Reproductive Labourers and the State’s Enduring Gatekeeping: Why the MTP Amendment Entrenches Control, Not Autonomy

My grandmother was sterilized without her consent by the State in 1975. In 2021, the State told me I could end my pregnancy at 24 weeks, but only if my trauma fit its checklist. Names change, but the systemic control over women’s reproductive choices is the same. India’s reproductive laws have far less to do with the women’s health or bodily autonomy than with the state’s reliance on rigid classifications. The law’s implicit and often explicit insistence on husband’s signature exemplifies its paternalism. Confronting this reality forces us to unlearn the comforting illusion that the state was ever a genuine ally in the pursuit of reproductive justice.

I.              The Taxonomy of Suffering

In 2021, the Indian Parliament amended the Medical Termination of Pregnancy Act to extend the gestational limit for abortion from 20 to 24 weeks.[1]Media proudly reiterated the government’s commitment to women’s health. But the amendment does not liberate women. It just reclassifies them.[2] Rule 3B of the MTP (Amendment) Act, 2021, defines seven categories of women who can avail termination between 20 to 24 weeks[3]-

1.     survivors of sexual assault, rape, or incest;

2.     minors;

3.     women who experience change in marital status during pregnancy, including widows or and women who are divorced;

4.     women with physical disabilities that qualify as ‘major disability’ according to the Rights of Persons with Disabilities Act, 2016.

5.     Women living with mental illnesses;

6.     Pregnancies where foetal malformation has substantial risk of being incompatible with women’s life or if foetus may suffer from physical or mental abnormalities, and

7.     Pregnant women in humanitarian settings or disaster or emergency situations as declared by the government.

If you do not find your reason in this list, the law has no explanation for you. A married woman at 22 weeks, whose mental health is collapsing, whose foetus has no ‘abnormality’, she is invisible. An unmarried woman pregnant from a consensual relationship who just cannot go on with X v. Principal Secretary notwithstanding - is still left out in the cold as far as the protections of the statutory scheme are concerned. The Supreme Court’s 2022 judgment expanded the interpretative scope, ruling that unmarried women have the same right as married women, but the Court cannot re-write the statute. The categories still exist. Still the gatekeeping is.

II.            The Husband as a Gatekeeper

Nowhere in the Medical Termination of Pregnancy Act, 1971, does it say a husband is required to provide his consent, express or implied.[4] On reading its Section 3, it is inferred that it’s about what medical professionals diagnose regarding the women’s physical or mental health. Though, practically, the current legal framework is deeply rooted in patriarchal presumptions that a married woman does not have bodily autonomy to decide whether she wants a child or not. Quite often, it’s the spouse or the in-laws who steer the decisions regarding her pregnancy, sometimes openly and sometimes just by being there in the room that makes ‘no’ harder to say.[5] A woman walks into the clinic, and there’s an unspoken expectation that her spouse should be there too, not because any rule requires it, but because that’s simply how things are done. In-laws weigh in on whether a pregnancy should continue based on things that do not keep the women’s health at core, rather, it is based on the sex of the child, family’s finances, whether it’s too soon after the last one, etc. On paper, the decision is hers. In reality, the women are denied exercising their reproductive rights.[6] It’s a systemic refusal to treat women as full decision-makers. 

The Supreme Court tried to close this gap in X v. Principal Secretary, Health and Family Welfare Department.[7] In this case, Chief Justice D.Y. Chandrachud unambiguously affirmed that reproductive autonomy sits at the very core of dignity, privacy, and bodily integrity.[8] He stated that the marriage changes nothing; an unmarried woman and a married woman have identical rights to abortion up to 24 weeks. The judgement also recognized ‘marital rape’ under the definition of ‘rape’ in BNS, 2023, taking into account the grim reality of non-consensual sex within marriage.

None of this came from nowhere. The case of Suchita Srivastava v. Chandigarh Administration laid down the foundation for this ruling long ago.[9] Recognizing the reproductive choices of a mentally disabled woman carrying a pregnancy from a rape, the court placed reproductive rights of women under ‘Personal Liberty’ enshrined under Article 21. This judgement was reiterated in Justice K. S. Puttaswamy v. Union of India, which recognized the choice of the woman whether to continue with her pregnancy or not regardless of her socio-economic status.[10] 

In January 2026, Justice Survir Sehgal of the Punjab and Haryana High Court said “A married lady is the best judge to evaluate as to whether she intends to continue with the pregnancy or get it aborted. Her willingness and her consent are all that matters”.[11] He clarified that the MTP Act does not mandate consent of the spouse, express or implied; hence the woman remains the independent decision-maker. These judgements are quite persuasive and strengthen the legal position of women in asserting their bodily autonomy. However, the transformative potential of such rulings is often hindered by the paternalistic legal and institutional framework that continues to impede the full realization of the reproductive autonomy of women.

