MA drugs can be used by a client at home at the discretion of the provider. However, this labelling guidance is being interpreted to say that MA drugs cannot be sold in retail. The CDSCO guidance contravenes the MTP Rules, which allows prescription of MA drugs.

Technical Material on MMA

Community Mobilization for RMNCHA activities

Community health workers bridge the gap between community and the health system. ASHA's play a significant role in provision of information about health services, establishing linkage between and health facilities, providing community level health care and as an activist, building people's understanding of health rights and enables them to access their entitlements at the public health facilities to women on a range of issues including CAC. The National Health Systems Resource Centre (NHSRC) has worked closely with the MoHFW to develop training packages for Accredited Social Health Activist (ASHA) to enable them to provide the required information to women at the community level and facilitate linkages with the facilities. ASHA training modules developed by MoHFW and NHSRC are a key component under the National Health Mission to provide ASHAs with information on relevant topics. Information on CAC and related topics is available in three of seven modules:

Communication on CAC

CAC service is an integral component of the maternal health programme under NHM. However, awareness among men and women about legality as well as availability of abortion services is very low. IDF too has conducted studies to understand the awareness about abortion legality among men and women and found that awareness and legality was low. Even though some of the people are aware of their legal rights regarding abortion, they are unaware of where they can access abortion services. This non-accessibility of abortion services is primarily on moral and political grounds. Also, women are not readily supplied with information about abortion services, nor about the option of abortion unless in emergency circumstances or cases where the baby is unhealthy.

Statistics

Globally, 56 million abortions take place every year. In South and Central Asia, an estimated 16 million abortions took place between 2010 and 2014, and 13 million abortions occurred in Eastern Asia alone. There is significant variance in the estimates for the number of abortions reported and the total number of estimated abortions taking place in India. According to HMIS reports, the total number of spontaneous/induced abortions that took place in India in 2016–17 was 970,436, in 2015–16 was 901,781, in 2014–15 was 901,839, and in 2013–14 was 790,587. It is reported that ten women die every day in India due to unsafe abortions. The Guttmacher Institute, New York, International Institute for Population Sciences (IIPS), Mumbai and Population Council, New Delhi conducted the first study in India to estimate the incidence of abortion. The results from this study were published in Lancet Global Health journal in December 2017 in the form of a paper titled "The incidence of abortion and unintended pregnancy in India, 2015".

This study estimates that 15.6 million abortions took place in India in 2015. 3.4 million (22%) of these took place in health facilities, 11.5 million (73%) were done through medical methods outside facilities, and 5% are expected to have been done through other methods. The study further found the abortion rate at 47 abortions per 1000 women aged 15–49 years. The study highlights the need for strengthening public health system to provide abortion service delivery. This would include ensuring availability of trained providers, including non-allopathic providers by amending the MTP Act and expanding the provider base as well as streamlining availability of drugs and supplies. Another strategy is to streamline the process of approving private-sector facilities to provide CAC services and strengthening counseling and post-abortion contraception services in efforts to strengthen quality of care for women seeking CAC services. Prior to this study, the last available estimate for incidence of abortion at 6.4 million abortions per year in India was from the 'Abortion Assessment Project — India'. This was a multicentre study of 380 abortion facilities (of which 285 were private) carried out across six States. The study found that "on average there were four formal abortion facilities (medically qualified though not necessarily certified to carry out abortions) per 100,000 population in India and an average of 1.2 providers per facility". Out of the total formal abortion providers, 55% were gynecologists and 64% of the facilities had at least one female provider. The study further found that only 31% of the reasons for seeking abortion by women were within grounds permitted under the MTP Act, the other reasons being unwanted pregnancy, economic reasons and unwanted sex of the foetus.

Methods of abortion

Manual vacuum aspiration

Manual vacuum aspiration (MVA) is a "safe and effective method of abortion that involves evacuation of the uterine contents by the use of a hand-held plastic aspirator", which is "associated with less blood loss, shorter hospital stays and a reduced need for anesthetic drugs". This method of abortion is recommended by the WHO for early termination of pregnancy.

Electric vacuum aspiration

Electric vacuum aspiration (EVA) is similar to the MVA insofar as it involves a suction method, but the former uses an electric pump to create suction, instead of the hand-operated pump in MVA.

Medical abortion

Medical abortion is the termination of pregnancy by drugs. It is a "non-invasive method of ending an unwanted pregnancy that women can use in a range of settings, and often in their own homes". The two drugs approved for use in India are mifepristone and misoprostol. In India, use of these drugs (mifepristone and misoprostol) for termination of pregnancy is approved up to nine weeks. This method can increase access to safe abortion services for women since it allows providers to offer CAC services where MVA or other abortion methods are not feasible.

Dilation and curettage

The only abortion technique available when abortion was decriminalized in India in 1971 was the dilation and curettage (D&C) method. This dated method is an invasive medical procedure which requires "the use of anesthesia for removing products of conception using a metal curette", often running the risk of hemorrhage or uterine infections. WHO and FIGO issued a joint recommendation which stated that properly equipped hospitals should abandon curettage and adopt manual/electric aspiration methods.

