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SC: Can’t deny Abortion Rights to an Unmarried Woman

  • Category
    Polity & Governance
  • Published
    29th Jul, 2022

Context

Supreme Court has allowed an unmarried woman to seek termination of Pregnancy with the remarks that “Abortion Can't Be Denied Because Woman Is Unmarried'.

About

About the Issue

  • The petitioner had told the court that the pregnancy was a result of a consensual relationship and that she wanted to terminate the pregnancy because her partner had refused to marry her.
  • She also told the court that she feared stigmatization as a single, unmarried woman.
  • The Delhi HC bench said it cannot allow what the law prohibits – access to termination of pregnancy between 20-24 weeks for an unmarried woman, just because her relationship status has changed.
  • The two-judge bench of the Delhi High Court has also observed that it would “amount to killing the child.”

Supreme Court’s View on the matter

  • The Petitioner should not be denied the benefit on the ground that she is an unmarried woman".
  • The Parliamentary intent is not to confine the benefits to situations arising out of matrimonial relationships.
    • It noted that a widow or a divorced woman is allowed to terminate pregnancy in the term of 20-24 weeks.

      A bench led by Justices DY Chandrachud observed that the Delhi High Court took an "unduly restrictive" view of the provisions of the Medical Termination of Pregnancy Rules while declining the woman interim relief.
  • As a relief, the Supreme Court has passed an ad-interim order to allow the unmarried woman to abort her pregnancy of 24 weeks sarising out of a live-in relationship.

What is India’s law on abortion?

  • Section 312 of the Indian Penal Code, 1860, criminalizes voluntarily “causing miscarriage” even when the miscarriage is with the pregnant woman’s consent, except when the miscarriage is caused to save the woman’s life.
  • In 1971, The Medical Termination of Pregnancy Act (MTP Act) was introduced to “liberalize” access to abortion since the restrictive criminal provision was leading to women using unsafe and dangerous methods for termination of pregnancy.

Conservative Approach of the legislators:Parliamentary debates on the MTP Act reveal that legislators were concerned that a “liberal” abortion law would promote sexual promiscuity amongst women. Addressing this concern, the government, through its ministers, assured Parliament that “by far the greatest number of women who seek abortion are married.

  • The MTP Act allowed termination of pregnancy by a medical practitioner in two stages.
    • For termination of pregnancy up to 12 weeks from conception, the opinion of one doctor was required.
    • For pregnancies between 12 and 20 weeks old, the opinion of two doctors was required.
  • Later on, due to the expansion of the access to safe and legal abortion services on humanitarian and social grounds to ensure universal access to comprehensive care, certain amendments were introduced.
  • In 2021, Parliament amended the law and allowed for termination under the opinion of one doctor for pregnancies up to 20 weeks. For pregnancies between 20 and 24 weeks, the amended law requires the opinion of two doctors.

What does the MTP Act say in such a matter after the 2021 amendment?

  • After the introduction of an amendment in 2021, the Medical Termination of Pregnancy Act uses the word "partner" instead of "husband". This shows the legislative intent to cover "unmarried women" under the Act.
  • "The use of words "woman or her partner" shows an intention to cover unmarried woman which is in consonance with Article 14 of the Constitution."
  • “Rule 3B” of Rules annexed to the MTP Act, which was amended in 2021, specifies seven categories of women who are eligible for termination between 20-24 weeks.
  1. survivors of sexual assault or rape or incest
  2. minors
  3. those who have a change of marital status during the ongoing pregnancy (widowhood and divorce)
  4. women with physical disabilities
  5. mentally ill women
  6. women carrying a malformed foetus that has a substantial risk of being incompatible with life
  7. and women with pregnancy in humanitarian settings or disasters or emergencies as may be declared by the government

Shortcomings of the Legislation

  • The law recognizes the change in circumstances of the relationship status between a pregnant woman and her spouse, for example, the case of divorce and widowhood.
  • It does not envisage the situation for unmarried women. It was under these premises or gaps in the law that the petitioner before the Supreme Court falls in and the ‘unduly restrictive views’ on Rule 3B under the MTP Act, of Delhi High Court.

Medical Termination of Pregnancy (MTP) Amendment Act, 2021:

  • The Medical Termination of Pregnancy Act, 1971 (“MTP Act”) was passed due to the progress made in the field of medical science with respect to safer abortions. It provides universal access to reproductive health services.
  • The new Medical Termination of Pregnancy (Amendment) Act 2021 expands the access to safe and legal abortion services on therapeutic, eugenic, humanitarian, and social grounds to ensure universal access to comprehensive care.
  • India amended the MTP Act 1971 to further empower women by providing comprehensive abortion care to all.

What are the guidelines for terminating pregnancies falling in the 20–24-week category?

  • For termination of pregnancies between 20-24 weeks old, the opinion of two doctors is required.
  • They would have to determine “if the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her 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”, before agreeing to terminate the woman’s pregnancy.

Conclusion

Any pregnancy occurring as a result of a failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant women.

In 1971, when The MTP Act was enacted, it was essentially framed with a moralistic lens that put married women in focus. The 2021 amendment has not much changed that view. Allowing a woman to suffer an unwanted pregnancy would be contrary to the intent of the law enacted by Parliament.

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