30 Sep Right to reproductive choice: Supreme Court extends right to safe and legal abortion to single, unmarried women

Supreme Court Ruling on Abortion

The topic is based on the Right to reproductive choice: Supreme Court extends the right to safe and legal abortion to single, unmarried women. The article talks about how the Supreme Court Ruling on Abortion impacts Indian Polity and Governance- Constitution.   

CONTEXT 

Supreme Court has extended the right to safe and legal abortion up to 24 weeks to unmarried single women. Holding the distinction created between married and unmarried women as artificial and constitutionally unsustainable, it allowed termination of pregnancy between 20-24 weeks on certain exceptional grounds. The court held it is the right of every woman to make reproductive choices without undue interference from the state. Court also included victims of marital rape under the MTP act.

Pic: Supreme Court Ruling on Abortion

THE LAW ON ABORTION

The law on abortion in India is governed by the Medical Termination of Pregnancy (MTP) Act, of 1971 which was amended in 2021 to incorporate certain changes. The act provides for the termination of certain pregnancies by registered medical practitioners. The various provisions governing different time periods in the pregnancy are given below:

1. Pregnancy up to 20 weeks: Approval of one registered medical practitioner is mandatory. Further, he should be of the opinion that the continuation of pregnancy has the risk to life or injury to the health of the pregnant woman or the child if born would suffer from abnormalities. The 2021 amendment also allows termination in case of failure of contraceptive method or device. The amendment gave this provision for “any woman” instead of “married women” which was the earlier rule in the 1971 act. 
2. Pregnancy more than 20 weeks but less than 24 weeks: Approval of 2 two registered medical practitioners necessary and they should be of the opinion that the continuation of pregnancy has a risk to the life or injury to the health of the pregnant woman or the child if born would suffer from abnormalities. It is allowed for certain specified cases given in the rules like for survivors of rape, incest, or sexual assault, minors, those who became widows or divorced during pregnancy, those suffering from mental or physical disability, risk of a child suffering from abnormalities or pregnancy in humanitarian or emergency settings.
3. Pregnancy of more than 24 weeks: A four-member medical board constituted by the State Government will look in such cases. Termination beyond 24 weeks is allowed only on the grounds of fetal abnormalities

THE COURT RULING 

• The landmark ruling on reproductive rights comes in the case of X v. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi held that unmarried women are also entitled to seek abortion of pregnancy of period more than 20 weeks but less than 24 weeks arising out of the consensual relationship.
• The court stated that the distinction between married and single and married women is constitutionally unsustainable. Unmarried women who conceive out of a live-in relationship are entitled to relief under the MTP act. 
• The court also pointed out that the 2021 amendment to the MTP act had removed the distinction between married and unmarried women. 
• The artificial distinction between married and unmarried women violates Article 14(Right to equality) and the right to reproductive autonomy.
• The court noted that the law must be interpreted keeping in mind the changing social mores
• The court also made a big change by ruling that the meaning of “rape” will include “marital rape” for the purpose of the MTP Act. This means that pregnancy caused by marital rape is also eligible for termination. This is only for the purpose of the MTP act and not the Indian Penal Code.
• The court recognized a husband’s act of sexual assault or forced intercourse committed on his wife as ‘rape’ but the court said that understanding ‘rape’ under the MTP Act would not have the effect of striking down Exception 2 to Section 375 which excludes marital rape from the ambit of the offense of rape under Section 375.

SIGNIFICANCE OF THE RULING

• Where developed countries like the USA have recently overturned the constitutional validity of the right to abortion given in the landmark case of Roe v Wade, the Supreme Court of India has given a progressive direction to abortion laws and reproductive rights in India.
• As the apex court rightly pointed out, the right to reproductive autonomy is closely linked with the right to bodily autonomy. Hence, the decision to carry the pregnancy to its full term or terminate it ultimately vests in the right to bodily autonomy of the pregnant woman.
• Forcing a woman to carry an unwanted pregnancy can result in negative consequences on the physical and mental health of the woman, often hampering her education, career, and life choices, taking away her financial independence and bodily integrity.
• The decision to give birth is based on various factors like social, situational, and financial circumstances. Hence it should be left to be decided by the woman.

 CHALLENGES

• The decision to allow termination or not will depend on case to case basis and on the recommendation of medical practitioners. So, the autonomy of women, in reality, is not unlimited
• The law still does not permit abortion at will, this is known to push women to access illicit abortions under unsafe conditions.
• Though the court took a remarkable step in declaring marital rape as rape for the purpose of the MTP act, recognizing the violence and lack of consent in this issue, marital rape is still not considered an offense under Section 375 of the IPC

WAY AHEAD

We should strive to provide complete bodily autonomy, inclusivity, and reproductive equity to women. The right to abortion is closely linked with the Right to life under Article 21. Every woman should have access to safe and legal abortions with integrity.

SOURCES

• The Indian Express
• The Hindu
• The Daily Guardian

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saumya khedwal