With its decision to end constitutional protections for abortion in the recent case of Dobbs vs Jackson Women’s Health Organization, the United States Supreme Court made that country a global outlier on abortion law and policy. At a moment when many governments around the world are liberalising their regulation of abortion care, the US has opened the door to banning legal abortion outright.
India, where the Medical Termination of Pregnancy Act was recently amended to allow abortion procedures until 24 weeks of gestation, and even later in case of “substantial fetal abnormalities”, seems to occupy the opposite end of the spectrum of abortion regulation. However, the contrast between a supposedly liberal law in India, and a more restrictive one in the United States, is not quite so simple.
Even 50 years after legalisation, there remain severe restrictions on access to safe and legal abortion care in India. As a result, deaths from unsafe abortions still constitute 10% of maternal mortality.
This stems from the fact that Indian abortion law does not recognise abortion care as a fundamental right of women and those who may become pregnant. Nor does it include abortion as a critical part of women’s rights to reproductive, bodily, and sexual autonomy. These limitations drastically narrow the scope and meaning of abortion rights.
India’s abortion landscape today is located in long histories both of criminalising abortion care, and of controlling population growth, which have shaped reproductive policies since the colonial era. Recognising this historical context can help understand the current contradictions between a seemingly liberal position in law and restrictions on abortion care in practice.
In the early nineteenth century, under East India Company rule, legal authorities were concerned with abortion only when the procedure led to the death of a pregnant woman. This approach was in line with British common law, which took a relatively lenient approach to abortions before the pregnant woman could feel fetal movement, which was called “quickening”.
The Indian Penal Code, which took effect in 1862, had a stricter position. It criminalised all abortions and instituted more severe penalties. This shift was in line with changes in the British common law in the later 19th century, which began to give greater priority to the life of the fetus and disregarded “quickening” as an important marker.
Although abortion was a crime under the colonial law, officials rarely prosecuted cases when a pregnant woman survived the procedure. Still, the criminalisation of abortion undoubtedly limited women’s ability to receive safe abortion care and it enshrined the idea that abortion was not a legitimate practice.
The colonial laws of abortion remained unchanged for over a century. Finally, in 1971, the Medical Termination of Pregnancy Act legalised abortion up to 20 weeks of gestation if it was done with the approval of a Registered Medical Practitioner who was specifically licensed for the procedure. The law outlined reasons why a legal abortion could be performed and empowered the Registered Medical Pracititoner to determine whether the procedure was warranted.
The Medical Termination of Pregnancy legislation did not make these changes on the basis of women’s rights. Nor did it make a person’s decision not to have a child the basis for a legal abortion. Instead, the government argued that legal reform was necessary on “humanitarian, health and eugenic grounds”.
In Lok Sabha debates about the bill, legislators noted that pregnancies resulting from rape caused great harm to women and called for legal abortion as a humanitarian remedy for sexual violence. They expressed concern that women were risking their health, and sometimes dying, from unsafe abortions.
The act’s eugenic reasons for legalising abortion centered on disability. Legislators claimed that the new law would allow abortions when “foetal abnormality” was detected, and implied this would improve the health of children, families, and the national population itself.
More than introducing abortion as a fundamental reproductive right, the Medical Termination of Pregnancy Act was crafted and implemented in the context of a draconian population control campaign in India. From the 1960s, as global and Indian fears of a “population bomb” took hold, the Indian government aimed to regulate women’s reproduction as a way to curb population increase.
The desperate drive for population control was the impetus for employing new contraceptive technologies, such as the intrauterine device or surgical sterilisation, on a mass scale. It also shaped the delivery of reproductive healthcare by prioritising family planning goals over maternal and child health. Systems of targets and incentives disregarded women’s own reproductive choices and could be coercive in their effects.
Ultimately, population control programmes made women’s bodies instrumental to other goals, as the government insisted that reducing India’s total fertility rate was essential for economic development.
The Medical Termination of Pregnancy Act of 1971 was passed during this period of overwhelming concern about population. Although the government did not list population control among its explicit “objects and reasons” for the new law, it made contraceptive failure a legally valid reason for abortion.
Lok Sabha members seized upon this provision to argue that couples seeking to limit their family size needed abortion in case other family planning measures were not successful. They suggested that a country aiming to control its population size could not simultaneously prohibit abortion.
The act’s legalisation of abortion operated within a population control logic that disregarded women’s health and rights in a drive to regulate their reproduction at all costs. The law gave doctors, rather than pregnant persons themselves, the ability to decide when and whether a person was eligible for legal abortion. As a recent fact-finding report shows, these restrictions have severely limited abortion access and have pushed people to seek unsafe procedures.
The Medical Termination of Pregnancy Act did not even fully de-criminalise abortion. It only made abortion procedures legal if they were performed by an appropriate provider and for specific reasons. All other abortions remained criminal acts.
In 2021, an amendment to the act extended the time a person may obtain an abortion to 24 weeks of gestation. In the case of “substantial fetal abnormalities” abortions may occur even later in pregnancy.
However, the broader framework of abortion law remains unchanged. Legal abortion is still an exception to the overall criminalisation of the procedure. Doctors and medical boards still wield decision-making power over whether a pregnant person may obtain an abortion. Eugenic assumptions continue to devalue disabled lives and shape who receives abortion care. Ultimately, abortion is not made part of a pregnant person’s reproductive rights or bodily autonomy.
In comparison to the United States, where many state legislatures are rushing to ban abortion entirely, even this narrow path to legal abortion in India may seem more progressive. But limiting the possibilities either to American-style restrictions or Indian-style legalisation offers a false choice.
The catastrophic effects of the Dobbs decision in the US suggest the fragility of abortion rights and the need to secure them on a firmer footing. Recognising the fundamental role of abortion in our broader rights to reproductive healthcare and autonomy is now even more urgent.
Mytheli Sreenivas is a historian of modern India and her research focuses on Indian reproductive politics. Her most recent books is Reproductive Politics and the Making of Modern India.
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