In a landmark decision, which coincided with the International Safe Abortion Day, the Supreme Court of India (SC) granted unmarried and single women with pregnancies ranging from 20 to 24 weeks access to safe and legal abortion care on par with married women.
The SC loosened the stranglehold of a 51-year-old abortion law – the Medical Termination of Pregnancy (MTP) Act of 1971 and its Rules of 2003, which prohibit unmarried women between 20 and 24 weeks pregnant from aborting with the assistance of registered medical practitioners.
What did the Court observe?
- By linking reproductive rights of women to their bodily autonomy, the judgement expanded the ambit of the term “reproductive rights”.
- Reproductive rights of women included a constellation of rights, entitlements and freedoms for women. It was not restricted to having or not having children.
- Reproductive rights include the right to —
- Access education and information about contraception and sexual health.
- Decide whether or what type of contraceptives to use.
- Choose whether or when to have children, the number of children.
- The right to choose safe and legal abortion.
- Women must have the autonomy to make decisions on these rights, free from coercion or violence.
- The rights of reproductive autonomy, dignity and privacy under Article 21 of the Indian Constitution gives an unmarried woman the right of choice as to whether or not to bear a child on a similar footing as that of a married woman.
- The court ruled that prohibiting single or unmarried pregnant women with pregnancies between 20 and 24 weeks from accessing abortion care while allowing the same to married women was a violation of the right to equality before the law and equal protection (Article 14).
- According to the court, a single pregnant woman may have experienced the same “change in material circumstances” as a married pregnant woman.
- She could have been abandoned, unemployed, or a victim of violence during her pregnancy.
- Her life could be in danger due to foetal abnormalities.
- She may have been a victim of sexual exploitation leading to the pregnancy.
- There would be cases in which she could have got pregnant due to contraceptive failure, leaving her in a state of mental anguish.
- The beneficiaries of a statute should not be determined by the law based on narrow patriarchal principles about what constitutes permissible sex. This would result in unfair classifications and therefore a forward-looking interpretation of the law is required.
- The POCSO Act requires a registered medical practitioner to notify the police when a minor approach him or her for an abortion, prompting many minors and their guardians to have abortions performed by unqualified doctors.
- The court stated that the provisions of the MTP and POCSO laws must be harmonised in order for minors to approach registered doctors for abortion without fear of being exposed.
- The SC ruled that registered medical doctors are exempt from disclosing to police the identities of minors who have come in for abortions.
- It would protect the minor’s right to privacy and reproductive autonomy under Article 21 of the Indian Constitution.
About the MTP Act of 1971 –
- It was introduced to liberalise access to abortion since the restrictive criminal provision (in the IPC) 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.
- 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 the child would suffer physical or mental abnormalities.
About the MTP Amendment Act –
- 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, which define 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(I.e. 20- 24 weeks), the amended act and the MTP (Amendment) Rules, 2021, specified seven categories (Survivors of sexual assault or rape or incest; Minors; etc) of women who would be eligible for seeking termination of pregnancy, for a period of up to 24 weeks.
- 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 between 20 – 24 weeks pregnant.
Why is the above law not applicable to unmarried women?
- The MTP is not a law focused on women and their reproductive rights, but rather a law that draws red lines that medical practitioners cannot cross while performing abortions.
- When the MTP Act was passed in 1971, it was framed primarily through a moralistic lens that emphasised married women.
- The 2021 amendment has not changed that opinion, as the majority of these mothers are married women who have no reason to conceal their pregnancy.
- Even though, Indian law is widely regarded as progressive, especially in comparison to many other countries (like US), where abortion restrictions are severe – both historically and currently.