Author By Tanushka Diwakar, M.K.E.S College of Law (Mumbai University)
Abstract:
India’s changing jurisprudence of reproductive rights is a manifestation of the longstanding struggle between tradition, state power, and freedom. Despite parliamentary successes such as the Medical Termination of Pregnancy (MTP) Act and its amendment in 2021, the Indian law continues to treat abortion as an exception rather than a natural right. This article discusses the manner in which reproductive rights operate in India presently and how medical regulations, social stigma, and legal loopholes frequently keep women, and especially those who are from marginalized groups, from taking control of their own bodies. This article argues that, based on our Constitution, global human rights values, and landmark court decisions, we need to change how we think – moving from limited access to full and unconditional reproductive justice for all. It demands legal, institutional, and cultural change upholding a woman’s right over her body as an unbreachable human right.
Introduction
Abortion was legalized in India by virtue of the Medical Termination of Pregnancy (MTP) Act of 1971, but nearly half a century since then, reproductive rights remain a matter of legal ambiguity, moral conflict, and institutional apathy. Reproductive autonomy for Indian women is not a guaranteed right but a bargained privilege. Patriarchal norms, cultural shame, and over-medicalization of abortion have prevented safe and legal abortion services from being accessed. An attempt in this article has been made to untangle such complexities by delving into Indian law, constitutional guarantees, judicial pronouncements, and ground realities of reproductive health care in India. It also takes into account the political climate and the administrative implementation which have led to systemic failures of delivering reproductive justice.
Understanding Reproductive Rights: A Human Rights Foundation
Reproductive rights encompass the right to choose whether or not to be pregnant, and when, access to abortion and contraception, and protection against forced sterilization. These are grounded in several international instruments such as:
ICPD (International Conference on Population and Development Programme) Action (1994): Established reproductive rights as an integral element of gender equality and development.
CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women): Requires state parties to provide access to family planning, health, and information.
UDHR (Universal Declaration of Human Rights) and ICCPR (International Covenant on Civil and Political Rights): Set the foundation for physical autonomy and right to health.
India has signed the conventions, but international standard and national practice still lag behind. Lack of enforceability of international conventions in national courts of law unless ratified into national acts leaves a gap between action on the world stage and activity on the local stage.
The Legal Framework: From the MTP Act to the 2021 Amendment
The Medical Termination of Pregnancy (MTP) Act, 1971 was enacted to prohibit unsafe abortions. It made abortion till 20 weeks legal in provided situations:
Risk to life or physical/mental health
Fetal abnormalities
Pregnancy resulting from rape or incorrect use of contraception
The 2021 Amendment raised the timeframe to 24 weeks for marginalized sections (rape victims, minors, etc.) and added “any woman or her partner,” thereby officially recognizing unmarried women.
Even after these reforms, the law is paternalistic in nature. The woman’s right to abortion remains conditional, and every decision is in the doctor’s hands. The woman is not the ultimate authority, that authority still rests with the doctor.—a model where autonomy is given a secondary to the doctor’s medical discretion. Abortion after 24 weeks is also required to be approved by a Medical Board, a costly and inaccessible one in rural and underprivileged areas.
Judicial Interpretation: Enlarging Article 21
Indian courts have repeatedly stretched the ambit of Article 21, which provides for the protection of the right to life and personal liberty, to cover reproductive rights.
Suchita Srivastava v. Chandigarh Administration (2009): Established reproductive autonomy of a woman as a part of her right to privacy and personal liberty.
Justice K.S. Puttaswamy v. Union of India (2017): Held privacy to be a fundamental right affirming bodily autonomy.
X v. Principal Secretary, Health and Family Welfare (2022): Approved abortion for unmarried women with focus on equality and non-discrimination.
These cases cumulatively reflect judicial confirmations of a rights perspective. Legislative and administrative channels are behind. Even when there are positive court decisions, women are often unable to exercise their rights due to procedural lags, threats of retaliation, or uncooperative health professionals.
Intersectionality and Reproductive Injustice
Violations of reproductive rights most commonly target:
Dalit and Adivasi women are denied maternity care and subjected to forced sterilization.
Disabled women are frequently excluded from sex education and denied bodily autonomy.
LGBTQ+ individuals are excluded from reproductive laws and repeatedly left out of policy-making processes.
Poor and rural women face the harshest consequences of inadequate infrastructure and a patriarchal medical system.
These groups often face “multiple layers” of discrimination, compounding their vulnerability exponentially. The failure of the state to address these vulnerabilities is an expression of systemic indifference. The intersection of caste, class, gender identity, and place has a profound effect on whether, and in what manner, reproductive rights are granted or denied.
Medical Gatekeeping: Autonomy vs. Authorization
One of the most debated parts of India’s abortion law is that it requires approval from registered doctors. In reality, many doctors refuse to provide abortions—either because of their personal beliefs or fear of getting into legal trouble. Only 22% of Indian abortions were performed in public facilities, according to the Guttmacher Institute; the remainder were self-induced or performed outside of the formal system.
