Pregnancy termination is a delicate subject that has been discussed and debated for many years nearly in all the countries of the world. The Supreme Court of India recently declared that all women, married or not, have equal rights to seek abortion up to 24 weeks of gestation in compliance with the provisions granted under the Medical Termination of Pregnancy (Amendment) Act, 2021. The court granted a woman the right to terminate her pregnancy considering her right to bodily integrity and her freedom to make reproductive choices which is a component of her “personal liberty under Article 21 of the Constitution”.
Why the Need
Before the enactment of the MTP Act 1971, about five million MTPs were carried out per year in India, out of which around three million terminations were illegal. Many women resorted to unsafe termination methods at the hands of inexperienced persons. According to the Supreme Court (SC), the MTP Act 1971 was to provide a qualified ‘right to abortion’ and the termination of pregnancy which was never recognised as a normal recourse for expecting mothers.
Moreover, several petitions have recently been filed in courts seeking permission to terminate pregnancies that have passed the permissible gestational age, citing grounds of severe foetal abnormalities or pregnancies arising from sexual violence. Thus, in view of the changed social scenario, medical advancements, and growing cases of illegal and unsafe abortions, the central government recognised the need of granting access to safe and timely abortion services under the ambit of law, and accordingly carried out many amendments in the MTP Act 1971.
MTP Act 1971 vs MTP (Amendment) Act 2021
The MTP (Amendment) Act 2021, guarantees women’s dignity, autonomy, and secrecy when it comes to accessing safe abortion services.
| MTP Act 1971 |
MTP (Amendment) Act 2021 |
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| Gestational
Age Limit |
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| Opinion/Permission
of Registered Medical Practitioner (RMP) |
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| Contraceptive Failure |
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| Women’s Confidentiality |
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Keeping in mind the diversity of our country in terms of cultures, religious beliefs, traditions, and schools of thought, the MTP Amendment Act 2021 is seen as a bold and revolutionary step taken to promote and allow women to exercise their constitutional right of having control over their bodies and lives.
The new law was also welcomed by the World Health Organization, which viewed it as an important milestone towards “ending preventable maternal mortality to help meet the Sustainable Development Goals (SDGs) 3.1, 3.7 and 5.6”, and providing universal access to safe and accessible reproductive health services.
Landmark Judgment of the Supreme Court
The SC judgment, on September 29, 2022, held that unmarried women have the same right to terminate their pregnancy as married women.
The X v. the Principal Secretary Health and Family Welfare Department & Another case was decided by the three-judge bench of the SC, comprising D.Y. Chandrachud, A.S. Bopanna, and B. Pardiwala. The petitioner learned that she was pregnant in June 2022. On July 5, 2022, an ultrasound revealed an intrauterine pregnancy of 22 weeks. She moved a petition before the Delhi High Court requesting MTP through RMPs at a private or government centre before July 15, 2022, during the high court statutory limit of 24 weeks. She had requested the court to include unmarried women within the scope of Section 3 (2)(b) which governs the MTP between 20 and 24 weeks. The HC held that since the petitioner is an unmarried woman whose pregnancy arose out of a consensual relation, her case does not come under the Rule 3B of MTP Rules. She then filed a petition in the SC which, in turn, found that the principle of statutory interpretation is that the words of a statute must be read in their entire context.
The SC, while delivering its landmark judgment, emphasised that in a gender-equal society, it is imperative that interpretation of the MTP Act and Rules consider current social realities. The SC, in its verdict, said, “A changed social context demands a readjustment of our laws. Law must not remain static and its interpretation should keep in mind the changing social context and advance the cause of social justice.” This judgment coupled with the MTP (Amendment) Act significantly expanded the scope of MTP in India.
Additionally, the Apex Court clarified that rape, as grounds for abortion, includes marital rape as well. It stated that reading the provisions of the MTP Act in a manner that excludes married women, who may be pregnant as a result of forced or abusive sexual conduct of their husbands, would compel them to have children with abusive partners.
The Court empathetically noted that MTP is a beneficial legislation meant to provide access to abortion services for all pregnant persons. Hence, RMPs should offer MTP services without any extra-legal conditions like spousal or family consent, documentation, judicial authorisation, etc.
