Manas Dasgupta
NEW DELHI, Sept 29: In a historic judgment, the Supreme Court on Thursday allowed unmarried and single women whose pregnancies are between 20 and 24 weeks to access safe and legal abortion care on par with their married counterparts.
A Bench led by Justice D.Y. Chandrachud pried open the restrictive grip of a 51-year-old abortion law which barred unmarried women from terminating pregnancies which are up to 24-weeks old. All women are entitled to a safe and legal abortion process and making any distinction between a married and an unmarried woman in this regard is unconstitutional, the Supreme Court ruled.
The 1971 act of Medical Termination of Pregnancy and subsequent rules farmed under it in 2003 prohibited unmarried women who are between 20 weeks to 24 weeks pregnant to abort with the help of registered medical practitioners. “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 or not to bear a child on a similar footing as that of a married woman,” Justice Chandrachud held.
The ground-breaking judgment by the bench of Justice DY Chandrachud, Justice AS Bopanna and Justice JB Pardiwala also saw the court recognise marital rape, though purely within the ambit of abortion. The court ruled that under the Medical Termination of Pregnancy Act, the definition of rape must include marital rape. This observation may pave the way for later judgments on marital rape, a subject of intense debate in the country.
“Married women may also form part of class of survivors of sexual assault or rape. Ordinary meaning of the word rape is sexual intercourse with a person without their consent or against their will regardless of whether such forced intercourse occurs in the context of matrimony,” the court said.
The marital status of a woman cannot be a ground to deprive her of the right of abortion, the court said, while ruling that even unmarried women would be entitled to terminate an unwanted pregnancy within 24 weeks. The court said a distinction between married and unmarried women under the abortion laws is “artificial and constitutionally unsustainable” and perpetuates the stereotype that only married women are sexually active.
The judgment said that the consequences of an unwanted pregnancy on women’s body and mind “cannot be understated”. Stressing that the biological process of pregnancy transforms the body of women. The decision to carry pregnancy to full term or terminate it is “firmly rooted under right to bodily autonomy and decisional autonomy of the pregnant women”, the court said.
If women with unwanted pregnancies are forced to carry their pregnancies to term, the State would be stripping them of the right to determine the immediate and long term path that their life will take, the judgment added.
The landmark verdict came on a petition by a 25-year-old unmarried woman. The woman had appealed against a Delhi High Court order that she is not entitled to abortion under the Act as she was unmarried, and the pregnancy followed a consensual relationship. The woman had submitted that she was 23 weeks into her pregnancy and that partner had refused to marry her. She had said she was the eldest of five siblings and her parents are farmers, stressing that she does not have the means to bring up a child.
On July 21, the court had allowed the woman to abort the foetus provided a medical board concluded that it will not harm her. The bench had then said provisions of the abortion law, amended in 2021, now include the word “partner” instead of “husband”. This, the court said, shows that Parliament did not want to confine a situation of abortion to only a matrimonial relationship.
The court declared that prohibiting single or unmarried pregnant women with pregnancies between 20 and 24 weeks from accessing abortion while allowing married women with the same term of pregnancy to access the care was violative of the right to equality before law and equal protection.
The court said a single or unmarried woman may suffer the same “change in material circumstances” or injury to mental health that a married pregnant woman may have. She may be abandoned or lose a job or subject to domestic violence during an ongoing pregnancy. She may not want to have a child with her former partner. She may also be in danger of her life due to foetal abnormalities. A single woman may also have been exploited or the cause of her pregnancy may simply be due to contraceptive failure, leaving her in mental anguish.
The source of her pregnancy may also be the same vulnerability that applies to other women. There is a need to have a forward-looking interpretation of the law, the court said. “The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes permissible sex. This would create invidious classifications,” Justice Chandrachud said in the judgment.
The court said the MTP Act amended in 2021 had addressed the “continuing crisis” of unsafe abortions. Close to eight women die every day in India due to unsafe abortions. Sixty-seven per cent of the abortions carried out in the country between 2007-2011 were classified unsafe by studies. One of the reasons, the Parliament was aware, was that women outside marriages and in poor families were left with no choice but use unsafe or illegal ways to abort unwanted pregnancies. Hence, to address this issue, the 2021 amendments had included the word ‘partner’, showing that the law was not just concerned about women who undergo pregnancy within marriage, but outside marriage too. After all, the medical risk was the same for both married and unmarried women.
The court said the artificial distinction between married and unmarried women was not constitutionally sustainable. “The benefits of law extend equally to single and married women… If women with unwanted pregnancies are forced to carry them out to term, the state would be stripping of their right to determine the immediate and long-term paths their lives would take and deprive women of autonomy not only over their bodies but also over their lives. This will be an affront to their dignity,” Justice Chandrachud observed in the verdict. The court held that reproductive autonomy required every pregnant women to have the intrinsic right to choose to have or not have to undergo abortion without any consent or authorisation from a third party.
