SC order on abortion strengthens body autonomy, but still a long way to go, say experts

Unmarried woman allowed to end pregnancy at 24 weeks; Might be a precedent for future cases

By Taran Deol
Published: Monday 25 July 2022
In India, an abortion is allowed until the 20 week mark for any woman. The duration can be extended to 20-24 weeks for seven circumstances. Photo: iStock

The Supreme Court of India has allowed an abortion at 24 weeks for an unmarried woman, underlining that marital status should not influence the right to terminate a pregnancy. Experts said the order strengthened the right to personal autonomy and freedom. 

The implementation of abortion in the case is subject to the decision of a medical board constituted by All India Institute of Medical Sciences, Delhi (AIIMS) — a group of autonomous government public medical universities. 

The panel will determine if terminating this pregnancy at this stage is medically safe for the woman. 

“We are of the view that allowing the petitioner to suffer an unwanted pregnancy will go against the parliamentary intent,” the court said in its order. 

“The benefits under the Medical Termination of Pregnancy (MTP) Act cannot be denied to the woman only on the basis of her being unmarried,” the bench of Judges DY Chandrachud, Surya Kant and AS Bopanna said. The MTP Act is the central law on abortion.

The distinction between a married and an unmarried woman has no nexus to the object sought to be achieved by the Parliament, the apex court further said. 

What the Delhi HC said

The 25-year-old petitioner, who is a resident of Manipur but lives in the national capital, had first moved the High Court of Delhi, seeking an abortion. 

However, the two-judge bench had noted aborting the foetus at this stage is equivalent to killing a child. 

“We will ensure that the girl is kept somewhere safe and she can deliver and leave. There is a big queue for adoption,” the bench, which also comprised Justice Subramonium Prasad, had observed. 

The SC bench noted the HC judgement as an “unduly restrictive” view of the abortion Act.

Abortions are allowed for anyone under the MTP Act until the 20-week mark, following the opinion of a registered medical practitioner

The duration is extended to 20-24 weeks for seven circumstances. Survivors of sexual assault, rape or incest; Minors and any change in the marital status such as widowhood and divorce during the pregnancy are some of the circumstances.

Women with physical disabilities or who are mentally ill are also allowed under the exception. 

Those carrying a malformed foetus that has a substantial risk of being incompatible with life are also under the exception, as are women with pregnancy in humanitarian settings, disasters or emergency situations as may be declared by the government.   

Many of these people may not be married, but the rules don’t explicitly say so.

Exclusion of unmarried women

“The spirit of the MTP Act was clearly not meant to exclude unmarried women,” Gita Sen, adjunct professor of global health and population at Harvard University, told Down To Earth (DTE).

As per this, the case of the 25-year-old petitioner fell into a grey area. 

While Rule 3B of the rules annexed to the MTP Act — which details the seven circumstances — talks about a change in marital status, it does not mention anything about an unmarried woman. 

Here, the apex court noted a 2021 amendment to the MTP Act, which replaced the word ‘husband’ with ‘partner’, thereby widening the ambit for these provisions.

The SC order is an interim measure allowing the petitioner to seek an abortion. 

“The Supreme Court will see whether this rule is constitutional or not and address the larger issue of allowing abortion at 24 weeks since the appeal has been admitted,” SC advocate Shruti Agarwal told DTE

She added that this case can be used as a precedent in the future.

Sen called the order a big relief and a major corrective to the high court order. “The Delhi High Court order was inappropriate. It was not only against the spirit of the MTP Act but also contained a lot of unnecessary and gratuitous remarks,” she said. 

The dissonance between the two orders indicates that the rules have been read in a way that restricts what the MTP Act provides, an observation made by the apex court as well. 

Stressing that the rules have to be modified to be in resonance with the law, Dr Nikhil Datar — a Mumbai-based gynaecologist — noted the SC order is only the beginning of the solution. 

Datar has also filed a petition to the SC, which points out these anomalies. “If it’s medically safe to have an abortion at 24 weeks for the seven categories mentioned in the rules, then this should be extended to all women,” he said. 

While the SC has allowed the 25-year-old petitioner to seek an abortion, she will only be able to do so following the approval of the AIIMS medical board. There is no scope for appeal once the decision has been made. 

The board constitutes only one gynaecologist, while the other two members are a paediatrician and radiologist, pointed out Datar.  

“There’s no doubt that a paediatrician and radiologist will be required to assist the gynaecologist, but their roles are limited,” he said. 

Under the MTP Act, only a registered medical practitioner (RMP) can recommend and carry out an abortion. Here, an RMP must have a Bachelor of Medicine, Bachelor of Surgery (MBBS) with a degree/diploma in obstetrics and gynaecology.

“The person performing the abortion has to be a gynaecologist, but the people who are deciding it are not,” he said.

On the larger front about the MTP Act, Sen underlines something which hasn’t been corrected in the amendment either — the requirement of an RMP’s opinion before termination. 

There are two pitfalls here — as far as women are concerned, this is a reproductive rights issue. “Women are being infantilised by making it necessary for there to be an RMP’s opinion,” Sen said. 

The second issue is in practical terms. “In India, 75 per cent of terminations are medication abortions. Given what we know about the availability of over-the-counter medication, such rules make no sense,” she added.

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