SC favours to include unmarried women under abortion law

7 August 2022

NEW DELHI: Insisting on a "forward-looking" approach, the Supreme Court has opined that any discrimination between married and unmarried women in respect of medical termination of pregnancy law in India that does not allow a single woman to go for abortion after 20 weeks, violates her personal autonomy.

A Bench of Justices DY Chandrachud and JB Pardiwala said it will interpret the Medical Termination of Pregnancy (MTP) Act and the related rules to see if unmarried women could be allowed to abort upto 24-week pregnancy on medical advice.

"There has to be a forward-looking interpretation of the (MTP Act and Rules) law in view of the advancement made in the medical field," said the apex court.

The upper limit for the termination of pregnancy is 24 weeks for married women, special categories -- including survivors of rape and other vulnerable women such as the differently-abled and minors; the corresponding window for unmarried women in consensual relationships is 20 weeks.

The bench asked Additional Solicitor General Aishwarya Bhati, appearing for the Centre, to assist the court in the exercise. It has now posted the case for hearing on August 10.

"When there are exceptions provided under the law, then why unmarried women can't be included to terminate 24-weeks pregnancy if the medical advice permits so? The parliamentary intent appears to be clear as it has replaced 'husband' with 'partner'. It shows that they have considered unmarried women also in the bracket of those allowed to terminate 24-weeks pregnancy," Justice Chandrachud said.

The apex court questioned if a married woman is allowed to terminate upto 24 weeks of pregnancy under the Medical Termination of Pregnancy [MTP] Act, 1971, and the Rules framed under it, why denying the same to unmarried women, even though the risk is same for both.

The bench said it can strike down the restrictive clause "for being manifestly arbitrary", which in turn would allow extending the benefit of terminating pregnancy above 20 weeks to unmarried women also.

At the outset, the top court was informed that a 25-year-old woman, who was allowed to terminate her 24-week pregnancy on July 21, is safe after a successful procedure.

Earlier, the bench had observed that a woman can't be denied abortion benefits merely on the ground that she is unmarried and allowed a woman to terminate her 24-week-old pregnancy subject to AIIMS Delhi concluding that the foetus can be aborted without risk to her life.

It said allowing the woman to suffer an unwanted pregnancy will be contrary to the object and spirit of the legislation.

It had noted that after the 2021 amendment in the Act, it uses the word 'partner' instead of 'husband' in the explanation to Section 3 of the Act and said that this shows the legislative intent to cover "unmarried woman" under the Act.

"The use of words 'woman or her partner' shows an intention to cover unmarried woman which is in consonance with Article 14 of the Constitution," the bench opined.

The 25-year-old woman had approached the apex court after the Delhi High Court declined to grant permission to abort her pregnancy which had arisen out of a consensual sexual relationship, saying that it virtually amounts to killing the foetus.

In her plea, the woman said she is unmarried and her partner "ditched" her at the last moment (about 18 weeks of pregnancy). Social stigma coupled with mental and financial constraints compelled her to approach the court to terminate the pregnancy at an advanced stage, her counsel contended.

The High Court on July 15 said that permitting abortion at this stage would virtually amount to killing the foetus and asked the woman to rather put up her child for adoption.

"We will not permit you to kill that child. (We are) very sorry. This virtually amounts to killing (the foetus)," HC had observed.

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