The history of abortion rights in India dates back to the Medical Termination of Pregnancy Act (MTPA) of 1971. It is often considered a landmark moment in Indian social legislation, opening the doors, as many would say, to social reform. The adoption of the MTPA as early as the 1970s is often opposed in the West, where abortion rights continue to be debated. The politics surrounding the law, however, show that it was less a product of India’s women’s movement and more a means of controlling the country’s growing population. The wording of the law and the arguments advanced in its favor remain heavily criticized by Indian feminists.
Colonial discourse on the criminalization of abortion
The legalization of abortion in the 20th century contrasts sharply with attitudes towards the issue in 19th century colonial India. Historian Indira Chowdhury in her article “Delivering the Murdered Child”: Infanticide, Abortion and Contraception in Colonia India” (2006) cites negative attitudes towards abortion within the 19th century European medical fraternity that blamed it on the lack of morality among Indians.
In the words of Allan Webb, Professor of Descriptive and Surgical Anatomy at Calcutta Medical College:
“Perhaps no country in the world has slain so many infants as India, and no human race has more generally practiced the abominable act of killing children while still in the womb of their mother.The art of producing abortion and all its long series of evils, upsetting both the order of nature and the end of being, is still practiced only too openly. the strong arm of a humane government has done much to cleanse the country of the loathsome strain of child murder, it has not been able to reach that more common and secretive practice of abortion.
Another example of a similar analysis of abortions in India, cited by Chowdhury, is that of Norman Chevers, who was secretary of the medical council of Fort William, Calcutta. In a handbook written in 1856, Chevers noted that the vigilant control of Hindu society over the conduct of its women, particularly in regard to the prohibition of the remarriage of widows, resulted in too many abortions.
The colonial discourse on the lack of morality among Indians found a response from nationalists who claimed that while India had a glorious past, it had been corrupted by the presence of colonialism.
In their attempt to solve the problem, the British in 1860 added Act XIV to the Indian Penal Code with Sections 312 to 318 criminalizing abortion. Article 315 criminalizes any “act done with intent to prevent a child from being born alive or to cause it to die after birth. Section 316 noted that “causing the death of an unborn child by an act amounting to culpable homicide.”
Discourse on population control in the 20th century
During the third decade of the 20th century, a narrative emerged, both among the Indian elite and in international discourse, that India was an overpopulated country. Historian Matthew Connelly in his article, “Population Control in India: Prologue to the Period of Emergency” (2006) note, “Westerners preferred to make India an example when they developed their own theories and learned from them for policy.”
“In the 1920s, when American and British writers began to warn of a ‘rising tide of colour’, India was once again the most often cited example, even though there was still no evidence that its population was increasing rapidly.” he adds. In the 1930s, birth control activists in the west, such as Margaret Higgins Sanger, focused on opening birth control clinics in India.
Chowdhury in his article notes that in those early years of India’s population control experiments, abortion was rarely prescribed as the existing penal code prohibited it. Moreover, population control remained exclusively focused on the family as a reproductive unit. “Abortion was seen primarily as the termination of an illicit and illegitimate pregnancy which was often the fate of unmarried women and widows and had little place in this (family planning) discourse”, she writes.
A similar caution against abortion was also maintained by western birth control activists. Sanger, for example, spoke of birth control in a 1935 radio conference as a “means to prevent” and “not to destroy”. She repeated to her listeners that out of birth control, she didn’t want to interfere with life after it started.
The issue of legalizing abortion was first raised at the International Conference on Family Planning in Bombay in 1952. The argument for decriminalizing abortion was woven around the fact that it was necessary to offer the same in safe and scientific terms. HS Mehta, who has advocated for abortion, said the legislation would allow qualified doctors to offer it scientifically.
There was also the issue of population control which had a role to play. In 1964, the Indian Parliamentary and Scientific Committee under the chairmanship of Lal Bahadur Shastri proposed that abortion be permitted as a remedy for contraceptive failure.
In September 1964, the government set up the Shantilal Shah Committee to examine the issue of abortions across the country and recommend whether a law was needed. “The Committee traveled the country for two or three years and realized that many women with unwanted pregnancies were using unsafe methods and therefore dying. They proposed to the government that there should be an obligation to liberalize abortions outside the Indian Penal Code,” says Dr Suchitra Dalvie, Consultant Gynecologist and Coordinator, Asia Safe Abortion Partnership.
