In a landmark judgment on reproductive rights pronounced on Thursday, September 29, the Supreme Court extended the right to all pregnant women to seek safe and legal abortion, irrespective of their marital status. The judgment also expanded on the meaning of rape to include marital rape, for the purposes of the Medical Termination of Pregnancy (MTP) Act. The order was passed by a three-judge bench headed by Justice Dhananjaya Y Chandrachud, while disposing of a petition by an unmarried 25-year-old woman, whose plea at the Delhi High Court seeking to terminate her pregnancy, was rejected.
In a purposive interpretation of specific sections of the MTP Rules, the court ruled, “The object of Section 3(2)(b) of the MTP Act read with Rule 3B is to provide for abortions between twenty and twenty-four weeks, rendered unwanted due to a change in the material circumstances of women. In view of the object, there is no rationale for excluding unmarried or single women (who face a change in their material circumstances) from the ambit of Rule 3B. A narrow interpretation of Rule 3B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 of the Constitution.”
The woman had sought to terminate her pregnancy before completion of 24 weeks of pregnancy, as well as to include unmarried women within the ambit of the MTP Rules. She wanted to get an abortion as her partner had refused to marry her. However, the Delhi HC rejected her plea saying that she was not covered under the MTP Rules as she was an unmarried woman, whose pregnancy arose out of a consensual relationship. Following this, she had approached the apex court and was granted interim relief on July 21, allowing her to get an abortion, under the observation of a Medical Board.
For the purposes of the judgment, the court expanded the definition of the word ‘woman’ to include “persons other than cis-gender women who may require access to safe medical termination of their pregnancies.” Here are the important observations made by the bench of Justices DY Chandrachud, AS Bopanna and JB Pardiwala.
Pointing out that under the MTP Act, the opinion of a medical practitioner was ‘decisive’ which made it a ‘provider-centric law’, the court said that significant reliance should be placed on “each person’s own estimation of whether they are in a position to continue with the pregnancy.” Further, noting that a person’s right to accessing abortion was dependent on the approval given by the registered medical practitioner (RMP), the court said that the denial of the same, compelled women to approach courts or seek abortions in unsafe conditions. “A fear of prosecution under this complex labyrinth of laws, including linking of the MTP Act with the IPC, acts as a major barrier to safe abortion access, by having a chilling effect on the behaviour of RMPs. The chilling effect… has an impact on the decision-making of medical professionals acting under the MTP Act and consequently impedes access to safe and legal abortions and the actualisation of women’s fundamental right to reproductive autonomy,” the court said.
Further, the court said, “Reproductive autonomy requires that every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorisation from a third party,” the court said and added that the right to reproductive autonomy was closely linked with the right to bodily autonomy. Stating that it was the pregnant woman who dealt with the pregnancy and its consequences such as interruption in education, career and the effect on mental wellbeing, the court said that “the decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman.”
Recalling the KS Puttaswamy v Union of India case, which held that personal aspects of life such as family, marriage, procreation, and sexual orientation were all intrinsic to the dignity of the individual, the court said, “Decisional autonomy is an integral part of the right to privacy. Decisional autonomy is the ability to make decisions in respect of intimate relations.”
The bench also said that the right to dignity in the context of abortion, also included recognition of the competence and authority of every woman to take reproductive decisions, including the decision to terminate a pregnancy. “The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical wellbeing also injures the dignity of women,” the court said. The bench also said that it was only when treatment was not denied on the basis of one’s caste or due to other social or economic factors, it could be said that the right to bodily autonomy and the right to dignity are capable of being realised.
The court said that insufficient infrastructural facilities, a lack of awareness, social stigma, and failure to ensure confidential care, were some of the problems that existed despite enacting the MTP Act. The court also observed that unmarried women face particular barriers due to gender stereotypes about women’s sexual autonomy outside marriage. “These barriers are a serious impediment and deter single women from seeking safe and legal abortions. Such barriers may contribute to a delay in accessing abortion services or a complete denial of such services, consequently negating women’s right to reproductive autonomy,” the court added.
The court also took note of the fact that fear of prosecution of a medical practitioner also played an important role that hindered access to safe abortion. A medical practitioner’s “decision to provide medical termination of a pregnancy is also influenced by social stigma surrounding unmarried women and pre-marital sex, gender stereotypes about women taking on the mantle of motherhood and the role of women in society,” the bench said.
The order also spoke about how lack of sex education also led to most adolescents being unaware of how the reproductive system or contraceptives functioned, and said that taboos around pre-marital sex prevented young adults from attempting to access contraceptives. The same taboos played a role when an instance of pregnancy was discovered. Noting that women face social stigma for engaging in pre-marital sexual relations, the court pointed out that this stigma prevented them from using their right to reproductive health in a variety of ways. The court also said that the ambit of reproductive rights was not restricted to the right of women “to have or not have children,” but it included “the constellation of freedoms and entitlements that enable a woman to decide freely on all matters relating to her sexual and reproductive health.”
