Context
- On International Safe Abortion Day, the Supreme Court of India (SC) issued a landmark decision granting unmarried and single women with pregnancies ranging from 20 to 24 weeks access to safe and legal abortion care on par with married women.
- The Supreme Court loosened the grip of a 51-year-old abortion law, the Medical Termination of Pregnancy (MTP) Act of 1971 and its Rules of 2003, which prohibits unmarried women between 20 and 24 weeks pregnant from aborting with the assistance of registered medical practitioners from doing so.
Relevance
GS-II: Governance, Rights based issues, laws, women
Mains Question
Examine various issues in India’s abortion law in the context of The Medical Termination of Pregnancy (Amendment) Act 2021. (250 words)
Medical Termination of Pregnancy Act (MTP):
- The 1971 MTP Act:
- It was introduced to liberalise abortion access because the restrictive criminal provision (in the IPC) was causing women to use unsafe and dangerous methods of pregnancy termination.
- The Act permitted a medical practitioner to terminate a pregnancy in two stages.
- A single doctor’s opinion was required for abortions up to 12 weeks after conception.
- Two doctors’ opinions were required for pregnancies between 12 and 20 weeks old.
- In the second case, doctors must determine whether continuing the pregnancy would endanger the pregnant woman’s life or cause physical or mental abnormalities in the child.
- The 2021 MTP (Amendment) Act:
- For pregnancies up to 20 weeks, the law permitted termination based on the opinion of one doctor.
- The amended law requires the opinion of two doctors for pregnancies between 20 and 24 weeks.
- The government has issued the new Medical Termination of Pregnancy (Amendment) Rules, 2021, which define the situations that define eligibility criteria for termination of pregnancy up to twenty-four weeks, rather than the previous upper limit of twenty weeks.
- For the second category (i.e. 20- 24 weeks), the amended act and the MTP (Amendment) Rules, 2021 specified seven categories of women (Survivors of sexual assault, rape, or incest; Minors; and so on) who would be eligible for seeking pregnancy termination for a period of up to 24 weeks.
- While the law recognises changes in a pregnant woman’s relationship status with her spouse (dissolution and widowhood), it does not address the situation for unmarried women between 20 and 24 weeks pregnant.
Unmarried women:
- Why is the preceding law not applicable to unmarried women?
- The MTP is not a law that protects women’s reproductive rights; rather, it establishes red lines that medical practitioners must not cross when performing abortions.
- When the MTP Act was passed in 1971, it was primarily framed through a moralistic lens emphasising married women.
- The 2021 amendment hasn’t changed that opinion, because the majority of these mothers are married women with no reason to hide their pregnancy.
- Despite the fact that Indian law is widely regarded as progressive, particularly in comparison to many other countries (such as the United States), where abortion restrictions are severe – both historically and currently.
- The case of an unmarried woman: Previously, a 25-year-old unmarried woman moved the Supreme Court against the Delhi High Court’s decision, seeking to abort or terminate a pregnancy of more than 23 weeks. She also challenged Rule 3B of the MTP Rules, which allows only certain categories of women to seek termination of pregnancy between 20 and 24 weeks.
- The case has raised serious questions about India’s reproductive rights framework, as well as the recognition of female autonomy and agency.
The Supreme Court’s decision in the preceding case:
- The Supreme Court went above and beyond the law by allowing the woman to terminate her pregnancy.
- Denying an unmarried woman the right to a safe abortion, according to the Supreme Court, violates her personal autonomy and freedom.
- According to Article 21 of the Indian Constitution, a woman’s right to reproductive choice is inextricably linked to her personal liberty.
- The 2021 Medical Termination of Pregnancy (Amendment) Act addressed the “continuing crisis” of unsafe abortions.
- The Parliament of India intended to include unmarried women and single women within the Act’s scope by replacing the word “husband” with “partner” in Section 3(2) of the MTP (Amendment) Act, 2021.
- As a result, excluding unmarried and single women from the statute’s scope contradicts the intent of the legislation.
- Later, the Supreme Court stated that it might loosen the grip of a 51-year-old abortion law that prohibits unmarried women from terminating pregnancies up to 24 weeks old. This is due to the fact that approximately 8 women die in India every day as a result of unsafe abortions.
- According to research, 67% of abortions performed in the United States between 2007 and 2011 were unsafe.
- One of the reasons was that unmarried women from low-income families had no choice but to abort unwanted pregnancies in unsafe or illegal ways.
- The Supreme Court’s recent landmark decision expanded the scope of the term “reproductive rights” by linking reproductive rights of women to their bodily autonomy.
- Women’s reproductive rights included a slew of rights, entitlements, and liberties. It wasn’t just about having or not having children.
- Reproductive rights include the right to o Receive contraception and sexual health education and information.
- Choose whether or not to use contraception.
- Decide whether or not to have children, as well as the number of children.
- The right to an abortion that is both safe and legal.
- Women must have the freedom to make decisions about their rights without fear of coercion or violence.
- The right to reproductive autonomy, dignity, and privacy guaranteed by Article 21 of the Indian Constitution gives an unmarried woman the same right as a married woman to choose whether or not to bear a child.
- The court ruled that denying abortion care to single or unmarried pregnant women with pregnancies between 20 and 24 weeks while allowing it to married women was a violation of the right to equality before the law and equal protection (Article 14).
- A single pregnant woman may have experienced the same “change in material circumstances” as a married pregnant woman, according to the court.
- During her pregnancy, she could have been abandoned, unemployed, or a victim of violence.
- Her life may be jeopardised as a result of foetal abnormalities.
- She could have been a victim of sexual exploitation, which resulted in the pregnancy.
- In some cases, she may have become pregnant due to contraceptive failure, leaving her in mental anguish.
- A statute’s beneficiaries should not be determined by the law based on narrow patriarchal principles about what constitutes permissible sex.
- Because this would result in unfair classifications, a forward-thinking interpretation of the law is required.
- Because the POCSO Act requires registered medical practitioners to notify police when a minor approaches them for an abortion, many minors and their guardians have abortions performed by unqualified doctors.
- The court stated that the provisions of the MTP and POCSO laws must be harmonised so that minors can seek abortions from registered doctors without fear of being exposed.
- The Supreme Court ruled that registered medical doctors are exempt from disclosing the identities of minors who have come in for abortions to police.
- It would protect the minor’s right to privacy and reproductive autonomy under Indian Constitution Article 21.