In 1967, the report of the Shah’s Committee was sent to all states for comments. While most states opted for the bill or remained silent, the only opposition came from the DMK government of Tamil Nadu.
On November 17, 1969, the MTPA Bill was introduced in the Rajya Sabha by S Chandrashekhar, who was then Minister of Health, and DP Chattopadhyay, who was Deputy Minister of Health. Savitri Chattopadhyay in a 1974 article in the Journal of the Indian Law Institute writing, “Interestingly, while the initiative for the MTPA came from a family planning organization, the government and the ruling party in Congress have always championed the bill as social legislation aimed at empowering women.She observes that Chandrashekhar and Chattopadhyay have consistently denied that this should be a population control measure. “The depth of opposition that these ministers had to overcome is indicated by the fact that even among doctors surveyed in West Bengal, 25% opposed the bill,” writes Chattopadhyay. A few doctors were also of the opinion that the Ford Foundation in America was behind the project. Considering the mores of the time, it may have been realized that the bill would be more accepted as a tool for the liberation of women.
Once in parliament, most political parties took no formal position for or against the bill. The Congress party fully supported the bill.
Chattopadhyay, who introduced the bill in 1971, defended it by observing that four million induced abortions take place every year and that ‘swadharma’ must be in accordance with ‘yugadharma’ or the spirit of society. . He was supported by other members of Congress such as GS Malkote, Bishwanarayan Shastri and Mukul Banerjee.
A voice of opposition came from Jana Sangh member Man Singh Verma, who argued that the MTPA would disrupt society “leading to more corruption and more sex crimes” (quoted by Savitri Chattopadhya). He argued that birth control must come through self-control and that while women were the worst victims of Indian society, the MTPA would not lead to their emancipation.
Some Kerala congressmen have also opposed the bill, although the party has not taken an official position on it. MM Joseph, who was a member of the Lok Sabha of Peerumedur, described the abortion as practically “murder”.
The Marxist Communist Party (CPM) opposed the bill on the grounds that it seemed “lukewarm” in nature and evidence of the ruling party’s hypocrisy. Party member AP Chatterjee instead called for the full recognition of women’s rights, her decision to terminate a pregnancy without the consent of any guardian or abide by the conditions set out in the bill.
Opposition from different fronts, however, could not jeopardize the passage of the bill given the strength of Congress in both houses of Parliament.
The MTPA has stated that “pregnancy may be terminated by a licensed physician, if the duration of pregnancy does not exceed twenty weeks”. The conditions laid down included “the continuation of the pregnancy would entail a risk to the life of the pregnant woman or serious damage to her physical or mental health; or if there is a substantial risk that the child will be born suffering from a serious physical or mental abnormality.
In addition, the law states that a termination of pregnancy can be obtained if “a pregnancy occurs as a result of the failure of a device or method used by a woman or her partner for the purpose of limiting the number of children or to prevent a pregnancy” or “when a pregnancy is alleged by the pregnant woman to have been caused by rape.
The amendment to the MTPA in 2021 raised the upper abortion limit from 20 to 24 weeks for rape victims, incest victims and certain other categories of women such as the disabled and minors.
The wording of the law has been heavily criticized by feminist organizations and women’s health groups. “The problem is that all the conditions of the law are not determined by the pregnant person but by the doctor,” says Dalvie. “So all the power is still in the hands of the doctor and not the woman.” Dalvie also points to the fact that the amendment increased the upper limit to 24 weeks for certain women considered victims. “But if abortion is safe after 24 weeks, it must be accessible to everyone. Otherwise, it’s a way of saying that if one gets pregnant consensually, then she will be punished.
Indira Chowdhury, “Rescuing the ‘Murdered Child’: Infanticide, Abortion, and Contraception in Colonial India” in Science and the Raj: A Study of British IndiaOxford University Press, 2006
Savithri Chattopadhyay, Medical Termination of Pregnancy Act 1971: A Study of the Legislative Process, Journal of Indian Law, 1974
Geetanjali Gangoli, Reproduction, abortion and women’s health, Social scientist, 1998