On Thursday, 29 September, Supreme Court judges Justice DY Chandrachud, Justice AS Bopanna, and Justice JB Pardiwala delivered the landmark judgment that all women — irrespective of marital status — are entitled to seek abortion within 24 weeks of pregnancy.
The court interpreted the Medical Termination of Pregnancy(MTP) Act of 2021, pointing out that the distinction between married and unmarried women could not be sustained.
In a case that came to the Division Bench of the Delhi High Court in July 2022, an unmarried woman from Manipur aged 25, who had become pregnant due to a consensual relationship, wished to terminate her pregnancy as her partner had refused to marry her at the last stage.
She stated that she did not want to carry the child to term since she was wary of the “social stigma and harassment” about unmarried single parents, especially women.
Moreover, she said, in the absence of a source of livelihood, she was not mentally prepared to “raise and nurture the child as an unmarried mother”.
She also said that the continuation of the unwanted pregnancy would involve a risk of grave and immense injury to her mental health.
She sought permission to terminate her pregnancy under Section 3(2)(b) of the Medical Termination of Pregnancy Act of 1971 and Section 3B(c) of the MPT Act of 2021.
The section states:
Where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that –
–there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.
According to the Delhi High Court, this provision could only be availed by the categories of women prescribed in the Medical Termination of Pregnancy Rules of 2003: rape survivors, minors, women with physical disabilities or mental retardation, women who became widows or divorcees during pregnancy, and women in disasters or emergencies.
The court rejected the appeal by the woman stating on 15 July: “The high court observed that Section 3(2)(b) of the MTP Act was inapplicable to the facts of the present case. Since the appellant, being an unmarried woman whose pregnancy arose out of a consensual relationship, was not covered by any of the sub-clauses of Rule 3B of the MTP Rules.”
In an interim order, the Supreme Court on 21 July modified the order of the high court and permitted the woman to terminate her pregnancy.
As the case involved a substantial question of law, the Supreme Court took it up for further consideration.
SC interpretation of MTP Act
In its judgement on 29 September, the Supreme Court observed that despite the enactment of the MTP Act, several hurdles continued to prevent full access to safe and legal abortions, pushing women to avail clandestine, unsafe abortions.
These barriers include “insufficient infrastructural facilities, a lack of awareness, social stigma, and failure to ensure confidential care”, the court observed.
The Supreme Court also said that unmarried women face particular barriers in some situations due to gender stereotypes about women’s sexual autonomy outside marriage.
“These barriers are a serious impediment and deter single women from seeking safe and legal abortions. Such barriers may contribute to a delay in accessing abortion services or a complete denial of such services, consequently negating women’s right to reproductive autonomy,” observed the apex court.
Beyond Section 3B of MTP Act
The Supreme Court observed that by framing Section 3B, the legislature intended to clear some confusion. The common thread running through each category of women mentioned in Section 3B was that the woman was in a unique and often difficult circumstance concerning her physical, mental, social, or financial state.
The Supreme Court also looked at the consequences of a woman losing her job and being no longer financially secure, or if domestic violence was perpetrated against her.
“It gives such women latitude in seeking out the termination of an unwelcome pregnancy by extending the gestational period up to which the termination is legally permissible,” observed the apex court.
Further, the Supreme Court said that a narrow interpretation of Section 3B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 (Right to equality) of the Constitution.
It observed that prohibiting unmarried or single pregnant women (who are between 20 and 24 weeks of pregnancy) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14.
“It would perpetuate the stereotype and socially held notion that only married women indulge in sexual intercourse, and that consequently, the benefits in law ought to extend only to them. This artificial distinction between married and single women is not constitutionally sustainable. The benefits in law extend equally to both single and married women,” observed the court.
The Supreme Court further said that the rights to reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice — on whether to bear a child — on a similar footing as a married woman.
Consent for abortion
The court said that the consent for abortion at the end should remain with the woman.
The Supreme Court observed that it was a common yet lamentable practice for registered medical practitioners (RMPs) to insist on compliance with extra-legal conditions such as consent from the “woman’s family, documentary proofs, or judicial authorisation”.
“If the woman fails to comply with these additional requirements, RMPs frequently decline to provide their services in conducting legal abortions,” observed the Supreme Court.
“It is only the woman’s consent (or her guardian’s consent, if she is a minor or mentally ill) which is material. RMPs must refrain from imposing extra-legal conditions on women seeking to terminate their pregnancy following the law,” ordered the court.
The Supreme Court also said that the right to dignity entailed recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate a pregnancy.
“The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical wellbeing also injures the dignity of women,” said the Supreme Court.
The court also made it easier for minors to get an abortion.
The Protection of Children from Sexual Offences (POCSO) Act of 2012 criminalises sexual activity by those below the age of 18.
Section 19(1) of the POCSO Act requires that any person, including a child, who is aware of an offence under the act is mandatorily required to provide information to the Special Juvenile Police Unit or the local police. Failure to report, as mandated by Section 19, is a punishable offence under Section 21 of the POCSO Act.
The Supreme Court observed that when a minor approaches an RMP for a medical termination of pregnancy arising out of consensual sexual activity, the RMP is obliged under Section 19(1) of the POCSO Act to provide information about the offence committed to the concerned authorities.
“An adolescent and her guardian may be wary of the mandatory reporting requirement as they may not want to entangle themselves in the legal process. Minors and their guardians are likely faced with two options: approach an RMP and possibly be involved in criminal proceedings under the POCSO Act, or approach an unqualified doctor for medical termination of the pregnancy,” observed the Supreme Court.
The court ordered that the RMP, only on request of the minor and the guardian of the minor, need not disclose the identity and other personal details under Section 19(1) of the POCSO Act.
MPT Act states that if pregnancy is alleged by the pregnant woman to have been caused by rape, it causes “a grave injury to the mental health of the pregnant woman”, making it mandatory for the medical practitioner to terminate a pregnancy.
“The meaning of the words ‘sexual assault’ or ‘rape’ in Rule 3B(a) includes a husband’s act of sexual assault or rape committed on his wife,” said the Supreme Court.
However, it added that the meaning of rape must therefore be understood to include marital rape, solely for the MTP Act and any rules and regulations framed thereunder, and not the statutory and other laws.
The case of marital rape under Section 376 of IPC is under consideration at the Supreme Court.
The court also said that there should not be any legal proceeding to seek abortion in marital rape cases.
“In order to avail the benefit of Rule 3B(a), the woman need not necessarily seek recourse to formal legal proceedings to prove the factum of sexual assault, rape, or incest. There is no requirement that an FIR must be registered or the allegation of rape must be proved in a court of law or some other forum before it can be considered true for the purposes of the MTP Act,” observed the Supreme Court.
Recognising the transgender community
The Supreme Court also paved the way for the transgender community to access abortion.
It said the abortion law was just not for cis-gender women.
“It must be mentioned that we use the term ‘woman’ in this judgment as including persons other than cis-gender women who may require access to safe medical termination of their pregnancies,” said Supreme Court.