When the Law Itself Breaks Confidentiality: Abortion, Adolescents, and the Limits of Privacy in India

On July 28, 2025, the Bombay high court called out the police for attempting to extract personal details of a 15-year-old girl who had approached a hospital for an abortion. The pregnancy, at thirteen weeks, had resulted from a consensual relationship. The doctor, Nikhil Datar, a Mumbai-based gynaecologist, reported the case, as mandated under the Protection of Children from Sexual Offences (POCSO) Act.

But, the police were not satisfied with procedural compliance alone; they demanded full details of the girl, her parents and the documents about their hospital visits. That is when the doctor sought the high court’s intervention. The Bombay high court finally stated in no uncertain terms that such insistence amounted to harassment and warning that doctors cannot be treated as “soft targets” for procedural overreach.

This single event captures the contradiction at the heart of abortion access for adolescents in India. While the Medical Termination of Pregnancy (MTP) Act guarantees abortion as a right under certain conditions, POCSO’s mandatory reporting framework has turned healthcare settings into surveillance sites. In practice, young adolescent girls are expected to exercise their right to terminate a pregnancy while simultaneously surrendering their right to privacy and in-effect their safety.

The consequences are predictable and well-documented. A growing body of research shows that legal contradictions and institutional confusion disproportionately harm girls under 18 who attempt to access abortion. They are frequently denied care, delayed through extrajudicial demands, or subjected to institutional violence, including forced disclosure, medical board scrutiny, and police investigation.

MTP vs. POCSO: The structural clash

On one hand, the MTP Act allows a pregnant person to seek an abortion with informed consent, even if they are underage, provided that a guardian consents on their behalf. The Act also offers strong protections for confidentiality. On the other hand, POCSO, enacted a decade later, imposes a blanket obligation on all healthcare providers to report any case where a minor is pregnant, regardless of whether the pregnancy is the result of assault or consensual sex between adolescents.

In the eyes of the POCSO Act, any sexual activity involving a person below 18 years of age constitutes statutory rape. The only exception here is for sex within marriage with girls under 18 years of age, irrespective of consent.

This overlap has had a chilling effect. Healthcare providers risk criminal prosecution if they fail to report, leading many to require unnecessary judicial or administrative approvals. A 2020 Pratigya Campaign study of 243 court cases seeking permission for abortion found an increase in such petitions, indicating that access is increasingly routed through the courts. In practice, providers often require parental consent even when the MTP Act does not mandate it.

What does the data say?

There is a lack of data around minor abortions in India as most data surveys, including the National Family Health Survey (NFHS), club minors and women report abortions in a single category for all girls and women in the 15-49 age bracket. In any case, given the medical abortions outside clinics and with the ordering of pills online, a systematic and comprehensive tracking of this data is difficult.

However, a 2024 factsheet on the legal framework currently governing abortion services and adolescent sexuality in India reiterates the National Family Health Survey (NFHS-5)’s finding that almost 40 per cent of women first had sex before the age of 18. Incidentally, we are also at that historical juncture in time wherein there is an ongoing case regarding lowering the age of consent in India.

What do the courts say?

The discourse on the age of consent and adolescent sexuality in India has had a longer history. In recent times, in 2022 and 2023, the Law Commission of India was requested by the High Courts of Karnataka Madhya Pradesh to re-examine the age of consent under POCSO. The requests were made in consideration of “the rising number of cases relating to minor girls above the age of 16 years falling in love, eloping and having sexual intercourse with the boy” and the role of POCSO in causing “gross injustice in cases of statutory rape where de facto consent is present.”

Yet, in its 2023 report, the Law Commission said it was “not advisable to tinker with the existing age of consent under the POCSO Act” and proposed “guided judicial discretion in the matter of sentencing” instead. While this recommendation has not yet been codified in law, courts in several states have applied the principle in practice.

Interestingly, there have been several cases wherein the Courts have taken cognisance of the consensual nature of adolescent sexual relationships. A key example is the Madras High Court observation in 2019  stating “such relationship would be the result of mutual innocence and biological attraction. Such a relationship cannot be construed as an unnatural one or alien to between relationship of opposite sexes.” The judgment also recommended a revision of the age of consent and consideration of close-in-age exemptions.

A study of  1,715 judgments decided between 2016 and 2020 by Special Courts in Assam, Maharashtra, and West Bengal, that entailed an express reference to a romantic relationship between the victim and the accused, found in 87.9% of the 1715 romantic cases, the victim herself admitted to a romantic relationship with the accused and in 81.5% cases she did not say anything incriminating against the accused.

The study further concluded: “The might of the criminal justice system was instead invoked more often to control and deter girls from being in relationships against the wishes of their family, and to coerce the girls to return home if they had eloped. In a few cases, it also served as a device to compel the accused to honour his promise of marriage.”

In the seminal X v. Principal Secretary, Health & Family Welfare Department judgment, the Supreme Court addressed the tension between the POCSO Act, the confidentiality provisions and privacy guarantees of the MTP Act, and the reproductive autonomy of minors. The Court held that when a minor engages in consensual sexual activity and seeks an abortion, a registered medical practitioner is not required to disclose the minor’s identity under POCSO, provided the minor and their guardian request confidentiality.

It further clarified that the practitioner is exempt from revealing the minor’s identity in any related criminal proceedings arising from the report. While this protects confidentiality for those seeking a termination, pregnancies in consensual adolescent relationships that are continued will still trigger mandatory reporting.

Law on paper vs. Law in practice

The 2021 MTP Amendment extended the upper limit for abortion to 24 weeks in certain cases, including for minors, but did not address these conflicts with POCSO. Without clear guidance on reconciling these laws, providers often choose the legally safest route for themselves: report, delay, and refer to courts.

Such delays can move pregnancies beyond the medical abortion threshold, resulting in minors carrying pregnancies to term or seeking court orders. Even when courts approve terminations beyond the gestational limit, the process can cause significant delays. Court responses vary. While some rulings uphold MTP protections, others require police cases, medical board evaluations, or proof of serious harm before granting them approval. The 2022 Supreme Court judgment affirming abortion rights for all women, regardless of marital status, has not been uniformly reflected in lower-court or police practices.

POCSO’s blanket reporting mandate does not differentiate between coercion and consensual relationships between adolescents. Implementation reviews of POCSO have acknowledged its use in cases involving mutual consent, but no formal framework has been established to allow minors to access abortion care without triggering criminal proceedings.

These inconsistencies also disproportionately affect adolescents from marginalised communities, including Dalit, Adivasi, and working-class girls, who face greater difficulty meeting procedural requirements. For instance, a 2017 study found that 25% of POCSO cases applied to “romantic relationships.” In 2021, a response by the then Minister of State (Home) - G. Kishan Reddy, in the Rajya Sabha, again laid bare similar facts that there were 1,117 and 869 cases against Dalit children alone under POCSO in 2019 and 2018 respectively.

In the absence of clear reform, healthcare providers operate with minimal legal clarity. For instance, in 2023, all government and private hospitals refused to terminate the pregnancy of a 16-year old girl without reporting to the police, despite the girl and her mother admitting the pregnancy as “the result of a “consensual and close relationship.” The case is symptomatic of how healthcare providers resort to over-compliance, constrained service provision, and conditions that may lead to unsafe abortions among minors.

The Bombay high court’s stance, therefore, is a reminder for the need for coordinated interpretation of conflicting laws to minimise harm for minors. Unless privacy protections are made enforceable in practice, and abortion for minors is delinked from punitive legal processes, structural barriers will continue to limit access to safe, confidential, and timely reproductive care.

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