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TAMILNADU NATIONAL LAW UNIVERSITY

(A State university established by Act No.9 of 2012)

NavalurKuttapattu, Srirangam (TK), Tiruchirappalli – 620 009. Tamil Nadu.

REPRODUCTIVE LAWS AND WOMEN DISCRIMINATION IN INDIA

SUBJECT: CONSTITUTIONAL LAW – I

Submitted by
YOGESHWARAN V
BA0180050
Course: BA LLB (HONS) - II year

Submitted to
Ms. Jasmine,
Assistant Professor of Law,
Tamil Nadu National Law School,

Trichy - 620027
Marks Awarded-
Project:
Presentation and Viva-Voce:
Total:
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DECLARATION

YOGESHWARAN.V Pursuing B.A., LL.B (HONS.) 2nd YEAR, do hereby declare that the
project entitled “REPRODUCTIVE LAWS AND WOMEN DISCRIMINATION IN INDIA”
submitted to Tamil Nadu National Law University (TNNLU),Trichy , in partial fulfillment of
requirement of award of degree in undergraduate in law is a record of original work done by us
under the guidance of Ms.Jasmine, Assistant Professor of Law, TNNLU, and has not formed
basis for award of any degree or diploma or fellowship or any other title to any other candidate
of any university.
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TABLE OF CONTENTS:

INTRODUCTION…………………………………………………………04

MTP ACT FROM 1971 TO 2019…………………………………………..04

WOMEN’S RIGHT AND RESTRICTIVE ABORTION…………………06

INTERNATIONAL LAWS AND IDEAS………………………………...08

DEVELOPMENT REQUIRED TO CHANGE THE SITUATION……….10

CONCLUSION……………………………………………………………...11

BIBLIOGRAPHY…………………………………………………………...11
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INTRODUCTION:

India being the largest democracy with 40 plus years liberal legislation still has a restrictive
abortion laws whereas few States such as Canada without any restriction on abortion functions
much better than India. The right to abort a child is a very important issue which is not being
widely discussed or spoken out loud often as like other social issues. India has seen a standard
improvement in reproductive rights of women slowly by decriminalizing abortion in 1971by
passing of the medical termination of pregnancy act and further more the same act has been
amended in regular interval trying to improvise on international standards. But still is restrictive
abortion laws a necessity in India, in the current period of time? Does our constitution do justice
by restricting women from getting a medical aid which is exclusive for them? Will striking out
the act affect us? All of these questions are unanswered so in this project I will try and find out
whether the restrictive abortion laws discriminate women on the basis of fundamental rights.

MTP ACT from 1971 to 2019:

The Medical Termination of Pregnancy Act of 1971 was passed by the Parliament after shah
commission recommending that abortion and reproductive laws in India needs to be regulated.

The Act decriminalized Abortion and it set up few restrictions in order to prevent sex based
abortions and risky abortions which would cause harm to the mother. The MTP Act has gone
through a various series of amendments in the course of time. In 1975 the MTP rules and
regulations were framed.

In 2002 MTP Act was amended for the first time. The major issue resolved by this act is that the
private health centers were allowed to terminate pregnancy but with a lots of procedures and
rules. Also unapproved abortions were heavily penalized by adding new penal sanctions. Later in
2014 the national commission for women recommended to the Union Ministry of Health and
Family welfare that previously existing time limit for abortion which is 20 weeks should be
extended to 24 weeks and also made a point that marital status of a woman should not be
considered in giving them medical termination. In turn the Union ministry of health and family
welfare proposed a bill in the parliament to amend the MTP Act. The proposed bill had requested
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to increase the abortion provider’s base by allowing registered medical practitioners to conduct
an abortion. It dispensed with the pre-state of the assessment expected of an enrolled medical
practitioner, whether to abort or not, in the event of pregnancies not surpassing 12 weeks. In the
event of pregnancies surpassing 12 weeks however not 24 weeks, it decreased the number of
opinions required by a medical practitioner from two to one, stretching out more rights to ladies
over their pregnancies. In the contraceptive failure clause of the act the term ‘married women’
was replaced by ‘all women’. This proposed bill was objected by the IMA questioning the
extension of abortion service providers. And then in 2017 a new amendment bill was passed by
the Rajya Sabha in which the time period for abortion set at 20 weeks was requested to be
changed to 24 weeks. In 2018 the same Amendment bill was introduced by the lok sabha with an
addition of time period for abortion for rape victims to 27 weeks, in the same year Shashi
Tharoor introduced a bill which quashed the medical practioner’s opinion before abortion. In
2019 the petition filed by swati agarwal and others also wanted the same as 2017 amendment
stating that the medical developments and latest technologies has made it easy to terminate
pregnancy even after 20 weeks. The petition also requested changes in section 3(2)(a) of the
MTP act stating that they are violating article 14 and 21 of the constitution.

