Abstract

On 29th September 2022, the Supreme Court of India, comprising a three judges bench quashed the 51-year-old abortion law and allowed an unmarried woman to go ahead with medical termination who was around 22 weeks pregnant. The court expanded the interpretation of the section dealing with the abortion law in India which only provided abortion rights to certain categories of women till 20-24 weeks of pregnancy.

The judgment held that law cannot be discriminatory and hence it shall not be different for married and unmarried women. The court, in addition also granted the right of medical termination to minor girls and members of the transgender community.

The Medical Termination of Pregnancy Act (MTP) 1971 and Rules of 2003 prohibited unmarried women, pregnant between 20-24 weeks to go ahead with the procedure even under the guidance and supervision of registered medical practitioners.

Introduction

On 15th July, the Delhi High Court denied permission for abortion to a 25-year-old unmarried woman who was around 22 weeks pregnant from a consensual relationship, because the woman was unmarried and did not fall under the criteria of the present laws. The Medical Termination of Pregnancy Act (MTP), 1971, and its rules were amended in 2021, increasing the maximum permissible time for abortion from 20 weeks of pregnancy to 24 weeks. The amended law stated

that the pregnant woman could be allowed medical termination up to 20 weeks only after the opinion and approval of a registered medical practitioner are received to avoid any risk to the life of the woman or the child.

In case the pregnancy was between 20-24 weeks, then the consent of two registered medical practitioners was required. Unfortunately, the above provisions could only be availed by the women prescribed in the Medical Termination of Pregnancy Rules, 2003, which excluded rape survivors, minors, women with physical or mental disabilities, widows, divorcees, or women in disasters or emergencies.

India’s Abortion Law

Until 1960, abortion was illegal in India and was punishable under Section 312 of the Indian Penal Code, 1860, wherein a woman could face imprisonment for up to 3 years and or a fine or both. In the mid-1960s the government set up by the Shantilal Shah Committee, headed by Dr. Shantilal Shah, decided to look into the need for abortion law in India, and based on a report by Shantilal Shah Committee, a medical termination bill was introduced in Lok Sabha and Rajya Sabha which was then passed by the Parliament in August 1971.

On 1st April 1972, The Medical Termination of Pregnancy (MTP) Act, 1971 came into force and Section 312 of the Indian Penal Code criminalized ‘voluntarily causing miscarriage’, meaning that the woman herself or anyone, including a medical practitioner, could be prosecuted for an abortion caused voluntarily.

The Medical Termination of Pregnancy Act (MTP), 1971

This act allowed medical termination by a registered practitioner in two situations:

1. For pregnancies up to 12 weeks after conception, on consent and the opinion of a single doctor. and,

2. For pregnancies between 12-20 weeks, with the opinion of two doctors, to establish that if the pregnancy is continued, it could be risky for the mother or the child to be born.

The issue seen with the MTP Act was that where the law recognized the change in the marital status of a pregnant woman- such as divorce and widowhood, it did not recognize the position of unmarried women.

The Supreme Court’s Verdict

A bench led by Justice D.Y.Chandrachud passed an interim order allowing the 25-year-old woman to terminate her pregnancy after the required medical consent, stating the abortion could be safely carried out. Justice D.Y. Chandrachud stated that the case involved a “substantial question of law” regarding the interpretation of the law, which has been discriminatory towards women on the basis of their marital status.

He held: “The rights of reproductive autonomy, dignity, and privacy under Article 21 of the Constitution gives an unmarried woman the right of choice as to whether to bear a child on a similar footing as that of a married woman.”

The court further explained its point and stated that a single woman may suffer the same “change in material circumstances” as any other married woman. She too may have been abandoned or lost a job or been subjected to violence during her pregnancy. Where the Delhi High Court denied the petition on the grounds that Rule 3B of the MTP Rules, 2003 (Amended) highlighted the change of the marital status of the woman and by this definition, a woman in a live-in relationship was considered unmarried, the Apex court took an expansive view and interpreted, as the word ‘partner instead of husband’, and said the law of the land can not be confined to a certain group of people. Denying justice to the petitioner only on the grounds of her marital status would be contrary to the “object and spirit of the legislation”.

The Supreme Court bench also directed the director of the All-India Institute of Medical Sciences (AIIMS) to set up a medical board, comprising of two doctors for examining the woman to determine if it was safe to go ahead with the termination, and if no risk is advocated, the woman has her right to go for the abortion.

Conclusion

On one hand, where a significant step backward was seen for women’s rights in the U.S, when the Supreme Court overturned the landmark judgment Roe v. Wade 1973, which had given the women of America to discontinue a pregnancy before the fetus is visible outside the womb or before the 24-28 week, the latest judgment has undoubtedly being considered progressive. It is now important that the public policies should not only be reworked but provisions should be made to accommodate individuals or organizations that focus on women and their reproductive rights should be taken more seriously.

References:

  1. Termination, M. (2022). Ministry of Health and Family Welfare. Retrieved 3 October 2022.
  2. (2022). Retrieved 3 October 2022, from https://indiankanoon.org/doc/1990693/.S.312 defines the offence of causing miscarriage as follows “whoever voluntarily causes a woman with child  to miscarry shall if such miscarriage be not caused in good faith for the purpose of saving the life of the woman be punished with imprisonment of either description for a term which may extend to 3 yrs, or with fine or with both and if the woman be quick with child shall be punished either imprisonment of either description for a term which may extend to 7 yrs, and shall be liable to fine”
  3. Upendra Baxi, Abortion and the law in India, Journal of the Indian Law Institute,1986-87,Vol-28-29,Alice Jacob, New Delhi.
  4. U/S 2(d) of MTP ACT1971defines “registered medical practitioner” means a medical practitioner who possesses any recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956, (102 of 1956), whose name has been entered in a State Medical Register and who has such experience or training in gynecology and obstetrics as may be prescribed by rules made under this Act.

5. Roe v. Wade, 410 US 113 (1973).