Supreme Court on right to abortion
Why in news
September 29, 2022, the Supreme Court in a significant judgment declared that unmarried women are also entitled to seek abortion in the term of 20-24 weeks arising out of a consensual relationship.
The Court Verdict
The Supreme Court ruled that the exclusion of unmarried women who conceive out of the live-in relationship from the Medical Termination of Pregnancy Rules is unconstitutional. All women are entitled to safe and legal abortion”, the Court said. The 2021 amendment to the Medical Termination of Pregnancy Act does not make a distinction between married and unmarried women. “All women entitled to safe & legal abortion, the distinction between married & unmarried women is Unconstitutional” (Case: X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, C.A 5802/2022).
The Court said “it perpetuates the stereotype that only married women indulge in sexual activities.” The Supreme Court also emphasized the environment one must consider around pregnant women. Moreover, the court observed it’s ultimately the decision of the woman carrying the child to decide keeping in mind her economic, social, and cultural factors as well as her material circumstances.
The court further said, “Denying an unmarried woman the right to a safe abortion violates her autonomy and freedom. Live-in relationships have been recognized by this Court”.
In this breakthrough ruling, the bench of Justice D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice A.S. Bopanna recognized marital rape, though purely within the ambit of abortion.
This judgement is significant as it is the first ever legal recognition of marital rape, although within the limited purview of abortion. The SC held that the meaning of rape should also include marital rape, solely for the purpose of the MTP Act and related rules.
The bench held that the right to reproductive autonomy, dignity and privacy is provided by Article 21 of the Indian Constitution. This provides unmarried women with the right to choose whether or not to bear a child, just as married women do.
Facts of the case:
The verdict came on a petition filed by a 25-year-old young unmarried woman who approached the high court seeking termination of her pregnancy of 23 weeks and 5 days. The consensual relationship resulted in the pregnancy voluntarily. The Delhi high court ruled that under the act she’s not entitled to get an abortion as she’s unmarried. The woman submitted to the Supreme Court that she was the eldest of all five siblings, and her partner had refused to marry her. This leads to a very tough circumstance in raising a child all on her own.
The legal issue before the Supreme Court to decide
Whether a pregnancy that arose from a consensual relationship excluding unmarried pregnant women from rule 3B of the Medical Termination of Pregnancy Rules was valid?
Rule 3B of the MP Rules
This rule provides the following categories of women to abort:
1. Survivors of sexual assault or rape or incest,
2. Minors, change of marital status during the ongoing pregnancy (widowhood and divorce),
3. Women with physical disabilities (major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016).
4. Women who are mentally ill, including those with mental retardation, fetal malformations that pose a significant threat to life or, if the child is born, may have severe physical or mental impairments; and
5. Women who are pregnant in humanitarian settings or during natural disasters or other emergencies that the government may declare.
Abortion laws in India
MTP Act
The Medical Termination of Pregnancy (MTP) Act, 1971 provides a legal way to abortion in various circumstances. The Medical Termination of Pregnancy Regulations, 2003 were issued under the Act to enable women to access safe and legal abortion services.
The amendments in the MTP Act in 2021
Medical Termination of Pregnancy (Amendment) Act, 2021 came into force on September 24, 2021. This amendments was passed with certain objectives, such as expanding access of women to safe and legal abortion services on therapeutic, eugenic, humanitarian or social grounds. Women being allowed to seek safe abortion services on grounds of contraceptive failure, increase in gestation limit to 24 weeks for special categories of women, and opinion of one abortion service provider required up to 20 weeks of gestation.
The cost of the abortion service is covered fully by the government’s public national health insurance funds, Ayushman Bharat and Employees’ State Insurance with the package rate for surgical abortion being set at ₹15,500 which includes consultation, therapy, hospitalization, medication, ultrasound, and follow-up treatments. For medical abortion, the package rate is set at ₹1,500 which includes consultation and USG.
The main highlights of the amendment is as follows:
1. Enhancing the upper gestation limit from 20 to 24 weeks for special categories of women which will be defined in the amendments to the MTP Rules and would include survivors of rape, victims of incest and other vulnerable women (like differently-abled women, minors) etc.
2. Opinion of only one provider will be required up to 20 weeks of gestation and of two providers for termination of pregnancy of 20-24 weeks of gestation.
3. Upper gestation limit not to apply in cases of substantial foetal abnormalities diagnosed by Medical Board. The composition, functions and other details of Medical Board to be prescribed subsequently in Rules under the Act.
