Supreme Court’s Abortion Ruling

Why in news?

The Supreme Court in a significant judgment ruled that all women, irrespective of their marital status, are entitled to safe and legal abortion.

A plea was made in the Delhi High Court by a 25-year-old unmarried who wished to terminate her pregnancy as her partner had refused to marry her at the last stage.
The woman moved to the Supreme Court seeking an abortion after the Delhi High Court declined her plea.
She argued that the continuation of the pregnancy would involve a risk of grave and immense injury to her mental health.
However, the Medical Termination of Pregnancy Rules, 2003, allowed such change in circumstances only for marital relationships.
The Supreme Court, in an interim order, had allowed the petitioner to terminate her pregnancy.

Unsafe abortions continue to be the third leading cause of maternal mortality. 60% of abortions carried out in India are unsafe.

The Medical Termination of Pregnancy (Amendment) Act, 2021 allows termination of pregnancy by a medical practitioner in two stages.
For pregnancies up to 20 weeks- Termination is allowed under the opinion of one registered medical practitioner.
The MTP can be accessed
- If the continuation of pregnancy would involve a risk to the life of the pregnant woman or result in grave injury to her physical or mental health.
- If the pregnancy is as a result of rape or failure of contraceptive used by the pregnant woman or her partner to limit the number of children or to prevent pregnancy.
- If there is a substantial risk that if the child was born, it would suffer from serious physical or mental abnormality.
For pregnancies between 20-24 weeks- Certain criteria such as who can avail termination, requirement of opinion of two registered medical practitioners etc. had been added.
As per Section 3B of the Rules, this extended gestational limit is applicable to
- Survivor of sexual assault or rape
- Minors
- Change of marital status during the ongoing pregnancy
- Women with physical disabilities
- Mentally ill women
- The foetal malformation
- Pregnancy in humanitarian settings or disaster

To know more about The Medical Termination of Pregnancy Act, click here

Abortion regardless of marital status- The Court has ruled that there is no rationale for excluding single or unmarried women from the women who could seek abortion care between 20 weeks to 24 weeks.
Change in marital status- It permitted the change in marital status as one of the reasons for which abortion during the extended upper limit of 24 weeks.
The Court has ruled that even abandonment by the partner could constitute a change in circumstances.
Rights of reproductive autonomy- The Court said that the rights of reproductive autonomy give the same rights to married as well as unmarried women.
Decision- The Court has laid down that an unwanted pregnancy affects a woman’s physical and mental health, rendering it important that she alone should decide on whether to undergo an abortion.
Marital rape- The court ruled that under the Act, the definition of rape must include marital rape.
The significant decision came months after the US Supreme Court overturned the historic 1973 Roe v Wade decision that made abortion a constitutional right in the country.

Rights- The judgement is anchored on the clauses of equality, right to dignity, privacy and bodily autonomy of women.
Discourage illegal abortions- Legalisation of abortions will discourage the illegal practice of abortions done through untrained, unauthorised paramedics which are hazardous for the child bearer.
Social and gender justice- Access to abortion is critically tied to preserving and upholding the human rights of pregnant women, girls, and others, and hence to attaining social and gender justice.
On marital rape- The inclusion of marital rape under the Act sends a powerful message for recognising marital rape as an offence under Section 375 of the IPC.
Case based decision- While the ruling recognises the right of unmarried women, it leaves the enforcement of the right to be decided on a case-to-case basis.
This means the decision will be in the hands of the registered medical practitioners and if unsatisfied, the woman can approach the court.

Exception 2 to Section 375 of the IPC removes marital rape from the ambit of rape.

References