By - King Stubb & Kasiva on April 21, 2023
In the case X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi[1], the Supreme Court has declared that all women possess an unassailable right to procure safe and lawful abortion. and any discrimination based on the marital status of a woman in relation to her right to undergo abortion would be deemed unconstitutional. Moreover, the Court has deemed it unconstitutional to draw a discriminatory distinction between married and unmarried women seeking to terminate their pregnancies in the range of 20 to 24 weeks of gestation arising from a consensual relationship.
Further, the Supreme Court asserted that every woman possesses the fundamental right to opt for abortion. The honourable bench, presided over by Justice DY Chandrachud, declared that single or unmarried women cannot be discriminated when it comes to seeking a safe abortion for pregnancies up to a duration of 24 weeks under the ambit of the Medical Termination Act[2] and its accompanying rules[3].
The apex court has also pronounced that the definition of rape for the purpose of abortion also incorporates marital rape. The court has ruled that it is unconstitutional to allow married women to have access to abortions while depriving single or unmarried pregnant women with pregnancies between 20-24 weeks of the same right. This disparity between the two class of women would infringe on the principles enshrined in Article 14, which calls for equality before the law.[4]
Furthermore, the Court has asserted that “the law needs to adapt to the changing social realities of our times, shedding the outdated notion that marriage is a prerequisite for the exercise of individual rights. The Medical Termination of Pregnancy Act must reflect the current realities of society and not be constrained by archaic norms, as the law must not remain stagnant.” Additionally, the Court has clarified that for the purposes of abortion, rape would encompass marital rape, thereby affording women a greater degree of protection and autonomy in making reproductive choices.
The Supreme Court has also elucidated that the intent of section 3(2) b of the Medical Termination of Pregnancy Act[5] and rule 3B is to enable women to terminate pregnancies between 20 to 24 weeks in situations where the pregnancy has become unwanted due to changes in the material circumstances of the woman. Therefore, the Court has ruled that it would be irrational to exclude unmarried or single women who are facing such material changes from the purview of rule 3B[6].
The Court has also stressed that “the interpretation of a statute should not be based on narrow and outdated patriarchal beliefs regarding what constitutes permissible sexual conduct. Instead, the law should uphold the fundamental rights of reproductive autonomy, dignity, and privacy enshrined in Article 21 of the Constitution[7].[8]” Accordingly, unmarried women possess the right to make choices concerning their reproductive health on an equal footing with their married counterparts
Moreover, the Court has asserted that married women can also be victims of sexual assault or rape and may require access to safe abortion services. And expressed apprehension regarding the prevalence of unsafe abortions, citing them as the third most common cause of maternal mortality in India. It has been revealed that 60% of abortions in India are unsafe, which can be attributed to the limited access to safe abortion services. The restrictive abortion practices and denial of access to safe abortion services perpetuate unsafe abortions, which are detrimental to women's health and well-being.
The Court has emphasized that a woman's claim of rape, even by her husband, suffices for allowing an abortion without the need for an FIR to be registered. By expanding the scope of the definition of rape, the Court has endeavoured to safeguard women's reproductive rights and well-being. This decision reinforces the importance of reproductive autonomy and the right to make informed decisions about one's own body.
The Supreme Court has further emphasized that the identity of a minor seeking abortion under the POSCO Act[9] need not be disclosed by registered medical practitioners. The court held that the intention of the legislature is not to deprive minors of medical termination of pregnancy (MTP). It further acknowledged that a woman's social circumstances can impact her decision to terminate.
The court also underscored the state's responsibility to disseminate information on reproduction and safe sexual practices to all segments of society. All segments of society must have access to contraceptives to prevent unintended pregnancies and plan their families. Moreover, medical practitioners must treat all patients equally and sensitively, without discrimination on the basis of caste, or other social or economic factors.In a show of determination, the court mulled over how to draft a judgment that would safeguard the bodily autonomy and dignity of unmarried women, allowing them to terminate their pregnancies and ensure parity in the law.
Earlier, in the case, the Supreme Court had passed an ad-interim order allowing the petitioner, an unmarried woman, to abort her 24-week pregnancy, subject to the AIIMS Delhi medical board's determination that the foetus could be aborted without endangering the woman's life.
In this landmark case, the Supreme Court had earlier passed an interim order allowing an unmarried woman to terminate her 24-week pregnancy, subject to the decision of a medical board constituted by AIIMS Delhi. The apex court has underscored the need to ensure parity, enabling unmarried women to exercise their right to bodily autonomy and dignity.
The apex court, adopting a progressive and future-oriented approach, that any differentiation between married and unmarried women under the medical termination of pregnancy legislation in India that restricts a single woman's right to seek abortion after 20 weeks, infringes upon her personal autonomy.
The judgment of the apex court raised a pertinent question: if married women are permitted to terminate their pregnancy up to 24 weeks under the Medical Termination of Pregnancy [MTP] Act, 1971, and its Rules, then why should unmarried women be denied the same, given that the risk involved is identical for both categories? which was further settled by the bench in this landmark judgmentby observing that the discriminatory clause "for being manifestly arbitrary", to be invalidated thereby extending the right to terminate pregnancy beyond 20 weeks to unmarried women as well.
The Supreme Court's decision to declare that all women have the right to safe and legal abortion sets a new precedent for abortion rights across the country. Depending on the existing laws in India, this decision may have significant implications for how abortion services are provided and regulated.
Women who are seeking access to safe and legal abortions now have a strong legal basis to challenge any laws or restrictions that may impede their access to reproductive healthcare. They can work with experienced lawyers to understand their rights and options, and to advocate for their own autonomy and well-being.
At KSK, our team of legal professionals is dedicated to helping women access a full range of reproductive healthcare services, enabling them to make informed choices about their lives. We take proactive measures to support women in safeguarding their reproductive rights and provide expert legal advice and support to those seeking abortions. Additionally, we work to challenge any circumstances that may compromise their rights or limit their access to care.
[1] Civil Appeal No. 502 of 2022 (Arising out of SLP (C) No. 12612 of 2022)
[2] Act No. 34 of 1971
[3]Rule 3B of the MTP Rules
[4] Article 14, The Constitution of India, 1950
[5] Act No. 34 of 1971
[6]Rule 3B of the MTP Rules
[7] Article 21, The Constitution of India, 1950
[8]Suchita Srivastava v. Chandigarh Administration 3 (2009) 9 SCC 1
[9] The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012)
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