In September 2022, the Supreme Court in X v. Principal Secretary, Health & Family Welfare Department^[i] held that unmarried women are entitled to terminate pregnancies up to 24 weeks under the Medical Termination of Pregnancy Act, 1971^[ii] (“MTP Act”), recognising that marital status cannot dictate access to abortion services. The judgment was hailed as a watershed moment for reproductive rights in India, one that placed bodily autonomy and decisional privacy at the centre of constitutional protection.

Barely a year later, in X v. Union of India^[iii], the Court refused permission to a woman diagnosed with postpartum psychosis to terminate her pregnancy at approximately 26 weeks, citing the State’s obligation to protect the “rights of the unborn child”. The case signalled a troubling regression, revealing how quickly the judicial needle can swing from affirming autonomy to reinstating paternalistic control.

These cases, decided within a span of a few months, underscore a persistent tension in Indian abortion law, the conflict between state control over reproduction and a woman’s right to make decisions about her own body. While the MTP Act appears liberal compared to many jurisdictions, it still operates within a criminal framework, treating abortion as a permitted exception rather than a guaranteed right.

Legal Framework on Abortion in India

Abortion in India is governed primarily by the Medical Termination of Pregnancy Act, 1971 (“MTP Act”), as amended in 2003 and 2021. The 2021 amendment^[iv] extended the gestational limit for certain categories of women including survivors of rape, minors, and cases of foetal abnormality from 20 to 24 weeks and allowed termination up to any stage if necessary to save the woman’s life.

However, the MTP Act does not recognise abortion as a matter of choice. Instead, it operates as an exception to the criminal offence of “causing miscarriage” under Sections 312–318 of the Indian Penal Code, 1860^[v], which prescribe imprisonment for anyone who induces an abortion outside the conditions set by the Act. This criminal backdrop means that both patients and providers risk legal action if the procedural and medical requirements are not strictly followed.

Two other statutes intersect with abortion access. The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994^[vi] regulates diagnostic techniques to prevent sex-selective abortion but has, in practice, led to over-regulation and fear among providers. The Protection of Children from Sexual Offences Act, 2012^[vii] mandates reporting of all sexual activity involving minors, which can delay access to abortion for adolescent girls.

On the international plane, India is bound by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)^[viii] and the International Covenant on Civil and Political Rights (ICCPR)^[ix], which require the State to respect and protect reproductive autonomy and privacy. Yet, the domestic framework stops short of granting abortion as an unqualified constitutional right. Instead, it remains mediated through medical opinion, statutory categories, and, ultimately, the State’s discretion.

Judicial Approaches to Women’s Autonomy

The judiciary has been central to shaping abortion law in India, often stepping in where statutory language is silent or ambiguous. But its approach has been inconsistent, oscillating between affirming women’s autonomy and reinforcing state control.

The Supreme Court’s landmark decision in Suchita Srivastava v. Chandigarh Administration^[x] marked the first strong articulation of reproductive choice as a component of the right to personal liberty under Article 21 of the Constitution. The Court stressed that a woman’s right to make reproductive choices including the decision to carry a pregnancy to term or terminate it is part of her bodily integrity, dignity, and privacy. This judgment has since become the bedrock for rights-based arguments in abortion cases.

In X v. Principal Secretary, Health & Family Welfare Department^[xi], the Court further expanded this principle, holding that marital status cannot determine access to abortion under the MTP Act. Crucially, it recognised that the law must account for the reality of marital rape, even though marital rape itself remains outside the penal code. The decision reframed the scope of “woman” under the MTP Act to include unmarried and non-traditional family structures.

However, progressive momentum was disrupted in X v. Union of India^[xii], where the Court denied termination to a woman with postpartum psychosis at around 26 weeks. While acknowledging her mental health condition, the bench prioritised the “rights of the unborn child” and relied heavily on a medical board’s cautious recommendation. This case reflected a paternalistic tilt, where the woman’s decisional autonomy was subordinated to state-defined notions of protection.

These judgments illustrate a broader pattern where when courts adopt a rights-based lens, autonomy advances; when they lean into protectionism, women’s agency recedes. The resulting jurisprudence is uneven, leaving reproductive rights vulnerable to shifts in judicial philosophy.

State Control Mechanisms

While the MTP Act is framed as a public health measure, in practice it operates as an instrument of state control over reproduction. The criminal provisions in the Indian Penal Code mean that abortion is legally permissible only when it falls within the narrow grounds prescribed by the statute^[xiii]. Outside of these, both patients and providers risk prosecution. This “criminal exception” model creates a chilling effect doctor often refuse services for fear of legal liability, even when the conditions for termination are met.

