India’s landmark abortion ruling is a step forward for women’s rights
- The country’s highest court has ruled that single women must have the same abortion rights as their married counterparts
- The expansion of access to abortion is not only an important step in a society where premarital sex and abortion still carry deep stigma, but also stands in contrast to developments in the US
In late September, India’s Supreme Court ruled that women, whether married or unmarried, have equal right to abortion for pregnancies of up to 24 weeks. Before the ruling, under the Medical Termination of Pregnancy Act, single women could cite “failure of contraception” to abort pregnancies of up to 20 weeks, while married women were allowed to do so up to 24 weeks.
The country’s apex court also made clear that the term “woman” applies to transgender people, that medical practitioners do not have to report minors who approach them for an abortion, and that marital rape, which is not criminalised under the country’s penal code, must be recognised under the MTP Act.
The expansion of abortion access in India stands in contrast to the US Supreme Court’s overturning of the landmark 1973 Roe vs Wade ruling which had recognised a woman’s constitutional right to an abortion and legalised it nationwide. Several American states are now rolling back abortion rights.
Many in India remember the 2012 death of an Indian woman in Ireland, who despite her deteriorating condition was refused an abortion, only to deliver a stillborn baby and die of infection. After the furore, the Irish government changed its law to legalise abortion in cases of medical emergencies as well as the risk of suicide.
Across Asia, laws on abortion vary. According to the Centre for Reproductive Rights, abortion remains illegal in Iraq, Laos and the Philippines; in the latter, women can be jailed for two to six years for having one. Afghanistan, Bangladesh, Sri Lanka, Myanmar, Brunei and Iran only allow abortion to save the woman’s life.
China, in 1953, was one of the first developing countries to legalise abortion and make it widely available. However, under the one-child policy introduced in the 1970s, which was only rolled back in 2016, millions of Chinese women were subject to forced abortions. Today, China is trying to increase its birth rate; in 2016, it announced its intention to reduce “non-medical abortions”.
Similarly, India’s abortion laws appear liberal, but are far from ideal. The MTP Act was introduced in 1971 amid the country’s draconian population control policies. Even after the law was amended last year, women seeking an abortion need the sign-off of at least one doctor.
In both India and China, the preference for male children resulted in prenatal scans and abortions being used for sex selection, severely skewing the countries’ sex ratios. Although both countries banned the practice of identifying the sex of the fetus, such services only went underground.
In both countries, premarital childbirth is not socially accepted. In China, most abortions are performed on young and unmarried women who have never given birth before.
In India, single pregnant women face judgment from their families as well as the medical community, complicating abortion access, and leading them to resort to undergoing abortions in poorly equipped clinics. A study by the Guttmacher Institute found that 24 per cent of 500 unmarried Indian teenage girls who sought an abortion said their parents had punished them by hitting or starving them.
Not only is there a strong social taboo against premarital sex in India, sexual activity – consensual or not – between those below 18 years of age is criminalised. Unsafe abortion is the third leading cause of maternal mortality with close to eight women dying as a result of unsafe abortions every day, according to the UN State of the World Population Report 2022.
The Supreme Court acknowledged these complexities when it ruled that medical practitioners need not report minors seeking an abortion and noted the taboos surrounding premarital sex are barriers to young adults accessing contraceptives.
The ruling is thus a big step forward for women, not least because it points out the flaws in the existing law, noting that reproductive autonomy “requires that every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorisation from a third party”.
Kavitha Yarlagadda is an independent writer based in Hyderabad, India