The MTP Act as of now without being amended even after so many proposals and issues is the
current abortion law in India. The MTP Act thus far in effect is a restrictive law for sure but our
research question being whether it discriminates women stands true considering that a woman
has no free will over her abortion after a period of 20weeks no matter what. The act has done its
job of preventing sex discriminated abortions and unsafe abortion practices but in the current
advanced world what I feel is that the MTP Act is really outdated and definitely it needs to
amended if not quashed.
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WOMEN RIGHTS AND RESTRICTIVE ABORTION:

Having gone through how Indian reproductive law’s outline and the chaos going on in the due
process of its amendment lets now have a look into how Women’s rights are infringed by
restrictive abortion law.

“The state shall not discriminate against any citizen of India on the ground of sex” [Article
15(1)] states the Indian constitution. But the restrictive abortion laws in India does discriminate
women on the basis of sex.

Laws that confine abortion have the impact and reason for keeping a lady from practicing any of
her human rights or essential opportunities on a premise of fairness with men. Confining
abortion has the impact of denying ladies access to a methodology that might be important for
their equivalent happiness regarding the privilege to wellbeing. Just ladies should live with the
physical outcomes of undesirable pregnancy. A few ladies endure maternity-related wounds, for
example, drain or impeded work. Ladies are thus presented to wellbeing dangers not experienced
by men. Laws that deny access to abortion, whatever their expressed destinations; have the
prejudicial motivation behind both slandering and undermining ladies' ability to settle on capable
choices about their bodies and their lives. In fact, it isn't amazing that reluctance to permit ladies
to settle on choices about their very own bodies frequently harmonizes with the propensity to
deny ladies basic leadership jobs in the territories of political, financial, social, and social issues.
The CEDAW Committee has reliably communicated worry about prohibitive laws that condemn
abortion. Moreover, Also condemning abortion, even in instances of assault, is incongruent with
the States' commitment to guarantee the equivalent right of people to the common and political
rights set out in the ICCPR. Furthermore, it has demonstrated that the issue of maternal mortality
because of risky abortion is proof of victimization of women. MTP Act gives provisions for a
woman to abort only if going through the pregnancy would cause harm to the life of the mother
that too only upto an time period of 20 weeks of pregnancy. So the women are discriminated by
non providing of medical care that is exclusively for them. The fundamental right of a woman
gets infringed here

Compelling women to convey pregnancies to term causes physical and mental misery.
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Because of prohibitive abortion laws and approaches, numerous women encountering

inconveniences of pregnancy and requiring a helpful abortion are compelled to experience the ill
effects of agonizing, terrifying and dangerous conditions.

Human rights bodies have perceived that prohibitive abortion laws can prompt infringement of
the privilege to be free from merciless, brutal and debasing treatment. The Committee against
Torture has perceived the effect of prohibitive laws, which power women to convey undesirable
pregnancies to term or to experience unlawful abortions that regularly place their wellbeing and
lives in threat, and noticed that the disappointment of States to find a way to avoid these
demonstrations comprises coldblooded and brutal treatment. In particular, it has demonstrated
that an all out restriction on abortion, which powers a lady to convey a pregnancy coming about
because of a wrongdoing of sexual orientation based viciousness, for example, assault, "involves
steady introduction to the infringement submitted against her and causes genuine awful pressure
and a danger of enduring mental issues, for example, tension and misery." The Human Rights
Committee has expressed that condemning abortion is contrary with the privilege to be free from
unfeeling, cruel or corrupting treatment.

Women’s Right to the Enjoyment of the Benefits of Scientific Progress:

“The right to the benefits of scientific progress is particularly salient in the context of abortion
because numerous safe, effective and low-cost health interventions, such as medical abortions,
can substantially improve women’s access to safe abortion services, thereby reducing the
incidence of unsafe abortion, and decreasing the attendant maternal morbidity and mortality
rates. Medical abortion is an alternative to surgical abortion that generally uses two medicines to
end a pregnancy. The most common regimen calls for an oral dose of Mifepristone, followed by
a dose of Misoprostol up to 48 hours later. This regimen, which can be initiated as soon as
pregnancy is confirmed, is approximately 95% effective.43 In 2005, the WHO added
Mifepristone and Misoprostol to its Model List of Essential Medicines, a list intended to guide
governments in their prioritization of necessary drugs for budgetary allocations and procurement
in their national health systems. “Permitting medical abortion can significantly improve women’s
overall access to safe abortion because it can be provided in a broad range of settings, such as in
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practitioner’s offices, andcan be offered by non-physicians, which helps to expand the pool of
providers available to perform safe abortions.45 Additionally, reducing reliance on physicians
can reduce costs and help make abortion more available and accessible to women. By approving
medical abortion protocols, training providers and removing barriers to the regimen,
governments can ensure that women have access to medical abortion in a safe setting, which
allows them to enjoy their right to the benefits of scientific progress.”

INTERNATIONAL LAWS AND IDEAS:

“Abortion legislation worldwide is regularly the focus of surveys and other publications. The
United Nations publishes periodic World Abortion Policies reports, the most recent of which
came out in 2013 (United Nations, 2013), and in 2014 produced a report on reproductive health
laws (United Nations, 2014). A very exhaustive database on abortion policies, the Global
Abortion Policies database, This database has also recently been set up by the WHO (the Special
Programme of Research, Development and Research Training in Human Reproduction, HRP)
and the United Nations (WHO, 2017). Some non-governmental organizations also contribute to
this research effort: these include, among others, the Center for Reproductive Rights, which
regularly produces maps on the policy situation around the world (2014, 2017), and the
Guttmacher Institute, which produces overviews of the situation both at the global level and in
certain countries or regions The Guttmacher Institute periodically publishes a report.”

