When India passed the Medical Termination of Pregnancy (MTP) Act in 1971, it was hailed as a breakthrough. At a time when women were dying from unsafe, underground abortions, the Act created a legal path to safe procedures. For decades, it stood as one of the most progressive reproductive laws in the region. In 2021, Parliament went further, extending the upper gestational limit for certain cases from 20 to 24 weeks and explicitly including unmarried women within its ambit. These were bold steps forward.
And yet, for minors- girls below the age of 18-the law still feels like a locked door. The very provision designed to “protect” them often leaves them most vulnerable. Section 4(a) of the MTP Act insists that no abortion can be performed on a minor without her guardian’s written consent. On paper, it is a safeguard. In real life, it can become a trap.
The Guardian Consent Rule: A Safety Net That Fails
Imagine being sixteen, terrified, and pregnant. The law says you cannot end that pregnancy without your parent or guardian signing a form. What if your guardian is the abuser? What if they refuse? What if telling them puts you in physical danger?
This is not just a hypothetical. For many minors, the guardian consent rule is not protection-it is paralysis.
- Delays that wound: If a guardian refuses or is absent, the only option left is to go to court. By the time the petition is heard, the pregnancy may have crossed the legal limit, closing the door to termination altogether.
- Fear and silence: In a society where “family honor” often outweighs individual wellbeing, young girls are pressured into silence. Coming forward can mean shame, rejection, or violence.
- Risking unsafe abortions: With no safe legal route, some minors turn to unlicensed practitioners or unsafe methods. These decisions can cost them their health-or their lives.
- A clash with fundamental rights: Articles 14 and 21 of the Constitution guarantee equality, liberty, and privacy. Forcing a minor’s fate to rest entirely on someone else’s consent undermines those very rights.
How the Courts Have Responded
Over time, the judiciary has recognized that reproductive rights are inseparable from dignity and autonomy.
- Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1: Here, the Court emphasized that reproductive choice lies at the core of personal liberty under Article 21. Even in cases involving women with intellectual disabilities, consent could not simply be overridden by the state. The precedent: autonomy cannot be brushed aside under the guise of “protection.”
- X v. Principal Secretary, Delhi Civil Appeal No. 5802 of 2022 (India 2022) : The Supreme Court ruled that unmarried women have the same rights as married women to seek abortion up to 24 weeks. It rejected “artificial distinctions” that fueled stigma. While this case was not about minors, its reasoning-that laws must adapt to evolving social realities-directly speaks to their plight.
- Z v. State of Bihar (2018) 11 SCC 572: Perhaps the most heartbreaking example, where a 13-year-old rape survivor was forced to carry her pregnancy to term because of delays in the legal system. The Court itself called the outcome a “tragic consequence.”
Together, these rulings show a judiciary willing to protect reproductive autonomy. But they also highlight the gap between progressive judgments and the restrictive text of the statute.
The POCSO Complication
The Protection of Children from Sexual Offences (POCSO) Act, 2012, was designed to protect children from abuse. Yet, in abortion cases, it often makes things harder. Section 19 requires doctors to report any sexual activity involving a minor to the police.
For a young girl, this is terrifying. Seeking medical help means risking exposure, investigation, and stigma. Many simply stay away from hospitals.
In 2023, the Supreme Court softened this blow by holding that doctors need not disclose a minor’s identity if confidentiality is requested. This was a step forward—but only a step. Fear of mandatory reporting still shadows minors’ choices.
The Human Cost
The law books speak in neutral terms-“guardian consent,” “gestational limits,” “reporting obligations.” But behind those words are real girls with real lives.
- A 14-year-old, raped by someone she trusted, waiting weeks for court approval while her pregnancy advanced beyond the legal limit.
- A 16-year-old, assaulted within her own home, unable to tell her parents, trapped between silence and stigma.
- A schoolgirl, frightened and desperate, walking into an unlicensed clinic because the legal route was closed.
These are not statistics. They are stories of young lives derailed by a system that was meant to protect them but often ends up abandoning them.
Towards a Better System
If India is aiming to truly protect minors, the law must change.
- Introduce the Mature Minor Doctrine: Let doctors or psychologists assess whether a minor understands her decision. If she does, her consent should be enough.
- Quick judicial bypass: When guardian consent is not possible, minors should be able to seek court approval swiftly. Time is not a luxury in these cases.
- Guarantee privacy: The confidentiality safeguard hinted at by the Supreme Court in 2023 must be enshrined in law.
- Faster medical boards: Committees that decide late-term cases must operate within strict timelines. Delays can mean irreversible consequences.
- Education and awareness: Minors, parents, and even healthcare providers often do not fully know the law. Public awareness campaigns could bridge that gap.
Conclusion: Listening to Minors’ Voices
India has come a long way from the days when abortion was criminalized. The MTP Act was a milestone, and its amendment in 2021 furthered the cause. But for minors, the law still feels like a maze-complicated, frightening, and sometimes deadly.
The courts have reminded us that reproductive rights are part of dignity, autonomy, and equality. But unless the statute reflects that reality, minors will continue to face barriers that older women no longer do.
The real question is simple: Do we trust young women to know their own minds? Do we allow them dignity even when they are at their most vulnerable? Until we answer “yes,” India’s promise of justice remains incomplete.
Important Links/References –
- https://legislative.gov.in/sites/default/files/A1971-34.pdf
- https://egazette.gov.in/WriteReadData/2021/226130.pdf
- https://legislative.gov.in/sites/default/files/A2012-32.pdf
Author Name- Sakshi Gopal, B.A. LLB. (Hons.), 2nd Year Student, National University of Study and Research in Law, Ranchi