Such gatekeeping is against the doctrine of autonomy. Rather than being spoken to as right-holders, women are treated as patients who require supervision. Refusal by doctors to perform abortions on moral or religious grounds, and their ability to defer or deny treatment, have a propensity to drive women to dangerous procedures.
International Best Practices: Comparative Lessons
India can learn a thing or two from other countries:
Canada: Legal anytime and viewed as a medical choice between physician and patient.
South Africa: Permits on-demand abortion to 12 weeks and on certain grounds to 20 weeks.
Ireland: Amended its de facto ban on abortion through public referendum in 2018.
Argentina: Decriminalized abortion in 2020 through mass feminist action and public pressure.
These nations uphold their abortion law in its core regarding autonomy, rather than consent. They also render reproductive health care public in nature, rather than as an exception to the rule. India needs to head in this direction if it is to prioritize the health and agency of its women.
Reproductive Rights Beyond Abortion
A complete vision of reproductive justice encompasses:
Access to contraception
Menstrual pads and other hygiene items
Sexual health education for students
Maternal care
Protection from coerced abortions and sterilization
India’s policy landscape is decentralized, with schemes such as Janani Suraksha Yojana, Mission Parivar Vikas, and Ujjwala Yojana, yet uneven execution, especially in areas of conflict and rural regions. Most people are still unaware of what they can access. To this effect, the lack of schooling for integrated sex education continues to fuel ignorance and stigma surrounding reproductive health.
Policy Failings and Resistance from the Government
Initiatives to legalise forced sterilization or enhance access to abortion tend to get challenged. For example:
Between 1975–77, more than 8 million sterilizations were carried out under duress under Emergency.
13 women were killed due to failed sterilization operations in Chhattisgarh in 2014, a reflection of poor quality.
The topic of reproductive rights is rarely discussed in Parliament and is usually limited to conversations about population control.
This would involve a structural policy shift of emphasis from population management to reproductive justice as well. Further, the inability to enact legislation on these issues indicates unwillingness to address deeply rooted social and gender prejudices that impede advancement.
Role of Civil Society and Media
The struggle for reproductive rights in India has frequently emanated not from the state, but from civil society—feminist movements, legal aid clinics, health activists, and social movements. Collective groups such as the Centre for Reproductive Rights, Pratigya Campaign, and CEHAT have been instrumental in policy advocacy, legal reform, and data gathering.
Media portrayal also affects the public. Abortion rights are rarely explored in depth by mainstream media, which usually focuses on sensational headlines instead of showing empathy. There’s an urgent need to shift the cultural conversations towards one of understanding and empowerment.
More Than Just Clerical: Breaking Down Gender Stereotypes in Indian Legal Work
Call for Legislative Reform: What Needs to Change?
Allowing individuals to access abortion without restriction up to 12 weeks, without needing to justify or explain why.
Not requiring doctors’ permission, particularly after medical emergencies—individuals must be believed capable of controlling their own bodies.
Educating students about sexuality and reproductive health in schools as part of their education and right to grow up in an informed manner.
Educate physicians and medical professionals to be more empathetic and supportive, so no one is judged or denied service when they need it.
Ensuring reproductive laws cover all, LGBTQ+ persons and persons with disabilities, so no one gets excluded from fundamental rights.
Solely sanctioning forced sterilization and other coercive measures, as they are against human dignity and freedom.
Establish independent agencies to monitor reproductive healthcare and ensure that it is safe, equitable, and accessible to everyone.
Live up to the commitments of international human rights agreements by converting them into actual action and legislation that safeguards individuals’ health and liberty.
Hold authorities accountable if an individual’s reproductive rights are violated and offer legal assistance to those who are unable to pay.
Enact a robust Reproductive Rights Law that unambiguously safeguards the right to choose, access to healthcare, and dignity of life.
Conclusion
Reproductive freedom is not a luxury but a right. Women cannot be equal citizens, full, or dignified, if they are not independent to control their own bodies. Indian courts have been making bold advances towards the expansion of the idea of individual freedom, yet legislative resistance and societal conservatism erode women’s rights.
If India is determined to empower its women, it has to remove the walls—legal, medical, and cultural, that prevent their control over their reproductive lives. The law needs to inscribe what the Constitution guarantees: the right to live with dignity, the right to privacy, and the right over one’s own body.
It is time to change. Not tomorrow, but right now. Indian women are not merely passive recipients of rights but active claimants. They should have a legal and healthcare system that respects their agency, honors their choice, and protects their dignity.
The fate of India as a modern democracy hangs in the balance with its potential for reproductive justice for all. May this be not merely a legal reform but a social awakening.
References:
Wikipedia – “Abortion in India”
Guttmacher Institute – “Abortion and Unintended Pregnancy in India”
LiveLaw – Legal news updates on MTP Act and landmark Supreme Court cases
IndianKanoon – Supreme Court Case Texts
2021 MTP Amendment: Extended to 24 Weeks & “Any Woman or Partner”
About the Author
