All women (married or unmarried) entitled to abortion till 24 weeks of pregnancy, says Supreme Court

All women (married or unmarried) entitled to abortion till 24 weeks of pregnancy, says Supreme Court

The Supreme Court ruled that all women are entitled to safe and legal abortion and that the distinction between married and unmarried women in this matter is unconstitutional. The Apex court said, unmarried women are also entitled to seek abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship.

What Supreme Court said?

A three-judge bench headed by Justice D.Y. Chandrachud also ruled that under the Medical Termination of Pregnancy Act, the definition of rape must include marital rape.

The Apex Court ruled that a woman’s marital status cannot be used to deny her the right to abortion, while also ruling that unmarried women have the right to terminate an unwanted pregnancy within 24 weeks.

The court said depriving single or unmarried women of the right to abort an unwanted pregnancy is a violation of fundamental rights.

“The rights of reproductive autonomy, dignity and privacy under Article 21 of the Constitution gives an unmarried woman the right of choice as to whether or not to bear a child on a similar footing as that of a married woman,” Justice Chandrachud held.

The court declared that prohibiting single or unmarried pregnant women with pregnancies between 20 and 24 weeks from accessing abortion while allowing married women with the same term of pregnancy to access the care was violative of the right to equality before law and equal protection (Article 14).

The court said the Medical Termination of Pregnancy (Amendment) Act of 2021 has addressed the “continuing crisis” of unsafe abortions. Close to eight women die everyday in India due to unsafe abortions.

Sixty-seven per cent of the abortions carried out in the country between 2007-2011 were classified unsafe by studies. One of the reasons, the Parliament was aware, was that women outside marriages and in poor families were left with no choice but use unsafe or illegal ways to abort unwanted pregnancies.

Hence, to address this issue, the 2021 amendments had included the word ‘partner’, showing that the law was not just concerned about women who undergo pregnancy within marriage, but outside marriage too. After all, the medical risk was the same for both married and unmarried women.

The court said the artificial distinction between married and unmarried women was not constitutionally sustainable. “The benefits of law extend equally to single and married women.

Reproductive Rights

“The decision to carry a pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy,” Justice Chandrachud observed, linking reproductive rights of women to their bodily autonomy.

The judgment expanded the ambit of the term “reproductive rights”. It was not restricted to to have or not children. ‘Reproductive rights’ of women included a “constellation of rights, entitlements and freedoms for women”.

Reproductive rights include the –

  • right to access education and information about contraception and sexual health
  • right to decide whether or what type of contraceptives to use
  • right to choose whether or when to have children
  • right to choose the number of children
  • right to choose safe and legal abortion

Background

The case arose when a 25-year-old unmarried woman approached the Delhi High Court seeking termination of her pregnancy at 23 weeks and 5 days, stating that her pregnancy arose out of a consensual relationship. However, she could not give birth to the child as she was an unmarried woman and her partner had refused to marry her. However, a division bench of the Delhi High Court refused interim relief to her.