On Thursday, the Supreme Court rules that the rights granted to married women under the Medical Termination of Pregnancy Act of 1973 to abort a foetus would be extended to unmarried women. While the 1971 Act is concerned with married women, the statement of purposes and reasons for the 2021 amendment did not distinguish betweeerefore “all women entitled to safe and legal abortion,” said a bench comprising of Justices DY Chandrachud, AS Bopanna and JB Pardiwala.
The Court found that it is unconstitutional to exclude unmarried women who conceive outside of a live-in relationship from the Medical Termination of Pregnancy Rules. According to the reports, the issue was whether the exclusion of unmarried women from Rule 3B of the Medical Termination of Pregnancy Rules is valid. Rule 3B mentions the categories of women whose pregnancy in the duration of 20-24 weeks can be terminated.
“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”, Justice Chandrachud said.
“The rights of reproductive autonomy give an unmarried women similar rights as a married women”, the Court stated adding that excluding unmarried women would be violative of Article 14 of the Constitution. Reports mention that the foetus survives on the woman’s body and as a result their decision to terminate stems from their right to bodily autonomy. “If the state forces a woman to carry an undesired pregnancy to term, it is an insult to her dignity”, the Court maintained.
The case came to the fore when a 25-year-old unmarried woman approached the Delhi High Court seeking termination of her 23-week-and-5-day pregnancy, saying that her pregnancy was the result of a consensual relationship. She said she couldn’t give birth to the child because she was an unmarried woman and her partner had refused to marry her.
A split judgement by a bench of the Delhi High Court comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad, however, denied her temporary relief. The High Court found that unmarried women whose pregnancy resulted from a consensual relationship were not protected by any of the clauses in the 2003 Medical Termination of Pregnancy Rules. She subsequently petitioned the Supreme Court, which issued an ad-interim decision on July 21, 2022, permitting her to terminate her pregnancy subject to a medical board convened by AIIMS Delhi deciding that the unborn might be aborted without endangering the woman’s life.
The Supreme Court panel concluded that the Delhi High Court had taken an unduly ‘restrictive approach’ since Rule 3(b) refers to a woman’s ‘change in marital status,’ which is followed by the phrases widowhood or divorce. The bench considered amendments made to the Medical Termination of Pregnancy Act in 2021, which replaced the word ‘husband’ with the word ‘partner’, and concluded that excluding unmarried women and single women from the statute goes against the purpose of the legislation.
“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 noted on September 29.