Just weeks after the US Supreme Court passed a controversial order to ban or severely restrict the ability of pregnant women to get abortions, a similar case arise in India.
Supreme Court’s Ruling
On Thursday, September 29, the Supreme Court in a significant judgement allowed a 25-year-old woman to terminate her pregnancy. Furthermore, the Apex court stated that it is unconstitutional to differentiate between married and unmarried women. This is said so to allow for the termination of pregnancy on certain exceptional grounds when the foetus is between 20-24 weeks.
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Coincidentally, the ruling delivered on the World Safe Abortion Day, which emphasize female autonomy in accessing abortion. The ruling stated that all women, including those who are not married and persons other than cis-gender women, had equal rights to abortion. It is indeed a progressive one ruling in a country where there are 73 million single women.
What was the case about in Supreme Court?
A 25-year-old pregnant woman brought the petition forward because she wanted to abort. Her partner had refused to marry her at the last minute having a child out of wedlock would open her to “social stigma and harassment,” The woman said that she could not afford to bring up a child. She didn’t have a job and didn’t come from an affluent family.
She further said that she isn’t mentally prepared to raise a child. The woman had first brought the petition before the Delhi High Court. However, the High Court rejected her plea for an abortion saying, that she wasn’t covered under the laws. Because she isn’t unmarried and in a consensual relationship.
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A few days later, she appealed before the Supreme Court against the decision of the High Court. The Apex Court, holding that the law had to be given a purposive interpretation had allowed the petitioner to terminate her pregnancy in an interim order. However, challenge to the law, which would benefit other women as well, were still pending before the court.
Abortion Laws in India before Supreme Court decision
Speaking of Abortions, it has been legal in our country since 1971. Though over the years, authorities have made a few strict rules. It tells that who can terminate pregnancy and until what stage. The rules made as a result because of the traditional preferences for having sons. Due to which millions of female foetuses have been aborted. As a result, the country’s gender ratio has become terribly skewed.
These rules are so stringent that even rape survivors including those children who had no idea that they were pregnant. They had to go before the court to seek permission for terminating the pregnancy if the pregnancy discovered after 20 weeks. After a series of such cases, the govt amended the MTP (Medical Termination of Pregnancy) Act last year. It allows several categories women to seek abortions between 20 to 24 weeks.
The list includes:
Rape survivors, Minors, Women with mental disabilities, Women with fetuses that had major abnormalities and Married women (who were divorced or widowed during pregnancy).
Bench Composition
A 3-judge Bench composed of Justice D.Y Chandrachud, A.S Bopanna and J.B Pardiwala framed the interpretation of Rule 3B of the Medical Termination of Pregnancy Act. According to Rule 3B, only a few categories of women are allowed to seek termination of pregnancy. The duration of the abortion is between 20-24 weeks under certain extraordinary circumstances. As per the Medical Termination of Pregnancy Act, it allows termination of pregnancy in 2 stages by a medical practitioner.
These two stages are:
If the continuance of the pregnancy involved a risk to the life of pregnant woman or grave injury to her physical or mental health. If there is a substantial risk that if a child is born then it would suffer from some serious physical or mental abnormality. For both stages, within 20 weeks and between 20 to 24 weeks termination is allowed by the Act.
Supreme Court’s Interpretation to the Laws
As per the court’s statement, the Rule 3B(c) can not be read in isolation but it has to be read together with other sub-clauses under 3B. The court held that, “Rule 3B(c) is based on the broad recognition of the fact that a change in the marital status of a woman often leads to a change in her material circumstances.
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“A change in material circumstances during the ongoing pregnancy may arise when a married woman divorces her husband or when he dies. As recognized by the examples provided in parenthesis in Rule 3B(c).
“The fact that widowhood and divorce are mentioned in brackets at the tail end of Rule 3B(c) does not hinder our interpretation of the rule because they are illustrative.” The court further added, “It is not inconceivable that married women become pregnant as a result of their husbands having “raped” them.”
Effect of the Judgement
The court’s ruling recognise the right of unmarried women to terminate the pregnancy. However it leaves the enforcement of the right to be decided on a case-to-case basis. As per the rulings, the decisions of terminating the pregnancy will be in the hands of registered medical practitioners. However, if any woman is unsatisfied, can approach the court.
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