Under Section 3(2) of the Medical Termination of Pregnancy Act, the primary authority remains with ‘Registered Medical Practitioners (RMP)’. It states that up to 20 weeks of pregnancy may be terminated, if, in good faith, the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health or there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.[12] Under its explanation 1 and 2, it clarifies that up to 20 to 24 weeks of a foetus may be terminated if pregnancy is alleged by the pregnant woman to have been caused by rape, or where any pregnancy occurs as a result of failure of any contraceptive method used by any married woman or her husband, so that the suffering caused by such pregnancy is presumed to constitute an injury to the mental health of the pregnant woman.

Somewhere in that chain, the consent of the spouse, asked for or just assumed, tends to slip back in. The opinion of the RMP ends up serving dual purposes: medical judgement on paper and social gatekeeping in practice. This is what feminist scholars have been saying for decades that the legal framework, even though well-intentioned, keeps missing the concrete texture of shame, power and coercion that women navigate.

Nivedita Menon has argued that rights discourse on abortion often remains entrapped under the liberal idea of ‘privacy’ that never really interrogates the family as a site of pressure and control for women.[13] The ‘X’ judgement reveals this tension clearly by narrowly expanding the definition of marital rape without decriminalizing it altogether. Apparently, it’s progressive more than it changes anything in reality. Because real equality means dismantling the idea that a woman’s body is something the family or the state gets to have interest in. Until then, the law remains paternalistic, which implicitly presumes women are subordinate to the wishes of their spouses and families.

III.          Double-Bind of ART & Surrogacy Laws

It’s quite contradictory how Indian legislature has approached the women’s reproductive rights. Enacting the MTP amendment in 2021 and simultaneously passing the Assisted Reproductive Technology (Regulation) Act as well as the Surrogacy (Regulation) Act, 2021, reveals a deeply ambivalent approach of the state towards women’s bodies and reproductive lives. On one hand, the MTP still relies upon medical gatekeeping and narrow classifications allowing termination of pregnancy. On the other hand, the ART and Surrogacy laws tightly control who gets help in ‘creating’ a pregnancy. The Surrogacy (Regulation) Act, 2021[14], completely bans commercial surrogacy under its Section 3.[15] However, it permits ‘altruistic surrogacy’, usually through a close relative, essentially an unpaid labour.[16] It imposes strict age and eligibility criteria here. This option is restricted to only heterosexual married couples with limited exceptions for widowed and divorced women, while completely excluding the live-in couples, LGBTQIA+ individuals and single persons.[17]

Feminist anthropologist Amrita Pande, who has extensively written on surrogacy in India, exposes how state policies romanticize women’s reproductive labour as a natural, selfless duty rather than skilled, embodied work deserving fair compensation.[18] Confining the surrogacy to the ‘private’ family sphere will not eliminate exploitation, it simply makes it invisible and hard to regulate. In the majority of the cases, women being financially unstable lose bargaining power, while the risks to their health remains real. The ART Act, 2021, regulates assisted reproductive technology banks and the utilization of assisted reproductive technology services for addressing the issues of reproductive health, freezing of gametes, embryos, embryonic tissues in case of infertility, disease or social or medical concerns.[19] While these safeguards might sound protective, the critics have argued that these measures transfer the burden on women e.g., donation of eggs (without recognizing their labour). Madhushree Jana has highlighted how law pushes for ‘altruistic’ egg donation undermines women’s economic agency in an existing unequal sector.[20] 

In its depth, the current laws reflect retrogressive patriarchal and caste-class beliefs about what a ‘proper’ family looks like. As Nivedita Menon has rightly pointed out that these laws treat reproduction as a matter of state-sanctioned morality rather than an expression of individual autonomy. So, a woman seeking an abortion has to fit under one of the classifications under MTP. Similarly, a couple desiring a child through surrogacy must fit the narrow legal definition of ‘deserving’ citizens. Law places the heaviest burden on the most marginalized, including women seeking termination of pregnancy or a woman who undergo surrogacy procedure. In both the situations, it is the woman bearing the physical, emotional and social risk. Despite of all progressive rulings, the existing grim situation reveals how state continues to police reproduction through classification and control, rather than entrusting bodily autonomy to women to make deeply personal decisions about their bodies and futures.

IV.          Conclusion

Overall, the MTP Act, Surrogacy and ART laws appear more inclined towards regulating reproduction rather than facilitating it. To impart real change, the existing law must be amended. Removal of the RMP’s opinion under Section 3 and decriminalizing the abortion entirely are the need of hour. Canada has operated with decriminalizing the termination of pregnancy since 1988 and has successfully implemented safe, accessible services with low rates of complications while respecting autonomy. The classification ground under the MTP Act is already broad to incorporate women’s physical and mental health complications. The main issue lies in procedural gatekeeping, which includes the mandatory involvement of two or more RMPs and medical board to terminate a pregnancy of up to 24 weeks. So, even if the substantive grounds are progressive, its procedure is paternalistic in nature. Amended Section 3 should be primarily highlighting the woman’s informed consent for the termination of her pregnancy and not the opinion of group of RMPs to justify the grounds.

