The Supreme Court (SC) in a significant judgment on September 29 declared that single women with pregnancies between 20 and 24 weeks are entitled to access the same safe and legal abortion care as married women.
- A three-judge Bench comprising Justices D Y Chandrachud, A S Bopanna, and J B Pardiwala framed the interpretation of Rule 3B of the Medical Termination of Pregnancy (MTP) Rules, 2003, as per which only some categories of women are allowed to seek termination of pregnancy between 20-24 weeks under certain extraordinary circumstances.
Key observations of Supreme Court
- It is unconstitutional to distinguish between married and unmarried women for allowing termination of pregnancy on certain exceptional grounds when the foetus is between 20-24 weeks.
- The court expanded on Rule 3B(a) — “survivors of sexual assault or rape or incest” — to include married women in its ambit.
- Although it does not have the effect of striking down the marital rape exception under the Indian Penal Code, the ruling said that even women who have suffered “marital assault” can be included under the provision.
- Rule 3B is violative of Article 14 of the Constitution to discriminate between married and unmarried women in terms of right to abortion.
Background
- The challenge to the Rule 3B of the Medical Termination of Pregnancy Rules, 2003 was made in July 2022 by a 25-year-old unmarried woman who moved the court seeking an abortion after the Delhi High Court declined her plea.
- The woman’s case was that she wished to terminate her pregnancy as “her partner had refused to marry her at the last stage”.
- She argued that the continuation of the pregnancy would involve a risk of grave and immense injury to her mental health. The law allowed such change in circumstances only for “marital” relationships.
About Medical Termination of Pregnancy (MTP) Act
The MTP Act allows termination of pregnancy by a medical practitioner in two stages:
- After a crucial amendment in 2021, for pregnancies up to 20 weeks, termination is allowed under the opinion of one registered medical practitioner.
- For pregnancies between 20-24 weeks, the Rules prescribe certain criteria in terms of who can avail termination. It requires the opinion of two registered medical practitioners in this case.
For pregnancies within 20 weeks: Termination can be allowed if: a) 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 b) there is a substantial risk that if the child was born, it would suffer from any serious physical or mental abnormality.
- ‘Partner’ word added: The phrase “any woman or her partner” was also introduced in 2021 in place of the earlier “married woman or her husband”. By eliminating the word “married woman or her husband” from the scheme of the MTP Act, the legislature intended to clarify the scope of Section 3 and bring pregnancies which occur outside the institution of marriage within the protective umbrella of the law.
- For both stages — within 20 weeks and between 20-24 weeks: Termination is allowed “where 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”.
Termination of pregnancy between 20-24 weeks: For pregnancies between 20-24 weeks, Section 3B of the Rules under the MTP Act lists 7 categories of women:
- (1) survivors of sexual assault or rape or incest;
- (2) minors;
- (3) change of marital status during the ongoing pregnancy (widowhood and divorce);
- (4) women with physical disabilities (major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016);
- (5) mentally ill women including mental retardation;
- (6) 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
- (7) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.”