The court also noted, “Reproductive rights include the right to access education and information about contraception and sexual health, the right to decide whether and what type of contraceptives to use, the right to choose whether and when to have children, the right to choose the number of children, the right to access safe and legal abortions and the right to reproductive healthcare. Women must also have the autonomy to make decisions concerning these rights, free from coercion or violence.”
The court also observed that while the law’s benefits were rooted in the institution of marriage, the notion that marriage was a “precondition to the rights of individuals” was changing. “The law must remain cognisant of the fact that changes in society have ushered in significant changes in family structures,” the court said and recalled the S Khusboo vs Kanniammal case, where the court observed that “live-in relationships and pre-marital sex should not be associated with the lens of criminality.” The court also said that there was a need to legally recognise ‘non-traditional manifestations of familial relationships,’ which became necessary to enable individuals from these structures to enjoy the benefits of legislations, including the MTP Act.
The court also recalled several legislations by the parliament that were enacted to bring about a congruence between the rights of married and unmarried women, such as The Maternity Benefit Act (which extended maternity benefits to all women, including unmarried women, by using the phrase ‘every woman’), The Hindu Succession Act (which stated that a daughter - irrespective of her marital status - had equal rights as a son), The Hindu Adoptions and Maintenance Act (that states that any female Hindu - regardless of her marital status - can adopt a child) and The Guardian and Wards Act (that permits anyone to apply for guardianship without making any distinction between men or women, married or unmarried). The court observed that these legislations signified that both married and unmarried women had equal decisional autonomy to make significant choices regarding their own welfare.“In the evolution of the law towards a gender equal society, the interpretation of the MTP Act and MTP Rules must consider the social realities of today and not be restricted by societal norms of an age which has passed into the archives of history,” the court said.
The court also said that a woman could become pregnant by choice irrespective of her marital status, and that while responsibility was shared between the partners if the pregnancy was wanted, the burden invariably fell on the woman if it was not. “Article 21 of the Constitution recognises and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake. Importantly, it is the woman alone who has the right over her body and is the ultimate decisionmaker on the question of whether she wants to undergo an abortion,” the court observed.
The court also ascertained that prohibiting unmarried or single pregnant persons from accessing abortion while allowing married women to do so would be against the spirit of Article 14. “The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes “permissible sex”, which create invidious classifications and excludes groups based on their personal circumstances. The rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman,” the court said. Article 21 pertains to protection of life and personal liberty.
The bench also took note of the fact that the MTP Act was brought in to provide access to safe and legal medical abortions to women and said that the amendment to the Act made in 2021, intended to extend the benefits to all women, including single and unmarried women. Further, the court also said that by replacing ‘married woman or her husband’ in the act with ‘married woman or her partner,’ the legislature intended to bring pregnancies which occur outside the institution of marriage within the protective umbrella of the law.
On Rule 3B of the MTP Rules – which specifies the various categories of women eligible for termination of pregnancy up to 24 weeks – the bench observed that a common thread running through each category of women mentioned in Rule 3B was that the concerned woman was in “a unique and often difficult circumstance,” with respect to her physical, mental, social, or financial state. “All the different categories in Rule 3B represent women who seek an abortion after twenty weeks either due to a delay in recognising pregnancy, or some other change in their environment impacting their decision on whether the pregnancy is wanted or unwanted. The law recognises the myriad ways in which a pregnancy may cause distress in such situations and cause grave injury to her physical and mental health. It gives such women latitude in seeking out the termination of an unwelcome pregnancy by extending the gestational period up to which the termination is legally permissible,” the court observed. The court also said that Rule 3B was not an exhaustive list of the potential changes in a woman’s life and that it “merely specifies some of the potential changes to a woman’s material circumstances.”
Observing that Rule 3B also dealt with survivors of sexual assault, the court says that married women could also form part of the class of survivors of sexual assault or rape. “The 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. A woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband. We would be remiss in not recognising that intimate partner violence is a reality and can take the form of rape,” the court said.
While including ‘marital rape’ under the ambit of rape solely for the purposes of the MTP Act, the court also said, “Any other interpretation would have the effect of compelling a woman to give birth to and raise a child with a partner who inflicts mental and physical harm upon her.” The court also made it clear that the understanding of rape under the MTP Act, did not have the effect of striking down exception 2 to section 375 of the Indian Penal Code (IPC) and any rules and regulations framed thereunder. “Since the challenge to exception 2 to section 375 of the IPC is pending consideration before a different bench of this court, we would leave the constitutional validity to be decided in that or any other appropriate proceeding,” the Court added.
Speaking of the intersection of Protection of Children from Sexual Offences (POCSO) and MTP Acts, the court said that as section 19(1) of the POCSO Act (section 19 deals with reporting of offences) mandated reporting of a sexual crime against a minor, those who approach a medical practitioner for termination of pregnancy that arose out of a consensual sexual activity are faced with a dilemma of being involved in criminal proceedings under the POCSO Act, or approach an unqualified doctor for a medical termination of the pregnancy. The court directed the medical practitioners to abstain from disclosing the identity or details of the minor – if there was a request from the minor or the guardian – for the limited purposes of providing medical termination of pregnancy in terms of the MTP Act.