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Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom”, observed the Supreme Court while allowing an unmarried woman to seek abortion of her pregnancy of a term of 24 weeks which arose out of a consensual relationship.

Background:

• A Bench led by Justice D.Y. Chandrachud was hearing the appeal of a woman who wanted to abort after her relationship failed and her partner left her.
• The lower court had taken an “unduly restrictive view” that her plea for a safe abortion was not covered under the Medical Termination of Pregnancy Act as the pregnancy arose from a consensual relationship outside wedlock.

The Supreme Court’s observations

• The Bench said live-in relationships had already been recognised by the Supreme Court. There were a significant number of people in social mainstream who see no wrong in engaging in pre-marital sex. The law could not be used to quench “notions of social morality” and unduly interfere in their personal autonomy and bodily integrity.
• The court noted that an amendment to the Act in 2021 had substituted the term ‘husband’ with ‘partner’, a clear signal that the law covered unmarried women within its ambit.
• “A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of Constitution. She has a sacrosanct right to bodily integrity….There is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’,” the Supreme Court quoted from precedents.
• The court said forcing a woman to continue with her pregnancy would not only be a violation of her bodily integrity but also aggravate her mental trauma.
• In Justice K.S. Puttaswamy (Retd.) and Anr v. Union of India and Ors, the decision of a woman to procreate or abstain from procreating has been recognized as a facet of her right to lead a life with dignity and the right to privacy under Article 21 of the Constitution.

What is India’s law on abortion?

• Section 312 of the Indian Penal Code, 1860, criminalises voluntarily “causing miscarriage”.
• The Supreme Court’s expansion of the law to include unmarried women as part of the MTP Act has given women in similar circumstances an option now to access healthcare services without having to travel the long legal route to the top court every time.

Medical Termination of Pregnancy (amendment) Act 2021

Progressive features of MTP Act 2021

• As per the MTP Act, all women are allowed to get a medical termination of pregnancy before 20 weeks. But only certain categories of women are allowed to have an abortion between 20 and 24 weeks — survivors of rape, minors, and a married woman whose relationship status has altered during this period.
• Lowers burden on courts: Removes the limit of 24 weeks for termination of pregnancy in case of substantial foetal abnormalities, diagnosed by the newly established Medical Board– thus easing the burden on courts of writ petition for seeking abortion beyond the permitted period.
• Maintains confidentiality: Names of the woman whose pregnancy has been terminated will be kept confidential– thus ensuring dignity and confidentiality of women.
• De-stigmatizes relations outside marriage: Relaxes termination of pregnancy due to contraceptive-failure condition for ”any woman or her partner’‘ – thus de-stigmatizes pregnancies outside marriage

Serious concerns with its provisions:

• No right to abortion at will: It has various conditions for the termination of pregnancies.
• No recourse for rape victims: For the termination of pregnancies beyond 24 weeks, rape victims cannot approach the Medical Board (can approach in case of ‘substantial foetal abnormalities’ only). So, the only recourse remains is through a Writ Petition.
• No time frame for the medical board: Bill doesn’t provide the time frame within which the Medical board must make its decision – any delays may lead to further complications for women.
• Transgender and unmarried, if they require abortion beyond 20 weeks, are not considered in the bill
• Potential for executive overreach: Special categories of women whose gestation limit will be increased from 20 to 24 will be decided by the central government – and not by a sovereign body like parliament
• Doesn’t considers institutional lacunae: According to the bill only Registered medical practitioners having experience or training in gynaecology or obstetrics can perform the abortion, but according to NH&FS (2015-16) data only 53% of abortions are performed by a registered medical doctor, the rest are conducted by a nurse, midwives, family members, etc

• Expecting the presence of two gynaecologists in rural areas to ascertain the need for abortion is irrational.