The Supreme Court of India ruled that unmarried women have also the right to abortion. The judgment is considered a landmark decision as it paves the way for further court decisions adapted to “changing social mores”.
The Supreme Court of India in a judgment given on September 29 ruled that “all women are entitled to the benefit of safe and legal abortions,” marking a landmark decision for women’s rights in the country as it rejects several misinterpretations of the legislation about women access to abortion.
Interpretation and clarifications of law by the highest jurisdiction of India indeed paves the way for harmonized court decisions among various states of the Union. It notably clarified the ambit of the Medical Termination of Pregnancy Act, considering “the social realities of today” while not being “restricted by societal norms of an age which has passed into the archives of history.”
The right to abortion to all women
The right to abortion only granted to married women and not single women is actually an “artificial distinction” that is “not constitutionally sustainable”, the Supreme Court ruled. “The benefits in law extend equally to both single and married women” or else such distinction “would perpetuate the stereotype and socially held notion that only married women indulge in sexual intercourse.”
The Supreme Court judgment follows the case of an unmarried woman, aged about twenty-five years whose pregnancy started before the 20 weeks provided by the law for an abortion, seeking permission in Court to terminate her pregnancy last July. She was then denied the termination of her twenty-two-week pregnancy, which arose out of a consensual relationship, by the High Court of Delhi because she was not married. The High Court considered her case was not covered by the Medical Termination of Pregnancy Act.
She raised an appeal to the Supreme Court which modified the order and permitted her to terminate the pregnancy with medical assistance. Abortion was safely carried out for the woman before the end of the 24 weeks, the legal maximum for an abortion in India.
She had argued her “partner had refused to marry her at the last stage,” and was worried about “social stigma and harassment” pertaining to unmarried single mothers. She stated that the continuation of the unwanted pregnancy would involve a risk of grave and immense injury to her mental health, the Supreme Court ruling recalled. The oldest of five siblings, daughter of farmers, unemployed, she considered that she was not mentally prepared to “raise and nurture the child as an unmarried mother.”
“Every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorization from a third party,” the Supreme Court said. This right is related to the women’s right to dignity, “which would be under attack if women were forced to continue with unwanted pregnancies.”
The Medical Termination of Pregnancy Act was amended by the Central Government last year and the words “married woman or her husband” were actually eliminated from the law to make sure all women regardless of matrimonial status, including single and unmarried women, were protected by the law, the Supreme Court clarified.
Social stigma around pre-marital sexual relations
The amendments that came into force in September 2021 also extended abortion right from 12 to up to 20 weeks of pregnancy, and 24 weeks in some cases like after assault, rape or incest, for minors, foetal anomalies, mentally-ill women or pregnancy in humanitarian settings or emergency situations.
If much of the law’s benefits are still rooted in the institution of mariage, the law “in modern times is shedding the notion that marriage is a precondition to the rights of individuals” and should take into consideration the evolution of society when interpreting the provisions of the enactment.
By its order, the Supreme Court also tries to demystify other misconceptions of the law such as it would forbid adolescents from engaging in consensual sexual activity. And misconceptions about the law and societal taboos also have social consequences since it prevents young adults from attempting to access contraceptives during pre-marital sex, the Court points out.
Even if India sees lower adolescent fertility rate because of an overall increased use of contraceptive or modern family planning methods, the Court denounces social stigma around pre-marital sexual relations, lack of sexual education, lack of access of contraceptives, caste and economic location, which all prevent women from realizing the right to health.
Moreover, the Court explains there is no need for a woman to be raped to terminate a pregnancy, and that she is the only decision-maker when it relates to her body.
The Supreme Court adds that pregnant minors who want to conduct an abortion have the right not to disclose their identity. Under the Protection of Children from Sexual Offences Act, minors needed to provide identity information in case there was any criminal proceeding involved, which made young people wary of terminating pregnancies under safe and medically-assisted conditions. Guardians of minors need to agree on an abortion in India.
It also states that married women can be victims of rape because “contours of consent do not undergo a transformation when one decides to marry” or else it would miss recognition of intimate partner violence. The Court adds that it is “only by a legal fiction” that a law removes marital rape from the ambit of rape. However, the broader issue of marital rape of adult women, still considered an offense, was not dealt with since the issue was not specifically raised in this case. It leaves the judgment on constitutionality to a different bench which is working on such a case.
The judgment was unintentionally delivered on the International Safe Abortion day.