4. Name and other particulars of a woman whose pregnancy has been terminated shall not be revealed except to a person authorised in any law for the time being in force.
5. The ground of failure of contraceptive has been extended to women and her partner.
Definition of “termination of pregnancy
The act defines “termination of pregnancy” as a procedure to terminate a pregnancy by using medical or surgical methods.
Termination of a pregnancy
Termination of pregnancy of length less than 20 weeks, with the opinion of a registered medical practitioner; and
Termination of pregnancy of length 20 – 24 weeks, the opinions of two registered medical practitioners will be required.
Conditions that allow termination of pregnancy include
The following are pre-requisite conditions for legal abortion (section 3 of the medical termination of pregnancy Act, 1971):
1. The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
2. There is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.
3. Any pregnancy occurs as a result of the failure of any device or method used by any woman or her partner to limit the number of children or prevent pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
4. Any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
The provisions relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board, which is to be constituted by the State government as per prescribed norms.
Protection of privacy of a woman
No registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated under this Act except to a person authorised by any law for the time being in force.
Whoever contravenes the provisions of sub-section (1) shall be punishable with imprisonment which may extend to one year, or with a fine, or with both, as may be prescribed by rules.
As per the doctor can perform an abortion in the following situations:
Who needs to be satisfied that the conditions have been fulfilled to get an abortion?
Þ If the pregnancy has not exceeded 12 weeks (first trimester), only one doctor needs to be satisfied that the conditions have been fulfilled.
Þ If the pregnancy has exceeded 12 weeks and is below 20 weeks (first trimester), two doctors need to be satisfied that the conditions have been fulfilled.
Þ The gestation period does not matter if the doctor feels that an immediate abortion must be conducted to save the mother’s life.
Þ The doctor who determines if it is necessary to perform an abortion and performs it needs to be a ‘registered medical practitioner’ under the law.
Abortion cannot be done because the sex of the foetus is female.
Þ It is a crime to get an abortion because parents or their families do not want a girl child. If they get an abortion after they come to know the sex of the foetus, they can be punished with jail time of up to three or seven years depending on the stage of pregnancy (Section 312 IPC 1860).
Þ It is a crime to conduct any kind of test or procedure (like an ultrasound) to try and make sure the foetus is of a particular sex or to check the sex of the foetus under another law called the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. Any procedure or technique performed on a man or woman for the purpose of sex selection is illegal. Since abortion of female foetuses is illegal in India, the parents and their doctor both can be punished for this. The law only allowed to get such tests or procedures to detect certain abnormalities of the foetus or if the mother is above 35 years of age or if she suffers from certain health-specific problems.
Punishment for illegal abortion
Þ Abortion of under 4 to 5 months pregnancy- The punishment for getting an illegal abortion is jail time of up to 3 years and/or a fine. Parents and their doctors are considered to have committed a crime unless it was done in good faith to save the mother’s life.
Þ Abortion of over 5-month pregnancy- If abortion takes place when a mother can sense the movement of the foetus, the punishment is higher. This is generally known as quickening and usually takes place between 17 and 20 weeks. Parents and their doctors can be punished with jail time of up to seven years and a fine unless it was done in good faith to save a mother’s life.
Þ Abortion without mother’s consent- If anyone else (including the father of the child) forces the mother to have an abortion or performs one without the mother’s agreeing to it, the punishment is jail time of up to 10 years and a fine.
Þ Abortion resulting in death- If a mother dies because of a botched abortion or an abortion carried out by an unskilled person, the doctor who conducted the operation can be punished with jail time of up to 10 years and a fine. If the abortion was conducted without the mother’s permission, the punishment is a jail for life.
Þ Intentionally causing the death of a foetus can also be prosecuted under other provisions of the Indian Penal Code, 1860 under which the punishment can extend up to 10 years
If pregnancy is a result of the non-working of contraceptives, can be legally terminated?
In such a situation where contraceptives did not work and the mother did not want to have more children. The doctor has a legal duty to assume in such cases that the pregnancy affects the mother’s mental health gravely.
If the mother’s permission essential to carry out an abortion?
The doctor has a duty to get the mother’s consent to perform the abortion. If the mother is below 18 (a minor) or a person with mental illness, the doctors have a duty to get her guardian’s permission as well. If a doctor performs an abortion without such consent, he or she can be punished with a jail term extending up to 10 years and a fine.