“Knowledge of the legal framework governing abortion is crucial, as it is an important

determinant of service provision and of women’s rights and their health. Around the world,
legislation has often oscillated between periods of easing and tightening of restrictions, for
moral, religious, health, ethical, or legal reasons. Situations range from a total ban on abortion to
unrestricted access at the woman’s request. Between these two extremes, access to abortion is
authorized under certain conditions: protection of women’s lives or their physical and/or mental
health, There has been discussion in Latin America about adopting fetal impairment, Few
countries define what they consider to be a fetal rape or incest, economic or social reasons, In a
few countries, the law specifies that account or certain other specific causes in some countries.”
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In international basis developed countries have more liberal reproductive laws than the lesser
developed countries. Below given is the table as in UN on the 2013 census report which shows
the percentage of abortions on each category and as it is clearly seen that developed countries
allow abortions on request whereas underdeveloped or developing countries restrict abortion
laws which clearly marks the point that restrictive abortion laws are not the way to development
and rather it is mere a blind belief. Table 2.0( taken from Global Abortion Policies Database)
shows the legal status of abortions spread across the world it shows clearly how easily the
restrictive abortion laws stands proportional to the State’s development. State’s which are more
developed and literate does not treat Abortion as a taboo and give the full rights onto the hands
of the respective woman whereas certain State’s such as India believe in not giving the full rights
to the hands of woman and restrict their fundamental rights.

TABLE 1.0
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TABLE 2.0

DEVELOPMENTS REQUIRED TO CHANGE THE SITUATION:

The current situation in India considering all the information gathered across all the sources it is
clearly foreseeable that the restrictive abortion law does needs to be amended on the following
basis

1. The restrictive abortion law discriminates women and in order to overcome it it would be
more preferable to quash the MTP Act and keep an unrestricted abortion available to all
women
2. The developments in science and technologies has clearly made abortion of fetus even in
later stage of pregnancy possible and putting a time limit as 20 weeks is no way relatable
and more than anything else that is the first point that requires to be changed
3. MTP Act is more specific about the idea that the authorized medical practioner will only
be allowed to conduct a abortion and anyone else conducting will be penalized but India
which lacks the people to doctor ratio but has more AYUSH methodological medical
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practioners should allow them to conduct Abortions in order to make the facility
available to all classes of people especially the rural areas
4. Restrictive abortion laws also puts women into a lot of mental and physical stress and
also it interferes in their privacy as well so it should be quashed.

CONCLUSION:

In this project I have attempted to put in question the restrictive abortion laws in India which
discriminate Women and in the process it was found that it does discriminate women under
articles 15(1) and 39(a) of the Indian Constitution on the basis of comparison with other States
and with reference to international laws framed by UN as well with reference to various works
by different authors on the subject area of study. Restrictive abortion law interferes with the
personal liberty of an individual women and it is outdated practice. It is arguable that the child
which is aborted is a life and we cannot deny its fundamental right but that is totally out of point
view since there is no proper explanation or a status given to the fetus i.e. there is no explanation
provided in the statute whether a fetus should be given the status of a child so keeping that aside
it is clearly understood that the law interferes with the personal choice of the women and
discriminates them from men by not allowing them to get access to the medical facility available
to them exclusively. Also having seen other jurisdictions laws on abortion it was inferred that
well developed countries have very less or no restriction on reproductive laws and therefore as a
process of development to it would be suggestible to quash the law.

BIBLIOGRAPHY:

Cosentino, C. “Safe and Legal Abortion: An Emerging Human Right? The Long-Lasting Dispute
with State Sovereignty in ECHR Jurisprudence.” Human Rights Law Review, vol. 15, no. 4,
2015, pp. 801–801., doi:10.1093/hrlr/ngv035.

Hirve, Siddhivinayak S. “Abortion Law, Policy and Services in India: A Critical Review.”
Reproductive Health Matters, vol. 12, no. sup24, 2004, pp. 114–121., doi:10.1016/s0968-
8080(04)24017-4.
“Mexico’s Choice: Abortion Laws and Their Effects Throughout Latin America.” Human Rights
Documents Online, doi:10.1163/2210-7975_hrd-1224-2016006.
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“Restrictive Abortion Laws Force Women towards Unsafe, ‘Backstreet’ Operators.” Nursing
Standard, vol. 26, no. 25, 2012, pp. 14–14., doi:10.7748/ns.26.25.14.s23.
Shukla, V. N., and Mahendra Pal Singh. V.N. Shuklas Constitution of India. Eastern Book
Company, 2017.

B., Sreya. “How Right Is the Right to Abortion.” SSRN Electronic Journal, 2013,
doi:10.2139/ssrn.2290869.

BA0180050

YOGESHWARAN.V