Background of the case
A 25 years old unmarried woman approached the High Court of Delhi for seeking termination of pregnancy of 23 weeks and 5 days. She stated before the Court that she got pregnant out of a consensual relationship, but she could not give birth to the child as she was an unmarried woman and her partner denied to marry her. The division bench of High Court of Delhi refused interim relief to the woman. The High Court observed that an unmarried women, whose pregnancy arose out of a consensual relationship, cannot be covered under the provisions of the Medical Termination of Pregnancy Rules, 2003.
An appeal was filed against the order of the High Court before the Supreme Court, wherein the Apex Court passed an ad-interim order granting her permission to abort her pregnancy subject to a medical board constituted by the AIIMS Delhi who must form a conclusive decision that the foetus could be aborted without causing risk to the life of the woman.
Issue before the Apex Court
Whether the exclusion of unmarried woman, whose pregnancy arises out of consensual relationship, from Rule 3B of the Medical Termination of Pregnancy Rules is valid?
View of the Apex Court
The Top Court was of the view that the Delhi High Court had taken an “unduly restrictive view” and Rule 3(b) of the Act speaks of “change in marital status” of woman, followed by expressions widowhood or divorce. The Supreme Court held that the expression “change in marital status” must be given a “purposive interpretation”.
The bench of the Supreme Court comprising Justice DY Chandrachud, Justice Surya Kant and Justice AS Bopanna considered the amendments made to the Medical Termination of Pregnancy Act in 2021, wherein the term “husband” in Explanation 1 to Section 3(2) of the Act was substituted with the word “partner”.
The Court observed that excluding unmarried women from the ambit of the Act will not be in consonance with the purpose of the legislation. The court stated that “There is no basis to deny unmarried women the right to medically terminate the pregnancy, when the same choice is available to other categories of women.“
The Court in its latest judgment stated that “All women are entitled to safe and legal abortion”, and noted 2021 amendment to the Medical Termination of Pregnancy Act wherein the Act does not make a distinction between married and unmarried women.
No differentiation between married and unmarried women
Justice Chandrachud, who was the presiding judge of the bench in the instant case, read out the excerpts of the judgment stating that “If Rule 3B(c) is understood as only for married women, it would perpetuate the stereotype that only married women indulge in sexual activities. This is not constitutionally sustainable. The artificial distinction between married and unmarried women cannot be sustained. Women must have autonomy to have free exercise of these rights”.
The Court further added that “The rights of reproductive autonomy give an unmarried women similar rights as a married women”. It was highlighted by the Court that the object of Section 3(2)(b) of the Act allows a pregnant woman to undergo abortion after 20-24 weeks. Hence, interpreting the provision in a narrow way by including only married will be violative of Article 14 of the Constitution of India.
Reproductive right part of individual autonomy
A well-explained and a logically decision was given by the Apex Court. The foetus relies on the woman’s body to sustain and hence, the decision to terminate the pregnancy is deeply rooted to the mother who is carrying it. If a woman is forced by the State to carry an unwanted pregnancy the same shall amount to disrespect her dignity.
Changing social mores and Law
The Act of 1971 was largely concerning the married woman. However, the societal norms and mores change, law must also adapt. If the applicability of the law shall be limited to the married woman only then it shall violate the rights of unmarried woman who became pregnant willingly or unwillingly but want to abort at a later stage. It is her body and hence, it should be her decision and no social or legal force should be put on her.
Which are the categories of women included in Rule 3B?
The categories of women mentioned in Rule 3B of the MTP Rules framed by the Central Government are:
- survivors of sexual assault or rape or incest;
- minors;
- change of marital status during the ongoing pregnancy (widowhood and divorce);
- women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];
- mentally ill women including mental retardation;
- the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and
- Women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.
These categories were added in the MTP Rules by the Central Government following the 2021 amendment to the MTP Act, which raised the ceiling limit for termination of pregnancy.
Conclusion
The Apex Court while interpreting the objective of the Act says that it comprise the ‘core of constitutional rights’. The Act recognizes a woman’s ‘decisional autonomy’ to exercise ‘intimate personal choices’ as a ‘self-governing’ individual. The court also considered the sheer magnitude of bodily responsibility that is imposed on women by an unwanted pregnancy, and it also taken into account the ‘cascading effects’ of such pregnancies on her overall wellbeing.
The Court also stated that a woman is the ‘ultimate decision-maker’ on abortion: It said that ‘The decision to have or not to have an abortion is borne out of complicated life circumstances, which only the woman can choose on her own terms’. As the woman is the sole decision maker and hence, if she is willing to abort and if such an abortion is safe then restricting her to do so will not be apt in the eyes of law.
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