Reproductive Autonomy and Constitutional Morality in India: A Critical Analysis of Abortion Jurisprudence after the 2021 Medical Termination of Pregnancy Act Amendment

Abstract

Women have always been the victims of discrimination and all other harmful practices, thus entitled to additional rights. Although there are several rights available to women at the international and national levels. However, the paternalistic control of women’s sexual and reproductive behaviour is manifested in laws and policies. Laws have been passed restricting women’s access to voluntary sterilization and Abortion. There are various legislations at the international and national level dealing directly or indirectly with women’s right to Abortion. These are the CEDAW 1979, ICPD 1994, the ICCPR, and ICESCR, giving expression to the values of UDHR. The jurisprudence in India on reproductive rights is at a developing stage. The Constitution, under Article 21, although it does not mention such rights, in a wider interpretation provides the right to live with dignity, make choices, and the right to privacy. There is central legislation dealing with Abortion, the Medical Termination of Pregnancy Act 1971, as amended in 2021, allowing Abortion on specific grounds. Provisions are also provided by indirect legislation, i.e., BNS. The Indian judiciary has played a progressive role in this regard most importantly since the 2021 amendment has become effective in one way, but on the other maintaining the restrictive approach.