Medical gatekeeping reinforces this control. For abortions between 20 and 24 weeks, the 2021 MTP Amendment requires approval from two registered medical practitioners, and in many states, medical boards must review cases involving foetal abnormalities or pregnancies beyond 24 weeks. Research shows these boards often cause procedural delays, forcing women either to carry unwanted pregnancies to term or to seek unsafe alternatives^[xiv].

Surveillance mechanisms further entrench control. Under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act^[xv], clinics must comply with stringent reporting requirements aimed at preventing sex-selective abortion. However, the compliance may have discouraged many providers from offering abortion services at all, regardless of the reason for termination.

The official rationale for these restrictions is to “protect life” and prevent misuse. But this claim sits uneasily against public health data, the NFHS-5 reports that unsafe abortions still account for a significant proportion of maternal deaths in India^[xvi]. Instead of ensuring safe and timely access, the regulatory framework often prioritises control over care with women’s autonomy sacrificed to bureaucratic procedure and moral policing.

Bodily Autonomy and Reproductive Rights

In Justice K.S. Puttaswamy v. Union of India^[xvii], the Supreme Court affirmed that privacy is a fundamental right under Article 21, encompassing decisional autonomy in matters of family, procreation, and bodily integrity. When applied to abortion, this principle means that the decision to continue or terminate a pregnancy should rest primarily with the woman not the State, not the medical establishment.

However, Indian abortion law does not treat autonomy as absolute. The MTP Act requires medical justification for every termination, effectively outsourcing a woman’s decision to the judgment of doctors. This shifts abortion from a rights-based entitlement to a conditional medical privilege.

A reproductive justice framework pushes beyond the language of “choice” to confront structural barriers that undermine autonomy. It recognises that even when the law permits abortion, access is shaped by geography, caste, income, stigma, and provider bias. Rural women, particularly those from Dalit communities, may have to travel significant distances to reach functional medical facilities, limiting access even when care is legally available^[xviii].

Minors often face the dual barrier of parental consent and the chilling effect of mandatory reporting under the POCSO Act, which deters many from approaching registered practitioners.^[xix]  Survivors of sexual violence can also encounter retraumatising delays and procedural hurdles, as in the case of a 13-year-old rape survivor at AIIMS who was denied diagnostic procedures for lack of an ID and had to wait 13 days before the MTP board convened^[xx].

The gap between formal legality and practical access is not a coincidence, it is the predictable outcome of a system that continues to view women’s reproductive capacity as subject to oversight and control. Autonomy here is contingent, mediated by State approval and social acceptability. If constitutional privacy and dignity are to mean anything in practice, abortion must be reframed as a healthcare right guaranteed by the Constitution, one that women can exercise without having to seek permission or justify their reasons.

Women’s Autonomy vs. State Control

The Indian abortion regime exemplifies a carceral paradigm, employing criminal law to govern women’s reproductive autonomy while framing such control as protective. This approach embeds abortion within a punitive regime, positioning the State as the ultimate arbiter of a woman’s bodily autonomy.^[xxi] Even the 2021 MTP Amendment, celebrated as progressive, retains the criminal backbone by ensuring that abortion remains a permitted exception rather than a guaranteed right.

This criminalised model has predictable consequences. It deters providers, fosters over-compliance through unnecessary documentation, and creates opportunities for moral policing particularly against unmarried women, adolescents, and survivors of sexual violence. The legal structure assumes that women’s reproductive capacity must be supervised to prevent misuse, a presumption that is deeply gendered and paternalistic.

Comparative constitutional developments show a different path. In 2021, Mexico’s Supreme Court decriminalised abortion entirely, declaring criminal penalties unconstitutional.^[xxii] South Africa recognises abortion on request up to 12 weeks, treating it as a public health service rather than a criminal exception^[xxiii]. These jurisdictions affirm that the State’s role should be to enable safe access, not to act as gatekeeper.

For India, moving towards a rights-based model requires dismantling the criminal framework and embedding abortion rights directly within constitutional guarantees of equality, dignity, and privacy by shifting the law’s centre of gravity from control to care.

Policy & Reform Recommendations

If India is to bring its abortion laws in line with constitutional guarantees and international obligations, the focus must shift from conditional permission to an affirmative right. This means decriminalising abortion by removing it entirely from the Criminal Code, as many feminists’ legal scholars and public health experts have urged. Termination should be regulated as a matter of healthcare, not criminal law, except where coercion or non-consensual procedures are involved. The MTP Act must also be amended to recognise abortion as a constitutional entitlement under Article 21, available on request up to a specified gestational limit, with later-term access in cases involving health risks or foetal anomalies.

The reform must also target procedural and systemic barriers. Mandatory medical boards for late-term abortions should be replaced with a process centred on the woman’s informed consent and the opinion of a qualified provider. Medical professionals need consistent training to offer non-judgmental, stigma-free care and to fully understand the legal rights of patients. Also, the unintended restrictive impact of the PCPNDT and POCSO Acts must be addressed, particularly in cases involving adolescents and survivors of sexual violence. These changes are not mere legislative housekeeping, they are fundamental to realising the constitutional promise of dignity, equality, and privacy for women in India.

