Supreme Court Recognises Right of Unmarried Woman to Terminate her 24-Week Pregnancy

IN a significant order, the Supreme Court has held that denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom, more so when the court has recognized live-in relationships. A three-judge bench comprising Justices D.Y. Chandrachud, Surya Kant and A.S. Bopanna was hearing an appeal against the Delhi High Court’s refusal to allow an unmarried woman to terminate her 24 week pregnancy.

The bench disapproved the high court’s order and directed the All India Institute of Medical Sciences (‘AIIMS’), Delhi, to constitute a Medical Board to determine whether the foetus can be aborted without danger to the life of the petitioner. In the event that the Medical Board concludes that the foetus could be aborted without danger to the life of the petitioner, a team of doctors at AIIMS shall carry out the abortion, the bench directed.

Unjustified exclusion

The case involved interpretation of Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 (‘MTP Act’) and Rule 3B of the Medical Termination of Pregnancy Rules, 2003 (‘MTP Rules’). Section 3(2)(a) of the MTP Act permits the termination of pregnancy where the length of pregnancy does not exceed twenty weeks. Clause (b) of this sub-section permits termination where the length of pregnancy exceeds twenty weeks but does not exceed twenty-four weeks for such categories of women “as may be prescribed by Rules made under this Act”. However, an opinion must be formed by not less than two registered medical practitioners that inter alia “the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health”.

The Rules framed under the MTP Act for the purpose of “categories of women” as mentioned in section 3(2)(b) exclude ‘unmarried’ women. It, however, includes other categories of women such as divorcees, widows, minors, disabled and mentally ill women, and survivors of sexual assault or rape. It is on this ground that the Delhi high court refused to allow the petitioner to terminate her unwanted pregnancy.

In her petition before the high court, she sought a three-fold relief: permission to terminate the pregnancy, restraints on the Respondent from taking any coercive action or criminal proceedings against the petitioner or any registered medical practitioner terminating her pregnancy at any approved private centre or hospital registered by the Government of the National Capital Territory of Delhi, and a direction to the government to include unmarried woman also within the ambit of rule 3B of the MTP Rules.

Also read: When will abortion become a right for every pregnant person?

In an interim order, the high court did not deal with her first two prayers but held that since the petitioner is an unmarried woman whose pregnancy arose out of a consensual relationship, her case is “clearly not covered” by any of the above clauses of rule 3B and, as a consequence, section 3(2)(b) is not applicable. On the submission that rule 3B, insofar as it excludes an unmarried woman, is violative of Article 14 of the Constitution, the high court issued notice on the writ petition.

Observing that the high court took an unduly restrictive view of the provisions of clause (c) of rule 3B, the Supreme Court offered a two-fold reason.

Purposive interpretation

Firstly, it held that the provisions of the MTP Act should be given a purposive interpretation. It said the expression “change of marital status” in rule 3B should be given a purposive rather than a restrictive interpretation. The expressions “widowhood and divorce” need not be construed to be exhaustive of the category which precedes it.

To buttress its reasoning, the bench referred to Explanation 1 to Section 3(2), which contemplates a situation involving an unwanted pregnancy caused as a result of the failure of any device or method used by a woman or her partner for the purpose of limiting the number of children or preventing pregnancy. The bench emphasized on the word “her partner” to hold that the Parliamentary intent was clearly not to confine the beneficial provisions of the MTP Act only to a situation involving a matrimonial relationship.

“On the contrary, a reference to the expression “any woman or her partner” would indicate that a broad meaning and intent has been intended to be ascribed by Parliament. The statute has recognized the reproductive choice of a woman and her bodily integrity and autonomy. Both these rights embody the notion that a choice must inhere in a woman on whether or not to bear a child. In recognizing the right the legislature has not intended to make a distinction between a married and unmarried woman, in her ability to make a decision on whether or not to bear the child. These rights, it must be underscored, are in consonance with the provisions of Article 21 of the Constitution,” the bench held.

Also read: Abortion in India – still not a right but a privilege

Secondly, the bench highlighted the changes brought in by the Medical Termination of Pregnancy (Amendment) Act, 2021 in comparison to the 1971 Act. The phrase ‘married woman’ in the 1971 Act was replaced by ‘any woman’, and the word ‘husband’ was replaced by ‘partner’, yet there is a gap in the law which the bench pointed out. While section 3 of the MTP Act travels beyond conventional relationships based on marriage, rule 3B of the MTP Rules does not envisage a situation involving unmarried women, but recognizes other categories of women such as divorcees, widows, minors, disabled and mentally ill women, and survivors of sexual assault or rape. On this, the bench said that there is no basis to deny unmarried women the right to medically terminate the pregnancy, when the same choice is available to other categories of women.

Right to bodily integrity

“A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution. She has a sacrosanct right to bodily integrity”, the bench declared.

It thus admitted the petition and held that allowing the petitioner to suffer an unwanted pregnancy would be contrary to the intent of the law enacted by the Parliament.

“Moreover, allowing the petitioner to terminate her pregnancy, on a proper interpretation of the statute, prima facie, falls within the ambit of the statute and the petitioner should not be denied the benefit on the ground that she is an unmarried woman. The distinction between a married and unmarried woman does not bear a nexus to the basic purpose and object which is sought to be achieved by Parliament which is conveyed specifically by the provisions of Explanation 1 to Section 3 of the Act”, the bench held.

The ad interim direction of the Delhi high court declining to grant interim relief stood modified in the above terms.

Click here to read the full order of the Supreme Court.