The Supreme Court (SC) of India pronounced an important verdict to further strengthen the reproductive rights of women. A bench consisting of Justices A.S. Bopanna and J.B. Pardiwala, and headed by Justice D.Y. Chandrachud held on September 29, 2022, that unmarried or single women could not be excluded from seeking safe abortion of pregnancies up to 24 weeks, under the Medical Termination of Pregnancy (MTP) Act 1971 and its rules of 2003. The bench stated that it is unconstitutional to distinguish between married and unmarried women for allowing termination of pregnancy on certain exceptional grounds, when the foetus is between 20 and 24 weeks. This ruling was given on World Safe Abortion Day, emphasising on female autonomy in accessing abortion. The decision was taken on the basis on an interim order in July 2022 by which the court had allowed a 25-year-old unmarried woman to terminate her pregnancy arising out of a consensual relationship. Her plea for termination of her pregnancy in the 24th week had been turned down by a division bench of the Delhi High Court because the MTP Rules 2003 did not extend to unmarried women in consensual relationships.
The three-judge bench framed interpretation of Rule 3B of the MTP Rules 2003. According to Rule 3B, only some categories of women were allowed to seek termination of pregnancy between 20 and 24 weeks, under certain extraordinary circumstances.
While discussing the provisions of the MTP Act, the court clarified that the term ‘woman’ in the Act does not only include ‘cis-gendered women’ but also all those who identify as women. (Cisgender means a person whose gender and identity correspond with their birth sex.)
Some Highlights of the Verdict
Some of the highlights of the SC verdict are as follows:
The judgment expanded the ambit of the term ‘reproductive rights’, which include the right to access education and information about contraception and sexual health; the right to choose whether or when to have children; the right to reproductive health care, etc.
Legal recognition of marital rape The SC held that pregnancy of married woman, due to forcible sex by her husband, would also be treated as ‘rape’, under MTP Act 2021. Such pregnant woman could also go for an abortion without the consent of anyone. Married women may be a part of the class of survivors of sexual assault or rape. There is no need to register an FIR for rape for abortion to be allowed even if a married woman has claimed rape by husband.
The SC has expanded on Rule 3B(a)— ‘survivors of sexual assault or rape or incest’—and included married women in its ambit though inclusion of married women under the MTP Act does not have the effect of striking down the marital rape Exception 2 to Section 375 under the Indian Penal Code. (Challenge to the Exception is pending consideration before a different bench of the SC.) It further stated that it is not inconceivable that married women become pregnant as a result of their husbands having “raped” them.
Protecting the privacy of the minor victim The SC directed that the identity of a minor, who has become pregnant after a ‘consensual’ sex, shall not be disclosed in criminal proceedings, under the Prevention of Children from Sexual Offences (POCSO) Act 2012. Doctors are obligated to inform police under the POCSO Act when a minor approaches for abortion as a minor could not give a valid sexual consent.
Compliance with the Indian Constitution The bench said that prohibiting single or unmarried pregnant women with pregnancy between 20 and 24 weeks from accessing abortion, while allowing married women to access the care with the same term of pregnancy, was violative of the right to equality before law and equal protection according to Article 14 of the Indian Constitution.
Article 21 of the Constitution also provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Therefore, unmarried woman also has the right of choice as to whether or not to bear a child on similar footing, as that of a married woman.
Interpretation of SC on Rule 3B(c) The court stated the whole Rule 3B(c) cannot be read in isolation but has to be read together with other sub-clauses under 3B. When other sub-clauses do not distinguish between married or unmarried women, for example, survivors of sexual assault, minors, etc., only 3B(c) cannot exclude unmarried women.
The bench said, Rule 3B(c) is based on the broad recognition of the fact that a change in the marital status of a woman often leads to a change in her material circumstances. [A change in material circumstance, during the ongoing pregnancy, may arise when a married woman divorces her husband or when he dies, as recognised by the examples provided in parenthesis in Rule 3B(c).] The fact that widowhood and divorce are mentioned in brackets at the tail end of Rule 3B(c) does not hinder our interpretation of the rule because they are illustrative.
Directions of SC to State The SC says that the term ‘woman’ also includes persons other than cisgender women, who may require access to safe medical termination of pregnancy’. The SC ruled that the State must ensure that
- information regarding reproduction and safe sexual practices is disseminated to all parts of the population.
- all segments of society are able to access contraceptives to avoid unintended pregnancies and plan their families.
- medical facilities and registered medical practitioners (RMPs) must be present in each district and must be affordable to all.
- RMPs to treat all patients equally and sensitively, and l treatment must not be denied on the basis of one’s caste or other social and economic factors.
Amended Medical Termination of Pregnancy Act 2021
The amended MTP 2021 Act allows termination of pregnancy by an RMP in two stages. In case the pregnancy is up to 20 weeks, termination would be allowed under the opinion of one RMP. If the pregnancy is between 20 and 24 weeks, there are certain rules attached to the law which prescribe certain criteria in terms of who would be eligible to avail termination. The rules also require the opinion of two RMPs in that case.
Termination of pregnancy would be allowed within 20 weeks if:
- there is any risk involved to the life of the pregnant woman or if the continuation of pregnancy would lead to a grave injury to her physical or mental health. (or)
- there is a substantial risk when the child was born and it would suffer from any serious physical or mental abnormality.
As per the explanation to the provision, termination within 20 weeks would be allowed if the woman has become pregnant due to the failure of any contraceptive device or method used by the woman or her partner in order to limit the number of children or prevent pregnancy. Such pregnancy may cause anguish which may be presumed to constitute a grave injury to the mental health of the pregnant woman.
The phrase “any woman or her partner” was also introduced in the 2021 Act, which replaced “married woman or her husband”. Thus, the legislature clarified the scope of Section 3 and brought pregnancies occurring outside wedlock within the protective umbrella of the law.
However, for pregnancy between 20 and 24 weeks, Section 3B of the 2003 Rules lists seven categories of women:
- survivors of sexual assault, rape, or incest;
- minors;
- change of marital status during the ongoing pregnancy (widowhood and divorce);
- women with physical disabilities (major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016);
- mentally ill women including mental retardation;
- the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and
- women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.
The 2021 MTP amendment addresses the ‘continuing crisis’ of unsafe abortions. About 8 women die every day in India due to unsafe abortion. There is a widespread misconception that abortion of unmarried women is illegal in India. So, a woman or her partner might resort to carrying out abortion by unlicensed medical practitioner.
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