A decisive shift in the discourse on abortion rights

The Supreme Court’s judgment has put the spotlight on women and their rights, encapsulating all the concerns that exist about the legal regime on abortion in India

Updated - October 04, 2022 12:36 pm IST

Published - October 04, 2022 12:08 am IST

A progressive jurisprudence

A progressive jurisprudence | Photo Credit: Getty Images/iStockphoto

Recently, a single woman, residing in Delhi, approached the Delhi High Court seeking permission to terminate her 22-week-old pregnancy. The reason for her wanting a Medical Termination of Pregnancy (MTP) at this stage was a change in her personal circumstances — her partner did not want to support her and the pregnancy anymore and she did not want to continue this journey on her own because of her practical realities.

The Delhi High Court refused her permission by referring to the recently amended provisions of the MTP Act, which recognised the need for a request for an MTP by an unmarried woman on the grounds of contraceptive failure; however, this was only till 20 weeks of gestational limit. A change in circumstance was available, as per the law, only for a married woman up to 24 weeks.

The woman filed an appeal before the Supreme Court of India, which in the first instance, granted her permission to terminate the pregnancy based on the report of the medical board concerned. It also heard the case on the aspect of the constitutionality of the classification based on the marital status of a woman that the law, particularly the rules, has created.

Progressive judgment

The day of the judgment started with bits and pieces of information coming in about the Supreme Court judgment on access for termination of pregnancy services for women up to 24 weeks irrespective of their marital status. What was not expected was a judgment keeping the pregnant person at the centre of it despite the law being provider-centric, and to read a judgment that beautifully encapsulates all the concerns that exist about the legal regime on abortion in India. For this, one has to thank the top court of India for providing women a ray of hope.

There are five key aspects of this judgment that need to be shared.

First, it acknowledges the context of criminality in which access to abortion in India is — the Indian Penal Code criminalises accessing and providing an abortion except where there is an immediate necessity to save the life of the pregnant woman, and that the MTP Act is an exception to this criminal offence. This means that any termination of pregnancy that does not fall within the realm of the MTP Act is an offence under the IPC. By doing this, the judgment contextualises the narrow space within which abortion is legalised in the country.

Second, the judgment holds unconstitutional the distinction that the law, through the rules, has made between a married pregnant woman and an unmarried pregnant woman. The judgment basically holds that what is accessible and available for a married pregnant woman should be accessible and available to any pregnant woman, and that a classification based on marital status is fallacious and illegal.

The third aspect is an acknowledgement that a pregnancy which is a result of rape can be one due to forced sexual intercourse within a marriage, and while the issue of marital rape being recognised as an offence is before the Supreme Court, that a pregnancy can be sought to be terminated on the ground of it being as a result of rape by the husband of the pregnant woman must be recognised. In this, the judgment basically reiterates that you cannot make a distinction between a woman who is pregnant because of rape only on the grounds of her marital status. Thereby acknowledging that a distinction made on the basis of marital status where it discriminates against the single woman and where it discriminates against the married woman on the issue of access to abortion is unreasonable.

The fourth aspect is an acknowledgement of concerns with accessing safe and legal MTP services that adolescent girls who have indulged in consensual sexual activity and seeking an abortion face due to the provisions of mandatory reporting to the police as in the Protection of Children from Sexual Offences (POCSO) Act. This judgment clarifies that while the need to report mandatorily remains, the identity of the pregnant person need not be disclosed in the cases of consensual sexual activity and where the minor and/or her guardian request the medical service provider to maintain confidentiality.

The fifth aspect is a recognition of the fact that the law in its current form is non-inclusive and the terminology used is exclusionary. It also recognises the extra-legal requirements that medical practitioners insist upon before providing MTP services, only to safeguard themselves due to the context of criminality.

About rights

Finally, the judgment has created progressive jurisprudence which interprets an otherwise medical law from the point of view of the rights of the persons accessing the services, even though it has not been acknowledged as a right yet, and is conditional. While doing this, the Court has placed a reliance on the various rulings of the Court itself, which have upheld bodily autonomy and the right to dignity and decision making in various aspects.

The Court has also woven in this jurisprudence its reliance on the international commitments and obligations of India in ensuring safe and legal access to sexual and reproductive health and rights that include abortions.

This judgment is a ray of hope and brings to the fore the possibility of the law acknowledging the right of every person capable of becoming pregnant to be able to decide what she thinks is best for her without the need for any third party authorisation, and only supported by medical advice.

The Supreme Court of India’s judgment has put the spotlight on women and their rights, encapsulating all the concerns that exist about the legal regime on abortion

Anubha Rastogi is an advocate based in Mumbai and works on issues of sexual and reproductive health and rights

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