On 29 September last year, the Supreme Court of India delivered a judgement that expanded the interpretation of the Medical Termination of Pregnancy Act (MTP Act). A three-judge bench ruled that all women have the the right to abortion, irrespective of their marital status, between 20-24 weeks of pregnancy.
Earlier, in July a 25-year-old unmarried woman who was around 22 weeks pregnant at the time petitioned the Delhi High Court for permission to terminate her pregnancy as "her partner had refused to marry her at the last stage." She was wary of "social stigma and harassment," her financial constraints that affected her abilities to "raise and nurture the child as an unmarried mother," and she felt the continuation of her unwanted pregnancy would involve a risk of grave and immense injury to her mental health.
The Delhi HC denied her permission because unmarried women were not covered under the MTP Act. While the MTP Act says that the consent of two registered medical practitioners is needed for termination of pregnancies between 20-24 weeks, these terms could only be availed of by the special categories of women as listed in the Medical Termination of Pregnancy Rules, 2003: rape survivors, minors, women with physical disabilities or mental retardation, women who became widows or divorcees during pregnancy, and women in disasters or emergencies.
The petitioner then appealed to the Supreme Court, and an interim order was issued in her favour. Her abortion was conducted safely after approval from registered medical practitioners. The judges then continued to consider the "substantial question of law" - about who does the law grant the right to abortion and under what circumstances.
No distinction on the basis of marital status
Dismissing "narrow patriarchal principles" that assume "permissible sex" is only between a married couple, the SC held that the marital status of a woman should have no bearing on her right to abortion. The SC also took cognisance of the fact that these patriarchal ideas often lead to unmarried pregnant persons availing unsafe abortions, leading to a heightened risk of complications and maternal mortality.
Driving home the need for a realisation of the right to reproductive health, the judgement stated, "The law in modern times is shedding the notion that marriage is a precondition to the rights of individuals and that changing social mores must be borne in mind when interpreting a law. As society changes and evolves, so must our mores and conventions. A changed social context demands a readjustment of our laws."
Abortion for survivors of marital rape
The SC extended the right to abortion for marital rape survivors as well. The court asserted that all non-consensual intercourse, even in marital relationships, falls within the "ordinary meaning of rape." “The nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry. The institution of marriage does not influence the answer to the question of whether a woman has consented to sexual relations," read the order.
At present, Section 375 of the Indian Penal Code (IPC) carries an exception to say non-consensual sex by a husband does not constitute rape. In May, the Delhi High Court passed a split verdict on criminalising rape. That case has been listed for a Supreme Court hearing next month. In the meantime, this judgement has called the distinction a "legal fiction." It added, "The meaning of rape must therefore be understood as including marital rape, solely for the purposes of the MTP Act and any rules and regulations framed thereunder."
The SC also said a rape survivor need not have formal legal proceedings or a first information report to register or prove the allegations of rape for termination of pregnancy.
Safe abortion for minors
The judgement has also paved the way for making abortions more accessible for minors. Currently, the Protection of Children from Sexual Offences (POCSO) Act, 2012, regards as sexual activity between minors, even when consensual, to be a criminal offence. It also mandates criminal punishment for anyone who fails to inform the police about any slightest knowledge or even an apprehension about such a sexual activity between minors. As a result, registered medical practitioners cannot terminate pregnancies for minor girls without informing the police.
In this case, however, the judges stepped in to note that for the purpose of the MTP Act, a registered medical practitioner need not inform the police if the minor and their guardian request a termination of pregnancy. This need not involve any disclosing of identity or personal details of the minor. Reiterating that such a move would cater to the rights of privacy and reproductive autonomy of the minor under Article 21 of the Constitution, the judgement also states that "it could not possibly be the legislature's intent to deprive minors of safe abortions."
Including trans-persons and non-binary persons
The SC made a significant observation about inclusion in the MTP Act. The judgement mentioned, "we use the term 'woman' in this judgment as including persons other than cis-gender women who may require access to safe medical termination of their pregnancies." With this, the judgement expanded the ambit of the right to abortion to trans-persons and gender non-binary persons.
It is pertinent to note that the MTP Act of 1971, its 2002 amendment and the Rules, and even the 2021 amendment, all refer to persons seeking termination of pregnancy as women. That term was supposedly meant to refer to only cis-gender women. The only progress, however, was the replacement of the term 'husband' with 'partner' in 2021.
Material circumstances of the pregnant person
The SC elaborated on a whole gamut of situations that might make a pregnant person not want to continue with their pregnancy. The MTP Rule 3B(c) states that a "change in the marital status during the ongoing pregnancy (widowhood and divorce)" renders women eligible for termination of their pregnancy. The judges interpreted this in a broader sense by establishing that a pregnant person may have a change in their material circumstances that may or may not have any link with their marital status. This included change in marital or relationship status like divorce, abandonment, or even death of one's partner; being diagnosed with acute or chronic disease; foetal anomalies; domestic violence; or loss of employment.
In doing so, the SC emphasised that "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." This could be a big step towards eventual autonomy for pregnant persons in many more decisions about abortions.
Accessibility and affordability
The SC took cognisance of the fact that reproductive autonomy is situated within social contexts. "It is not only social stigma which prevents women from realising the right to health but also caste and economic location." The judgement laid bare problems of accessibility and affordability of safe abortions for all. It noted that private hospitals offer abortions at exorbitant costs, and public hospitals are not always equipped to provide safe abortions for free or at a subsidised rate. The right to reproductive autonomy is "meaningless" without access to affordable healthcare services.
It implored the State to ensure better healthcare infrastructure access for all. Further, it added that it is the duty of the State to ensure information about safe sex and contraception, and educate the registered medical practitioners to "treat all patients equally and sensitively."
It is pertinent to note that the history of the law on the medical termination of pregnancy in India did not quite emerge with a rights-based imagination. The language of the law did not conform to 'every pregnant person has the right to abortion' but rather to the idea that the State and the medical practitioner can decide which pregnant person is eligible to get an abortion, and under what conditions.
With this ruling of the Supreme Court, there is a possibility for a broader imagination of abortion access. However, we still have a long way to go for a full realisation of abortions as a person's right. For that, it is essential to acknowledge reproductive autonomy in the true spirit of this judgment's wordings:
"The ambit of reproductive rights is not restricted to the right of women to have or not have children. It also includes the constellation of freedoms and entitlements that enable a woman to decide freely on all matters relating to her sexual and reproductive health. 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."