Abortion rights of unmarried women

The Supreme Court of India recently granted an unmarried woman the right to terminate a 20–24-week unwanted pregnancy if medical experts certified its safety. By doing this, SC filled a legislative void in the Medical Termination of Pregnancy Act and related Rules.

Background –

• Recently, a 25-year-old woman sought the Delhi High Court’s permission for termination of a pregnancy of 23 weeks and 5 days.
• The woman told the court that she wanted to terminate the pregnancy because her partner had refused to marry her, as she feared stigmatisation as a single, unmarried woman.
• The woman also challenged Rule 3B of the Medical Termination of Pregnancy Rules.
  • This rule allows only some categories of women to seek termination of pregnancy between 20 and 24 weeks.
• The Delhi HC refused to allow the termination of the pregnancy and on the challenge made to the law, it issued notice to the central government.
• The woman moved SC against the Delhi HC judgement, seeking an abortion.
• The case has raised serious concerns about India’s reproductive rights framework and the recognition of female autonomy and agency.

What did the Supreme Court say?

• According to the Supreme Court, denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom.
• A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Indian Constitution.
• The Supreme Court nailed the gap in the MTP Act and relevant Rules, saying that while the Act goes beyond traditional marriage-based relationships, Rule 3B of the MTP Rules does not contemplate a situation involving unmarried women.
• There is no reason to deny unmarried women the right to terminate a pregnancy medically when other categories of women have the same option.
• Excluding unmarried and single women from the statute’s scope contradicts the legislation’s intent.
  • By amending the MTP Act in 2021, Parliament intended to include unmarried women and single women within the Act’s scope.
  • This was evident by the replacement of the word “husband” with “partner” in Section 3(2) of the Act.
• This means that the parliamentary intent is clearly not to limit the MTP Act’s beneficial provisions to situations involving a matrimonial relationship.

Abortion laws  in India –

1. The Indian Penal Code, 1860 –

• • It criminalises “causing miscarriage” voluntarily, even if the miscarriage is with the pregnant woman’s consent, unless the miscarriage is caused to save the woman’s life.
  • This means that the woman (or anyone else), a medical professional, could be charged with having an abortion.

2. The Medical Termination of Pregnancy Act (MTP Act), 1971 –

• • It was introduced to liberalise access to abortion since the restrictive criminal provision was leading to women using unsafe and dangerous methods for termination of pregnancy.
  • The 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.
    • Before agreeing to terminate the woman’s pregnancy in the second case, the doctors must determine —
      • if the continuation of the pregnancy would involve a risk to the pregnant woman’s life or
      • if there is a substantial risk that the child would suffer from such physical or mental abnormalities.

3. The Medical Termination of Pregnancy (MTP) Amendment Act, 2021 –

• • The law allowed for a 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.
    • The government has issued the new Medical Termination of Pregnancy (Amendment) Rules, 2021.
    • It defined the situations that define eligibility criteria for termination of pregnancy up to twenty-four weeks, as opposed to the previous upper limit of 20 weeks.
  • For the second category, the Rules (Section 3B) specified seven categories of women who would be eligible for seeking termination of pregnancy, for a period of up to 24 weeks. These include –
    • Survivors of sexual assault or 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 be seriously handicapped; and
    • Women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.
  • While the law recognises changes in a pregnant woman’s relationship status with her spouse (in the case of divorce and widowhood), it does not address the situation for unmarried women.