Background:

Recently a 25 year old woman residing in Delhi sought the Delhi High Court’s permission for termination of 23 weeks and 5 days pregnancy. Though she admitted that the pregnancy is the result of consensual relationship but fears stigmatisation being a single, unmarried woman as her partner has refused to marry her.

The two-judge bench of the Delhi High court declined the medical termination of pregnancy last week citing that the legislature has “purposefully excluded consensual relationship” from the category of cases where termination is permissible after 20 weeks and up to 24 weeks. The judges suggested that the woman be kept ‘somewhere safe’ until she delivers the child and subsequently give the child for adoption.

The woman moved the Supreme Court after her plea was declined by Delhi HC last week. She challenged Rule 3B of ‘The Medical Termination of Pregnancy Rules,2003’ that allows only some categories of women to seek termination between 20 and 24 weeks.

The Medical Termination of Pregnancy Act (MTP) 1971:

The restrictive Section 312 of Indian Penal Code,1860 criminalises voluntarily’ causing miscarriage’ even with the woman’s consent except when the miscarriage is caused to save her life. This criminal provision promoted use of unsafe and dangerous methods to terminate pregnancy. Therefore the MTP Act,1971 was introduced.

Objective of the Act was to provide greater reproductive rights to women as abortion is considered an important aspect of the reproductive health of women. Deaths and injuries from unsafe abortions are largely preventable provided services are performed legally by trained practitioners.

The MTP Act, 1971 preamble states that ‘an Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto’. The preamble is very clear in stating that termination of pregnancy would be permitted in certain cases.

Stages for Termination of Pregnancy:

The Act allows the termination of pregnancy by a medical practitioner in two stages:

1. Termination up to 12 weeks from conception where opinion of one doctor is required.
2. Termination between 12-20 weeks that requires opinion of two doctors. They have to determine “if 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” or there is a ‘substantial risk’ that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously “handicapped”.

MTP (2021) Amendment Act:

The 2021 Amendment allowed for the termination under the opinion of one doctor up to 20 weeks pregnancies and opinion of 2 doctors for pregnancies between 20-24 weeks.

For 20-24 weeks, following 7 categories are eligible for seeking termination.

1. Survival of sexual assault or rape or incest.
2. Minors.
3. Change of marital status during the ongoing pregnancy(widowhood and divorce).
4. Women with physical disabilities (major disabilities under The Rights of Persons with Disabilities Act,2016).
5. Mentally ill women including mental retardation.
6. The foetal malformation
7. Women with pregnancy in humanitarian settings or disaster or humanitarian settings or disaster or emergency situations as may be declared by the Government.

The law however does not envisages the change in circumstances of relationship status of unmarried woman although it recognises it for divorce and widowhood.

Gaps still in 2021 Amendment Act:

• A 2021 report ‘ Legal barriers to accessing safe abortion services in India’ noted that Parliamentary debates on MTP act showcased a concern among the legislators that a liberal abortion law might promote sexual promiscuity among women. Therefore the Parliament was assured that the greatest number of women who seek abortion are ‘married’.
• Secondly MTP Act is a Provider protection law that transfers the decision making power from a pregnant woman to Registered Medical Practitioner to ascertain whether abortion should be carried out or not.

Supreme Court Ruling in this case:

Last week, the Supreme Court Of India allowed an unmarried woman to end her pregnancy at 24 weeks, after the Delhi High Court refused to allow it, expanding the scope of the MTP Act. The Supreme Court order is subject to a medical board constituted by the AIIMS Delhi concluding that the foetus can be aborted without risk to the life of the woman.

“A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution and she has a sacrosanct right to bodily integrity,” the Supreme court said.

The SC was of the view that allowing the petitioner to suffer an unwanted pregnancy would be contrary to the intent of the law enacted by Parliament.

Some Facts from ‘State of the World Population Report,2022’:

• Unsafe abortions are the third leading cause of maternal mortality in India and close to 8 women die from causes related to unsafe abortions each day, according to the United Nations Population Fund (UNFPA)’s State of the World Population Report 2022.
• Women between the ages of 15–19 are at the highest risk of dying from an abortion-related complication, the report adds.
• The UNFPA has propounded that increasing access and use of modern contraceptive methods in India as well as creating awareness especially among adolescent girls through sex education, is the only way to curb unintended pregnancies and unsafe abortions..

Author:

Samridhi Mamgain