Miscarriage leave

India was the first country to legalize miscarriage leave. The Maternity Benefit Act 1961 states that in case of miscarriage, a woman will be entitled to paid leave for six weeks immediately following the day of her miscarriage. Women are required to submit proof for miscarriage and willful termination of pregnancy (abortion) is excluded. Additionally, women with illness arising out of miscarriage shall, on production are also entitled to paid leave of up to one month on submission of relevant medical proofs.

Reasons for unsafe abortions

Almost 56% of abortions in India are under the category of unsafe. Unsafe abortions is a common recourse for most women in the country, including in the rural pockets, due to various social, economic and logistical barriers. Stigma is another dimension that prevents women from seeking abortions from approved facilities. Despite India's extensive efforts to improve maternal and reproductive health, wide geographical disparities exist between its urban and rural population. Interventions at various socio-ecologic and cultural levels, along with improved health literacy, access to improved health care and sanitation need attention when formulating and implementing policies and programs for equitable progress towards improved maternal and reproductive health. Unsafe abortion, the third leading cause of maternal deaths in the country, contributes eight per cent of all such deaths annually with 13 women dying each day. Several factors contribute to women opting for abortion outside the accredited abortion centers including:

Profile of women seeking abortion

A client profile study focusing on the socio-economic profiles of women seeking abortion services, and costs of receiving abortion services at public health facilities in Madhya Pradesh, India, revealed that "57% of women of who received abortions at public health facilities were poor, followed by 21% moderate and 22% rich. More poor women sought care at primary health level facilities (58%) than secondary level facilities, and among women presenting for post-abortion complications (67%) than induced abortion." Further, the study found that women admitted to spending no money to access abortion services as they are free at public facilities. Poor women, it was reported, "spend INR 64 (USD 1) while visiting primary level facilities and INR 256 (USD 4) while visiting urban hospitals, primarily for transportation and food". The study concluded that the "improved availability of safe abortion services at the primary level in Madhya Pradesh has helped meeting the need of safe abortion services among poor, which eventually will help reducing the maternal mortality and morbidity due to unsafe abortion".

Safe abortion and POCSO Act

The Protection of Children from Sexual Offences (POCSO) Act defines a child as any person below eighteen years of age, and defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography. The said Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine. Although the Act safeguards the life and rights of children, it fails to differentiate between 'consensual sex' and offence and also does not address the grey area of 'early marriage'. Any sexual activity with persons below the set age i.e. 18 years is deemed as statutory rape. As the act fails to differentiate between offense and consent, it poses a huge barrier to access to sexual and reproductive health services for adolescents. Moreover, the Act has the requirement of mandatory reporting and failing to do so can lead to penalty with imprisonment or a fine. This requirement impacts adolescents' sexual and reproductive health (SRH), as it results in denial of variety of SRH services such as contraception, medical help for sexually transmitted infections, etc. Health professionals are playing safe not to get entangled in legal proceedings thereby impacting SRH services. The mandatory reporting also hinders access to safe abortion services for adolescents. The conflation between POCSO and MTP Acts result in denial of services for consensual as well as sexual assault of minors. Earlier the MTP Act required the consent of a guardian for a minor and that still remains, but due to POCSO Act, the mandatory reporting complicates the issue, and providers are wary of delivering safe abortion services to minors, even in case of assault, ensuing many to seek unsafe abortions to avoid legal hassles; and to further complicate parents exploiting this to harass children or their partners with imprisonment of 7 to 10 years.

Safe abortion and gender-biased sex selection

Gender-biased sex selection and safe abortion are mutually exclusive issues within the purview of Indian law. While the MTP Act provides a framework for provision of abortion services, the PC&PNDT Act regulates the misuse of diagnostic techniques for determination of sex of the foetus. Both the laws have a very clearly defined purpose, however, there is still conflation in the implementation of the two laws. Due to the stringent implementation of the PC&PNDT Act, many doctors are afraid or are reluctant to provide MTP services due to the possibility of undergoing inspection and facing legal issues, thus creating great hindrance for accessing safe abortion services. By conflating the two, confusion is being created in the minds of the public against a basic right of women. Even government posters for "awareness generation" of the public with respect to sex determination have been found to use the terminology of "bhroon hatya" or "foeticide" rather than "abortion" — a term that indicates a homicidal criminal activity of taking "a life". These incorrect messaging and unawareness has serious implications on access to safe abortion services for women. For addressing this issue a group of organizations and individuals working on the issue came together to launch Pratigya Campaign for Gender Equality and Safe Abortion in 2013. The campaign provides a platform to address the issue of sex selection while protecting women's right to safe, legal abortion services in India. The campaign also created an information kit for the media on the subject.

