Abortion in India: Report Reveals Widespread Legal Barriers and Recommends Ways to Improve Access

A recent fact-finding report by the Center for Reproductive Rights and its partners reveals widespread legal barriers to safe abortion access in India, leading to at least 800,000 unsafe abortions per year. Today, unsafe abortions account for 8-10% of maternal deaths in India.

The report, titled Legal Barriers to Accessing Safe Abortions in India: A Fact-Finding Study, also recommends ways to improve access to safe abortion care by utilizing legal, public health, and public education tools.

The report was launched by the Center along with the National Law School of India University, Bangalore and National Law University of Delhi at a virtual event in August. The event featured a panel of former High Court justice and reproductive rights experts and was attended by more than 50 participants, including national allies and members of the South Asia Reproductive Justice and Accountability Initiative (SARJAI). 

Undertaken between 2019-2020 in four Indian states with diverse population and socioeconomic parameters, the study examined laws and women’s experiences in accessing abortion care. Based on the fact-finding, the report makes recommendations on how to improve access to safe abortion care. In particular, the report assesses ways that the Indian Penal Code, the 1971 Medical Termination of Pregnancy (MTP) Act, and a range of other laws impact pregnant women’s ability to access safe abortion. The study highlights the legal barriers to safe abortion access, including the way the MTP Act operates, which was meant as an exemption to the Indian Penal Code’s criminalization of all abortion and acknowledges the “risk to the life of the pregnant woman or of grave injury to her physical or mental health.”

The Center’s Prabina Bajracharya, Capacity-Building Manager, Asia Program, who spoke at the event, said, “At the Center, we believe that grounded on human rights principles, States should create rights-based enabling environment where pregnant persons are not at risk of criminal penalties and where States ensure available, accessible, acceptable, and quality abortion services for all without discrimination. We hope that this report will contribute significantly to the advocacy for more rights-oriented legal framework in India and also be a resource to advocates in other countries in Asia and globally.”

Report Finds Cultural Biases, Punitive Laws, and More

According to women who sought abortion services, abortion providers, government officials, lawyers and civil society representatives, several factors place barriers on abortion access.

• Among service providers, cultural biases — from general abortion stigma to patriarchal ideas about women’s role in society — have powerful influence in service providers’ decisions to deny abortion services.

• Punitive laws make it easier for many healthcare providers to refuse to perform abortion services, because denying the service is seen as the safer option to avoid legal scrutiny. This is true even in cases where the MTP Act provides an exemption to the Indian Penal Code.

• Decriminalization of abortion is a necessary first step in order to bring India in line with global abortion standards. However, decriminalization must be followed by an overarching positive legal framework for reproductive health to protect the rights of women and girls against the patriarchal attitudes that remain.

Report Highlights Recommendations to Expand and Improve Safe Abortion Access

The report also set forth several recommendations for increased access to safe abortion in India. The recommendations are to:

• Fully decriminalize abortion and reframe it within a rights-based healthcare framework, which would seek to ensure all women and girls — regardless of age, ethnicity, or socioeconomic status — have equal access to safe and timely abortions.

• Ensure that safe abortions are made universally possible through the public health system by performing an audit of current healthcare infrastructure and making improvements based on the latest science and global standards.

• Undertake a comprehensive audit of the current legal framework around abortion and reproductive rights, and reform laws to reflect the latest science and global standards.

• Remove mandatory reporting requirement under the law against child sexual offenses, which has the effect of criminalizing underage sexual activity and has a chilling effect on adolescents’ access to safe abortion services.

• Evaluate textbooks and public education tools to remove harmful biases and stereotypes that contribute to negative attitudes around abortion. Within the rights-based legal framework, ensure public health officials, drug controllers, and other authorities are required to be formally educated on abortion access as a human right.

Virtual Event Features Panel with Leading Experts

At the virtual report launch in August, a panel discussion between experts highlighted how India’s punitive laws restrict public health access for women and girls by creating morality-laden attitudes in health providers. These providers often cite ambiguous “health grounds” in their refusals to perform abortion services, or require patients to produce extralegal authorizations and documentation that create more barriers between women and safe abortion access. The panelists reiterated a key recommendation of the report for both decriminalizing abortion and putting in place an enabling rights-oriented framework.

Dr. Aparna Chandra, co-lead author, highlighting the key findings of the study, said, “Our study recommends that decriminalization is not sufficient, and we need an affirmative rights-oriented law that seeks to account for social prejudices and stigma, and empowers pregnant persons to seek abortion.”

Speakers included:

• Prabina Bajracharya, Capacity-Building Manager, Asia Program, Center for Reproductive Rights

• Dr. Sudhir Krishnaswamy, Vice-Chancellor, National Law School of India University

• Professor Srikrishna Deva Rao, Vice-Chancellor, National Law University of Delhi
• Dr. Aparna Chandra, Associate Professor of Law, National Law School of India University
• Professor Mrinal Satish, Professor of Law, National Law School of India University

Panelists included:

• Justice Prabha Sridevan, known for a landmark ruling that paved the way for India’s jurisprudence on affordable drugs.

• Ms. Vrinda Grover, feminist lawyer who has argued against human rights violations.

• Dr. Suchitra Dalvie, Co-Founder and Coordinator of the Asia Safe Abortion Partnership.

Speaking at the launch event, Brototi Dutta, the Center’s Advocacy Adviser based in India, said, “We hope to build on the suggestions and recommendations that have come today, including for greater responsiveness of the public health system and seeking State accountability particularly in the backdrop of the pandemic.”