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Article India: Supreme Court Rules All Woman, Irrespective of Marital Status, Have Equal Access to Abortion Up to 24 Weeks

On September 29, 2022, the Supreme Court of India ruled that all women, irrespective of marital status, have equal access to abortion up to 24 weeks of the gestation period. The case involved a 25-year-old unmarried woman who was around 22 weeks pregnant from a consensual relationship. (Final judgment para. 3.)

Legal Framework for Abortion in India

In India, abortions are regulated by the Medical Termination of Pregnancy (MTP) Act, 1971 and its related regulations and rules. Both the act and the rules were amended in 2021 by the Medical Termination of Pregnancy Amendment Act, 2021 and the Medical Termination of Pregnancy (Amendment) Rules, 2021.

Section 3 of the act lays out the statutory grounds under which pregnancies may be terminated by registered medical practitioners “where the length of the pregnancy does not exceed twenty weeks” (§ 3(2)(a)) or by two registered medical practitioners “where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks” (§ 3(2)(b)). The later ground is available to the following categories of women, which are stipulated under Rule 3B of the Medical Termination of Pregnancy (Amendment) Rules, 2021:

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c) change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.”

The practitioner(s) must be of the opinion, “formed in good faith,” that “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 “there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.” (§ 3(2)(b).)

Supreme Court Decision

The appeal arises from a judgment of a Division Bench of the High Court of Delhi where the appellant was seeking interim relief and was refused permission for an abortion on the grounds that section 3(2)(b) “was inapplicable to the facts of the present case” and that “the appellant, being an unmarried woman, whose pregnancy arose out of a consensual relationship, was not covered” by any of the sub-clauses of Rule 3B. (Final judgment para. 5.)  

On July 21, 2022, the Supreme Court issued an ad interim order allowing the woman to abort her pregnancy subject to approval by a medical board that “concludes that the fetus can be aborted without danger to the life of the petitioner.” (Ad interim order para. 22.) The court in its order states that the High Court has taken an “unduly restrictive view” of Rule 3B(c): “the expression ‘change of marital status’ should be granted a purposive rather than a restrictive interpretation” and “[t]he expressions ‘widowhood and divorce’ need not be construed to be exhaustive of the category which precedes it.” (Para. 14.)

The Supreme Court held in its final judgment that a purposive interpretation of the provisions must be adopted, that “there is no rationale for excluding unmarried or single women … from the ambit of Rule 3B,” and that a narrow interpretation “would render the provision discriminatory towards unmarried women” and violate Article 14 of the Constitution, which enshrines equality before the law and prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. The court also held that “[t]he rights of reproductive autonomy, dignity, and privacy under Article 21 [“Protection of Life and Personal Liberty”] give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman.” (Final judgment para. 121.)

The court also states that “[i]n determining whether the continuation of the pregnancy would involve grave danger to the pregnant woman’s physical or mental health, her actual or reasonably foreseeable environment may be taken into account.” Moreover, “significant reliance ought to be placed on each woman’s own estimation of whether she is in a position to continue and carry to term her pregnancy.” (Para. 14.) The court held that registered medical practitioners could not apply “extra-legal conditions such as consent from the woman’s family, documentary proofs, or judicial authorization” that have no basis in law. (Para. 22.)

Another significant observation made by the court was that for purposes of abortion, the terms “sexual assault” and “rape” in Rule 3B(a) include marital rape, which is otherwise excluded as a  crime under section 375 of the Indian Penal Code (IPC). However, the court clarified that this does “not have the effect of striking down” the exception under the section or “changing the contours of the offence of rape as defined in the IPC” because a challenge to the provision is pending consideration before a different bench of the court, and the court would thus leave the constitutional validity to be decided in that or another appropriate proceeding. (Para. 74.)

Rule 3B(b) includes minors as a category of women who may terminate their pregnancy up to 24 weeks. However, the Protection of Children from Sexual Offences Act (POCSO), 2012 criminalizes sexual activity (including consensual) by those below the age of 16, and a registered medical practitioner (RMP) is required under section 19(1) of the POCSO Act to provide information about the offense committed to the concerned authorities. (Para. 80.) The court held that “it is necessary to harmoniously read both the POCSO Act and the MTP Act,” and “[f]or the limited purposes of providing medical termination of pregnancy in terms of the MTP Act,” the RMP “need not disclose the identity and other personal details of the minor in the information” unless requested to do so by the minor and the guardian of the minor. Also the court held that RMPs are “also exempt from disclosing the minor’s identity in any criminal proceedings which may follow from the RMP’s report” under the POCSO Act. (Para. 81.)

Tariq Ahmad, Law Library of Congress
January 4, 2023

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Chicago citation style:

Ahmad, Tariq. India: Supreme Court Rules All Woman, Irrespective of Marital Status, Have Equal Access to Abortion Up to 24 Weeks. 2023. Web Page. https://www.loc.gov/item/global-legal-monitor/2023-01-03/india-supreme-court-rules-all-woman-irrespective-of-marital-status-have-equal-access-to-abortion-up-to-24-weeks/.

APA citation style:

Ahmad, T. (2023) India: Supreme Court Rules All Woman, Irrespective of Marital Status, Have Equal Access to Abortion Up to 24 Weeks. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2023-01-03/india-supreme-court-rules-all-woman-irrespective-of-marital-status-have-equal-access-to-abortion-up-to-24-weeks/.

MLA citation style:

Ahmad, Tariq. India: Supreme Court Rules All Woman, Irrespective of Marital Status, Have Equal Access to Abortion Up to 24 Weeks. 2023. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2023-01-03/india-supreme-court-rules-all-woman-irrespective-of-marital-status-have-equal-access-to-abortion-up-to-24-weeks/>.