The Supreme Court on Thursday extended the right to safe and legal abortion to all women, irrespective of their marital status, up to 24 weeks of pregnancy under the Medical Termination of Pregnancy (MTP) Act.
The milestone judgment also for the first time recognised marital rape, strictly under the purview of the MTP Act. It said that marital rape has to be classified within the meaning of “rape” in order to save women from forceful pregnancy.
Delivering its judgment, the bench of Justices D Y Chandrachud, A S Bopanna and J B Pardiwala said that the right to reproductive choice for women is a facet of the right to personal liberty under Article 21 of the Constitution. This means that the right of safe reproductive healthcare is applicable to all women.
The judgment also clarified that provisions of MTP Act makes no discrimination between married and unmarried women. Until now, unmarried women were allowed to abort only until 20 weeks of pregnancy, while married women were granted up to 24 weeks.
The right to abort a foetus cannot be denied to a woman just because she is unmarried, the bench said.
Even before discussing the provisions of the MTP Act, the court clarified one critical aspect: that the term woman in the Act includes not just cis-gendered women but all those who identify as women. Cisgender means a person whose gender and identity corresponds with their birth sex.
The court also noted that due to a widespread misconception that termination of pregnancies of unmarried women is illegal in India, a woman and her partner might resort to carrying out abortion by an unlicensed medical practitioner, leading to a heightened risk of complications and maternal mortality.
“This is a sound judgment. If the girl is not a minor, she does not need the consent of anyone (partner or parents) to terminate her pregnancy. We, however, make sure the girl is safe in case of surgical complications. The gynaecologist has no right to ask questions about her marital status,” said Ankita Srivastava, consultant gynaecologist at Sir Gangaram Hospital in New Delhi.
“Reproductive rights include the right to access education and information about contraception and sexual health, the right to decide whether and what type of contraceptives to use, the right to choose whether and when to have children, the right to choose the number of children, the right to access safe and legal abortions, and the right to reproductive healthcare. Women must also have the autonomy to make decisions concerning these rights, free from coercion or violence,” the judgment said.
Payel Sen, a 26-year-old content producer, admitted that she was worried about the fate of unmarried women in India after the Roe vs Wade judgment was overturned in the US. “It is my body, and I will decide what I want to do with it. I hope this judgment will help reduce teenage suicides that result from pregnancies of unmarried women,” she said.
The court also noted that safe sexual practices are not just for the upper class but for all strata.”The government must ensure that registered medical practitioners treat all patients equally and sensitively. Treatment must not be denied on the basis of one’s caste or due to other social or economic factors,” the judgment said.