Conclusion

The trajectory of abortion law in India reveals a deep, unresolved conflict between state control and women’s autonomy. Progressive rulings demonstrate the judiciary’s capacity to affirm reproductive rights, yet some cases show how quickly those rights can be curtailed when protectionist reasoning takes hold.

The MTP Act, even after amendment, keeps abortion tethered to a criminal framework, allowing it only under state-sanctioned conditions. This structure neither trusts women as full decision-makers nor treats abortion as an essential component of healthcare. Instead, it subjects reproductive decisions to medical gatekeeping, bureaucratic delay, and moral oversight.

If the constitutional promises of dignity, equality and privacy are to be realised, abortion must be reframed as a right, not an exception. That shift demands legislative courage, judicial consistency, and a public health approach that prioritises care over control. Until then, the law will continue to treat a woman’s body as a site of permission when it should be a domain of unquestioned autonomy.

[i] X v. Principal Sec’y, Health & Family Welfare Dep’t, Govt. of NCT of Delhi, (2022) 10 SCC 1 (India).

[ii] Medical Termination of Pregnancy Act, No. 34 of 1971, INDIA CODE (as amended by Act No. 8 of 2021).

[iii] X v. Union of India, W.P. (Crl.) No. 1020 of 2023.

[iv] Medical Termination of Pregnancy (Amendment) Act, No. 8 of 2021, INDIA CODE (2021).

[v] Replaced by Bharatiya Nyaya Sanhita, 2023, §§ 88–92.

[vi] Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, No. 57 of 1994, INDIA CODE.

[vii] Protection of Children from Sexual Offences Act, No. 32 of 2012, INDIA CODE (2012).

[viii] Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13.

[ix] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.

[x] Suchita Srivastava v. Chandigarh Admin., (2009) 9 SCC 1 (India).

[xi] X v. Principal Sec’y, Health & Family Welfare Dep’t, Govt. of NCT of Delhi, (2022) 10 SCC 1 (India).

[xii] X v. Union of India, W.P. (Civil.) No. 1137 of 2023 (Supreme Court of India, Oct. 16, 2023).

[xiii] Indian Penal Code, No. 45 of 1860, § 312, INDIA CODE (1860) (now Bharatiya Nyaya Sanhita, No. 45 of 2023, § 88, INDIA CODE (2023)).

[xiv] Supreme Court Observer, Abortion Law in India: A Step Backward After Going Forward (Oct. 20, 2023), https://www.scobserver.in/journal/abortion-law-in-india-a-step-backward-after-going-forward.

[xv] Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, No. 57 of 1994, INDIA CODE (1994).

[xvi] Ministry of Health & Family Welfare, Government of India, National Family Health Survey (NFHS-5) 2019–21: India Fact Sheet (2021), https://main.mohfw.gov.in/sites/default/files/NFHS-5_Phase-II_0.pdf .

[xvii] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 (India).

[xviii] Health Care Access Among Dalits in India, Wikipedia (last visited Aug. 15, 2025), https://en.wikipedia.org/wiki/Health_care_access_among_Dalits_in_India.

[xix] Audrey Dmello, SC Abortion Verdict: Reading Down Mandatory Reporting Under POCSO Is a Double-Edged Sword, The Wire (Oct. 4, 2022), https://thewire.in/law/supreme-court-abortion-verdict-mandatory-reporting-pocso-double-edged-sword.

[xx] Paras Singh, Court Issues Norms for Pregnancy Termination in Sexual Assault Cases, Times of India (June 3, 2025), https://timesofindia.indiatimes.com/city/delhi/court-issues-norms-for-pregnancy-termination-in-sexual-assault-cases/articleshow/121578550.cms

[xxi] Dipika Jain, Abortion and the Law in India: A Feminist Perspective, 14 NAT’L L. SCH. INDIA REV. 1, 8–12 (2002).

[xxii] Suprema Corte de Justicia de la Nación[Supreme Court of Justice of the Nation], Acción de Inconstitucionalidad 148/2017, Sept. 7, 2021 (Mex.), translated in Assoc. Press, Mexico’s Supreme Court Decriminalizes Abortion Nationwide, AP NEWS (Sept. 7, 2021), https://apnews.com/article/d87f6edbdf68c2e6c8f5700b3afd15de

[xxiii] Sally Guttmacher et al., Abortion Reform in South Africa: A Case Study of the 1996 Choice on Termination of Pregnancy Act,24 Int’l Family Plan. Persp. 191 (Dec. 1998), https://www.guttmacher.org/journals/ipsrh/1998/12/abortion-reform-south-africa-case-study-1996-choice-termination-pregnancy-act