Supreme Court’s landmark Judgement addressing Women bodily Rights for Abortion (Specials)
Polity & Governance
7th Oct, 2022
In a Judgment, the Supreme Court recently put decision on abortion rights for all adult women in India to have the right to seek a safe abortion through a medical expert till up to 24 weeks of pregnancy.
- The Medical Termination of Pregnancy (MTP) Act, 1971 came into force on 1st of April 1972 and applied to all of India except the state of Jammu and Kashmir.
- Also, Section 312 of the Indian Penal Code, 1860, criminalises 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.
- This means that the woman herself, or anyone else including a medical practitioner, could be prosecuted for an abortion.
Medical Termination of Pregnancy (MTP) Act, 1971 act allowed pregnancy termination by a medical practitioner in two stages:
- A single doctor's opinion was necessary for abortions up to 12 weeks after conception.
- For pregnancies between 12 to 20 weeks old, the opinion of two doctors was required 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;
- If 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.
Key highlights of the Judgement:
There are five key aspects of this judgment that need to be shared:
- Acknowledging the context of criminality: IPC criminalises accessing and providing an abortion except where there is an immediate necessity to save the life of the pregnant woman, and that the MTP Act is an exception to this criminal offence.
- Removal of ‘compulsory’ marital status: The judgment basically holds that what is accessible and available for a married pregnant woman should be accessible and available to any pregnant woman, and that a classification based on marital status is fallacious and illegal.
- Inclusive of the concept of Marital Rape: An acknowledgement has put that a pregnancy can be sought to be terminated on the ground of it being as a result of rape by the husband of the pregnant woman must be recognised.
- Confidentiality: This judgment clarifies that while the need to report mandatorily remains, the identity of the pregnant personneed not be disclosed in the cases of consensual sexual activity and where the minor and/or her guardian request the medical service provider to maintain confidentiality.
- Relief to Medical Practitioners:It recognises the extra-legal requirements that medical practitioners insist upon before providing MTP services, only to safeguard themselves due to the context of criminality and the present law is non-inclusive and the terminology used is
MTP Amendment Act
- In 2021, Parliament amended the law to allow for abortions based on the advice of one doctor for pregnancies up to 20 weeks.
- The modified law needs the opinion of two doctors for pregnancies between 20 and 24 weeks.
- Further, for pregnancies between 20 and 24 weeks, rules specified seven categories of women who would be eligible for seeking termination under Section 3B of rules prescribed under the MTP Act;
- Survivors of sexual assault or rape or incest,
- Change of marital status during the on-going 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 a 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 disasters or emergencies may be declared by the Government.
What was the need of amendment in the existing law?
- Access to health services and the right to make a decision about managing the pregnancy or obtaining an abortion has a lot to do with individual rights. This conservative approach of the state has the potential of causing irreversible damage to female health and it can also be seen as an infringement of women’s rights.
- For Rape survivors and issues like Marital Rape is to be addressed which is many a times resulted in a situation of survivors getting pregnant unwantedly.
What are women’s reproductive rights?
Based on the multiple definitions of reproductive rights, it can be said that they include some or all of the following rights:
- Right to safe and legal abortion.
- Right to control one’s reproductive functions.
- Right to access in order to make reproductive choices free of coercion, discrimination and violence.
- Right to access education about contraception and sexually transmitted diseases and freedom from coerced sterilization and contraception.
- Right to protection from gender-based practices such as female genital cutting and male genital mutilation.
- Addressing the ‘actual’ concerns: This was a judgment keeping the pregnant person at the centre of it despite the law being provider-centric, and to read a judgment that beautifully encapsulates all the concerns that exist about the legal regime on abortion in India.
- Breaking the stereotype:The judgment basically reiterates that one cannot make a distinction between women who is pregnant because of rape only on the grounds of her marital status.
Arguments in favour of Abortion
Arguments Against abortion
- A female is considered a moral person that is entitled to rights, including the right to life. So, abortion is deemed acceptable as the foetus is not a person. A list of criteria of personhood is identified, which includes consciousness, reasoning, activity, communication and self-awareness. A foetus undeniably is incapable of fulfilling these criteria.
- The mother, who is a person, has a right to life and it supersedes the rights of the foetus to choose whether or not it remains connected to her body.
- Also, pregnancy is assumed to be a foreseeable consequence of heterosexual intercourse, that too when there is no intention to ‘have a baby’. So, denying her the right to abort the child when she was not planning for it is unwarranted.
- Abortion in self-defence: It may be ethical for a mother to have an abortion to defend herself from the danger to her mental or physical health than continuing with the pregnancy would cause. Abortion is considered in relation to the ‘Doctrine of double effect’.
- ‘Future like ours’ argument: Abortion is wrong because it deprives the foetus of a potential 'future like ours'.
- It suggests that death is a bad thing because it deprives people of all the experiences, enjoyments, opportunities that would make up their future personal life.
- Moral conduct: Killing an innocent human being is a moral wrong. Those who are against abortions believe that human life begins at conception, and by drawing the same analogy, the foetus is an innocent human being.
- So, killing the foetus is wrong and abortion is always wrong.
The decision of whether or not to bear a child is central to a woman’s life, to her well-being and dignity. She ought to be the one deciding it for herself. When Government superintends that decision for her, she is being treated as less than a fully adult human accountable for her own choices. We need to bestow much greater support to women who may want to conceive and raise their children, but opting out of it for financial, psychological, health, or relationship reasons Criminalising abortion does not stop abortions, it just makes abortion more unsafe.