Some Other Notable Judgments in MTP Cases
In Justice K.S. Puttaswamy (Retd) vs the Union of India And Others (2017) as well as Suchita Srivastava v. Chandigarh Administration, the SC affirmed that making reproductive choices come under the constitutional rights of women. It said that the decision to procreate or abstain from procreation is an expression of a woman’s personal liberty as well as the assertion of her bodily integrity under Article 21 of the Indian Constitution.
In Meera Santosh Pal v. Union of India, the Supreme Court upheld a woman’s right to bodily integrity and reproductive choices. The court stated that a woman has the right to take all steps necessary to preserve her own life, and thus allowed the termination of pregnancy. Similarly, in Mamta Verma v. Union of India, and Tapasya Umesh Pisal v. Union of India, the SC permitted post-20-week abortions on the ground of severe foetal impairments that were incompatible with life outside the uterus.
In cases where people sought court permissions to undergo MTP, courts generally refer to Section 3 of the MTP Act and either permit such termination or direct a medical board to adjudge the possibility of terminating pregnancy of the petitioner.
For example, in X v. Govt of NCT of Delhi, an HIV positive woman sought the court’s permission to abort her pregnancy of 18 weeks, which she said was the result of forced prostitution.
Relying on Section 3 of the MTP Act, and in particular her willingness to terminate a pregnancy that resulted from rape, the high court allowed the termination, considering the mental, physical, social, and economic problems that the woman was likely to face if forced to continue her pregnancy.
At the same time, in Bashir Khan v. State of Punjab, and Kamla Devi v. State of Haryana, the Punjab and Haryana High Court ruled that under the MTP framework, there is no need to obtain permission from any authority for terminating a pregnancy under 20 weeks, aside from the medical opinion of the requisite number of RMPs and consent of the concerned woman, or guardian in case of a minor.
Some Related Terms
Termination of pregnancy is defined as a procedure undertaken to terminate a pregnancy by using medical or surgical methods.
- Specific cases The termination of pregnancies up to 24 weeks would apply to specific categories of women listed under Rule 3B of the MTP Rules 2021, notified under the MTP (Amendment) Act 2021. They include survivors of rape, incest, minors, women experiencing a change of marital status (widowhood or divorce), women with disabilities, women with foetal anomaly, and those living in emergency, disaster or humanitarian crises.
- Unwanted pregnancy It happens due to failure of any contraceptive device or method used by a married woman or her husband to limit the number of children. Since such an unwanted pregnancy may constitute a grave injury to the mental health of the pregnant woman, termination of pregnancy is allowed. The MTP (Amendment) Act 2021 has also replaced the phrase ‘married woman or her husband’ with ‘woman or her partner’.
- Constitution of medical board The MTP Amendment Act states that the upper limit of termination of pregnancy would not apply in cases where foetus is diagnosed with severe abnormalities. These abnormalities would be diagnosed by a medical board set up by every state government, which would consist of (i) a gynaecologist, (ii) a paediatrician, (iii) a radiologist or sonologist, and (iv) any other number of members, as may be notified by the state government.
- Consent of the pregnant woman Obtaining the free consent of the woman undergoing MTP has been of paramount importance in all the versions of the MTP Act. Without the consent of the pregnant woman, MTP is not allowed to be done. However, under special cases such as pregnancy of a minor who is suffering from mental illness or some other debilitating problem, the consent of the guardian is taken in writing.
Conclusion
The MTP Act has been a progressive legislation. It has given women in India a facade of reproductive rights and autonomy as cited by the SC through its landmark judgment.
It is worth noting that the reproductive rights of women in India were upheld by the MTP Act 2021 and the verdict of the Supreme Court came at a time when some countries in the world are still planning to revoke certain grants allowed in their MTP laws. This liberal and progressive move of the Indian government is in sharp contrast to the strict and restrictive legislations of many other countries, where women are prohibited from accessing such services.
However, it must also be noted that neither the Amendment Act nor the SC judgment has facilitated the traumatising process of seeking abortion services. Also, there is a need to extend the ambit of the MTP Act and include trans people, who face great hurdles in accessing sexual and reproductive health services.
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