Section 2(b), 2(g) and 4 of the Surrogacy (Regulation) Act, 2021 must be amended to allow regulated compensated surrogacy and egg donation as legitimate skilled professions. Minimum compensation standards must be set limiting the number of cycles per woman. Based on the findings of Amrita Pande in ‘Wombs in Labour (2021)’, which reveal that the lack of compensation drives exploitation of surrogate mothers rather than eliminating it, it is suggested that such women must be provided with lifelong health insurance. Conditions like marital status, sexual orientation and nationality must be removed from Surrogacy and ART laws, and an inclusive approach must be adopted aligning with Article 21 of the Indian Constitution to assist reproduction, to reduce exclusionary gatekeeping.

[1] Sneha Kumari and Jugal Kishore, ‘Medical Termination of Pregnancy (Amendment Bill, 2021): Is It Enough for Indian Women Regarding Comprehensive Abortion Care??’ (2021) 46(3) Indian Journal of Community Medicine: Official Publication of Indian Association of Preventive & Social Medicine 367, 369.

[2] Aparna Chandra, ‘Constitutional but Criminal: Abortion in India’ (Verfassungsblog, 2023) <https://verfassungsblog.de/constitutional-but-criminal/> accessed 10 August 2026.

[3] Ministry of Health and Family Welfare, ‘Medical Termination of Pregnancy (Amendment) Rules 2021, GSR 730(E)’ (Live Law, 12 October 2021) <https://www.livelaw.in/pdf_upload/rules-mtp-402380.pdf> accessed 10 August 2026.

[4] ibid.

[5] Anvita Dixit and others, ‘Qualitative Examination of the Role and Influence of Mothers-in-Law on Young Married Couples’ Family Planning in Rural Maharashtra, India’ 10(5) Global Health, Science and Practice e2200050; Kerry L. D. MacQuarrie and Jeffrey Edmeades, ‘Whose Fertility Preferences Matter? Women, Husbands, In-Laws, and Abortion in Madhya Pradesh, India’ (2015) 34 Population Research and Policy Review 615, 639.

[6] Arunangshu Bhattacharyya and others, ‘Cultural Beliefs and Decision-Making in Induced Abortion: Facilitator and Barriers to Safe Abortion Services in Rural Haryana, India – A Qualitative Study’ (2025) 23(2) Current Medical Issues 112.

[7] X v Health and Family Welfare Department [2022] SCC OnLine 905 (Supreme Court of India).

[8] Prachi Bhardwaj, ‘Woman Cannot Be Denied Right to Safe Abortion Only on the Ground of Her Being Unmarried: Supreme Court’ (SCC Online, 2022) <https://www.scconline.com/blog/post/2022/07/22/unmarried-woman-cannot-be-denied-right-to-safe-abortion-supreme-court-delhi-high-court-termination-of-pregnancy-legal-laws-news-research-updates/> accessed 10 August 2026.

[9] Suchita Srivastava & Anr vs Chandigarh Administration [2010] AIR 235 (Supreme Court of India).

[10] Arijeet Ghosh and Nitika Khaitan, ‘A Womb of One’s Own: Privacy and Reproductive Rights’ (2017) Economic and Political Weekly 52(42/43).

[11] ‘Her Willingness, Consent All That Matters: HC on Punjab Woman’s Plea for Abortion’ (Hindustan Times, 1 January 2026) <https://www.hindustantimes.com/india-news/her-willingness-consent-all-that-matters-hc-on-punjab-woman-s-plea-for-abortion-101767262687001.html> accessed 10 August 2026.

[12] Ministry of Health and Family Welfare (n 3).

[13] Nivedita Menon, ‘Abortion as a Feminist Issue: Who Decides and What?’ (Firstpost, 14 May 2012) <https://www.firstpost.com/living/abortion-as-a-feminist-issue-who-decides-and-what-308059.html> accessed 10 August 2026.

[14] The Surrogacy (Regulation) Act 2021.

[15] Soumya Kashyap and Priyanka Tripathi, ‘The Surrogacy (Regulation) Act, 2021: A Critique’ (2021) 15(1) Asian Bioethics Review 5, 18.

[16] The Surrogacy (Regulation) Act 2021, s 4.

[17] The Surrogacy (Regulation) Act 2021, s 2(1)(h), (r) and (s) read with s 4.

[18] Amrita Pande, ‘Commercial Surrogacy in India: Manufacturing a Perfect Mother‐Worker’ (2010) In Signs, The University of Chicago Press 35 (4).

[19] Assisted Reproductive Technology (Regulation) Act 2021.

[20] Madhusree Jana and Prabha Kotiswaran, ‘Reproductive Resistance, Law, and Informality: A Critique of the Indian Assisted Reproductive Technology (Regulation) Act, 2021’ (2026) 35(2) Journal of Gender Studies 342, 361.