Impact of COVID-19 pandemic on access to safe abortion services

The nationwide lockdown imposed from 25 March onwards in an effort to combat the COVID-19 pandemic, adversely impacted contraceptive and safe abortion access. Ministry of Health and Family Welfare, Government of India suspended essential contraception services a week before the lockdown and issued a guidance advising that sterilizations and intrauterine contraceptive devices (IUCD) services should not be resumed until further notice. As a fallout of lockdown due to COVID-19, over 20 million couples in the country were deprived from availing contraceptives and terminating unintended pregnancies. According to a report by IDF, around 1.85 million abortions, i.e. 50 percent of the number of abortions that would have taken place in this period normally, may have been compromised as a result of restriction on travel due to the lockdown from March to June in 2020. This would have resulted in a large number of unwanted pregnancies being seen through, as well as unsafe abortions that can result in maternal deaths. A report by FRHS India estimates that the pandemic situation could lead to an additional 834,042 unsafe abortions and 1,743 maternal deaths in India. With limited mobility, increased reports of intimate partner violence, changes in living patterns of migrants, delays in accessing contraception and safe abortions, and potential changes to decisions about parenting, there is an increased need for safe abortion services in India due to the pandemic. Expanding telehealth to include information, support, and services around medical abortion can be a safe and revolutionary way to expand access to safe, legal abortion. Although according to WHO guidance, abortions in the first trimester can be safely self-managed as long as there is access to information and support, and to a facility in case of complications,40 in Indian law, abortions outside of health facilities without prescription from an RMP are currently illegal. Offering abortion through telehealth can provide clients a legal, safe, and supported experience: expanding the use of telemedicine for abortion can provide legal protection to those self-managing without a prescription, without having to meet physically with an RMP. Given the need for medical abortion in India and the already existing self-use in large numbers, the openness of clients and providers alike to use technology for health, and the established safety of abortion via telemedicine from global models, it is clear that there is appetite for abortion provision using telemedicine. Public sector provision of abortion has several challenges — lack of trained staff, equipment and supplies, and nonjudgmental care up to the legally permitted extent, to name a few.38 Telemedicine for abortion can not only help address gaps in the public sector provision of safe abortion but can also serve as a viable choice even when quality services are available since it would reduce the burden on the health infrastructure by reducing in-person visits and enhancing privacy and confidentiality needs of clients. By expanding telemedicine to include medical abortion, India can forge the way ahead for safe abortion access not just during the pandemic, but also creating an opportunity for long-lasting impact.

Recent court cases for late-term termination of pregnancy

The MTP Act allows for termination of pregnancy up to 20 weeks of pregnancy. In case termination of pregnancy is immediately necessary to save the life of the woman, this limit does not apply (Section 5 of the MTP Act). There are however cases of diagnosed foetal abnormalities and cases of women who are survivors of sexual abuse who have reached out to the Court with requests for termination of pregnancy beyond 20 weeks. A report by the Center for Reproductive Rights analyzed some of these cases that have come to court in a comprehensive report. Another report by Pratigya Campaign assesses the role of judiciary in access to safe abortion. The report highlights the growing increase in the number of cases reaching courts for permission. While a number of orders permitting termination are based on the opinion of the medical board and the jurisprudence already laid down in previous cases, there have been some groundbreaking judgments in the past years also, which have been highlighted. This lays emphasis on the necessity for the law to keep up with the changing times. It is imperative that access to abortion becomes a legal right for pregnant women at least in the first trimester. It is necessary that the opinion of the doctor, that the woman is consulting should be considered as primary and the only one required. The setting up of medical boards which has been done by the Courts while dealing with cases of this nature has only created further obstacles for women in accessing safe and legal abortion. Media has covered many of these cases actively. Listed below are some of the significant cases with requests for late term termination that have come to the court for permission.

September 2022 Supreme Court ruling

A three-judge bench of Supreme Court of India in Civil Appeal No. 5802 of 2022 made some findings on 29 September 2022. The judgement adds emphasis on women's right to bodily autonomy, sexual and reproductive choices, extended equal benefit of law to unmarried women and reduced number of hurdles like third party consent for adult women. The judgement defined "woman" as all persons who require access to safe abortion, along with cisgender women, thus including transpersons and other gender-diverse persons. The Court noted that medical practitioners commonly insist that abortion-seekers comply with extra-legal conditions, such as obtaining the consent of the abortion seeker's family, producing documentary proof, or judicial authorisation, and that, if such conditions are not met, they frequently deny the abortion service. It found this practice "lamentable". The Court remarked that medical practitioners should refrain from imposing such requirements and that only the woman's consent was material, unless she was a minor or mentally ill. It also stated that "every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorization from a third party" and that a woman is the ultimate decision-maker on the question of whether she wants to undergo an abortion." On the topic of the difference between the gestation period considered legal for married and unmarried women -- 24 weeks for the former and 20 weeks for the latter -- the Court ruled that the distinction was discriminatory, artificial, unsustainable and in violation of Article 14 of the Constitution of India, and that "all women are entitled to the benefit of safe and legal abortion." On the subject of pregnancies resulting from marital rape, the Court ruled that women can seek an abortion within the gestational period of 20 to 24 weeks under the ambit of "survivors of sexual assault or rape".

Studies on abortion: A bibliography

Recent news on abortion