The story so far: Last week, the Supreme Court of India allowed an unmarried woman to end her pregnancy at 24 weeks, after the Delhi High Court refused to allow it, citing the provisions of the Medical Termination of Pregnancy (MTP) Act. The top court said if a medical board assessed that the pregnancy could be terminated without any harm to the mother, then she could go ahead and have an abortion.
What was the Delhi High Court’s position?
The 25-year-old unmarried woman came to the Supreme Court on appeal after the Delhi High Court turned down her plea to allow her to have a medical termination of her pregnancy because the terms of her relationship with her partner had changed.
Her plea was that she had had a consensual relationship with her partner, but he had refused to marry her after she discovered her pregnancy at about 22 weeks. Being unmarried and raising a child carries a stigma in society and therefore she would like to terminate her pregnancy, she said.
The Delhi High Court had taken the view that she was unmarried and since the Medical Termination of Pregnancy Act allowed only married women to terminate the pregnancy after 20 weeks, she would not be eligible to get an abortion. The Court said it would amount to killing the foetus, since she was in the 23rd week of her pregnancy. “As of today, Rule 3B of the Medical Termination of Pregnancy Rules, 2003 stands, and this court, while exercising its power under Article 226 of the Constitution of India, 1950, cannot go beyond the statute,” it observed in its order on July 15.
The bench of Justices Satish Chandra Sharma and Subramonium Prasad suggested she give birth to the child and offer up the child for adoption. “We will ensure that she is kept somewhere in a safe hospital and she can deliver and go. There is a big queue for adoption… Everything will be looked after by the Government of India or (the) government of Delhi or some good hospital. If the government does not pay… I am there to pay,” Justice Sharma said.
What did the Supreme Court decide?
The Supreme Court, however, took an expansive view of the issue. A bench of Justices D.Y. Chandrachud, Surya Kant, and A.S. Bopanna said the MTP Act which was amended in 2021 has the word partner instead of husband, exhibiting the intention of the law of the land to not confine it to only marital relationships. The judges said that the petitioner cannot be denied the benefit of the law, on the ground that she was unmarried, and that doing so would be contrary to the ‘object and spirit’ of the legislation.
The judges noted compassionately that the woman had also stated that she was the eldest of five siblings in a family of agriculturists, and had a B.A. degree without an adequate income. This would make it difficult for her to raise the child by herself.
Comment | Still a long way for termination as an unconditional right
Further, the bench directed the director of the All India Institute of Medical Sciences (AIIMS) to set up a medical board of two doctors to examine the woman (as per the provisions of the MTP Act) to determine if it was safe and not a risk to the life of the mother to terminate the pregnancy. If it is their opinion that it is safe to do so, then AIIMS can conduct the procedure on her.
What lies ahead?
While disallowing her petition, the Delhi High Court ordered notice to the government on the woman’s contention that not allowing an unmarried woman (3B of MTP Act) to get rid of her unwanted pregnancy was per se discriminatory.
As per the MTP Act, all women are allowed to get a medical termination of pregnancy before 20 weeks. But only certain categories of women are allowed to have an abortion between 20 and 24 weeks — survivors of rape, minors, and a married woman whose relationship status has altered during this period.
The Supreme Court’s expansion of the law to include unmarried women as part of the MTP Act has given women in similar circumstances an option now to access healthcare services without having to travel the long legal route to the top court every time.
- Last week, the Supreme Court of India allowed an unmarried woman to end her pregnancy at 24 weeks, after the Delhi High Court refused to allow it, citing the provisions of the Medical Termination of Pregnancy (MTP) Act.
- A bench of Justices D.Y. Chandrachud, Surya Kant, and A.S. Bopanna said the MTP Act which was amended in 2021 has the word partner instead of husband, exhibiting the intention of the law of the land to not confine it to only marital relationships.
- As per the MTP Act, all women are allowed to get a medical termination of pregnancy before 20 weeks. But only certain categories of women are allowed to have an abortion between 20 and 24 weeks — survivors of rape, minors, and a married woman whose relationship status has altered during this period.
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