Supreme Court expands abortion rights to unmarried women: X vs. The Principal Secretary (2022)

Introduction

Date of the Judgment: July 21, 2022

Citation: (2022) INSC 659

Judges: Dr. Dhananjaya Y Chandrachud, J., Surya Kant, J., and A.S. Bopanna, J.

Can an unmarried woman be denied the right to terminate her pregnancy between 20 and 24 weeks, while married women are allowed? The Supreme Court of India addressed this crucial question in a recent case, examining the scope of the Medical Termination of Pregnancy Act, 1971 (MTP Act). The court considered whether the exclusion of unmarried women from accessing abortion services between 20 and 24 weeks was discriminatory and violated their fundamental rights. The bench comprised Justices Dr. Dhananjaya Y Chandrachud, Surya Kant, and A.S. Bopanna. The opinion was authored by Dr. Dhananjaya Y Chandrachud, J.

Case Background

The petitioner, a resident of Manipur, became pregnant in June 2022 through a consensual relationship. An ultrasound on July 5, 2022, revealed a 22-week pregnancy. The petitioner, the eldest of five siblings, with parents who are agriculturists, and holding a BA degree, decided to terminate the pregnancy due to the failure of her relationship and lack of financial resources to raise a child. She filed a writ petition before the High Court of Delhi seeking permission to terminate her pregnancy.

The High Court issued notice only on the prayer seeking inclusion of unmarried women within the ambit of Rule 3B of the Medical Termination of Pregnancy Rules, 2003 (MTP Rules), which allows for termination of pregnancy up to 24 weeks for certain categories of women. The High Court did not issue notice on the prayers seeking permission to terminate the pregnancy before July 15, 2022, and restraining the respondents from taking any coercive action against the petitioner or the medical practitioner terminating the pregnancy.

Timeline

Course of Proceedings

The High Court of Delhi issued notice limited to the prayer seeking the inclusion of unmarried women under Rule 3B of the MTP Rules. It did not issue notice on the prayers to terminate the pregnancy before July 15, 2022, and to restrain the respondents from taking any coercive action against the petitioner or the medical practitioner terminating the pregnancy. The High Court held that the petitioner’s case, being an unmarried woman with a consensual pregnancy, was not covered under Rule 3B of the MTP Rules and thus, Section 3(2)(b) of the MTP Act was not applicable. However, it did issue notice on the constitutional validity of Rule 3B, insofar as it excludes unmarried women.

Legal Framework

The Supreme Court examined Section 3 of the Medical Termination of Pregnancy Act, 1971.

Section 3(1) of the MTP Act states:

“Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.”

Section 3(2) of the MTP Act outlines the conditions under which a pregnancy can be terminated:

“(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,—
(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that—
(i) 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
(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.”

Explanation 1 to Section 3 of the MTP Act states:

“For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.”

Rule 3B of the MTP Rules lists the categories of women eligible for termination of pregnancy up to twenty-four weeks:

“3B. Women eligible for termination of pregnancy up to twenty-four weeks.- The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of sub-section(2) section 3 of the Act, for a period of up to twenty-four weeks, namely:-
(a) survivors of sexual assault or rape or incest;
(b) minors;
(c) change of marital status during the ongoing pregnancy (widowhood and divorce);
(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];
(e) mentally ill women including mental retardation;
(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and
(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.”

The court also noted that Section 3(2)(b) allows for termination of pregnancy between 20 and 24 weeks for categories of women prescribed by the rules made under the Act. The court observed that the MTP Act was amended in 2021 to replace the word ‘husband’ with ‘partner’ in Explanation 1 of Section 3(2), indicating a broader intent to include unmarried women.

Arguments

The petitioner argued that the exclusion of unmarried women from the ambit of Rule 3B of the MTP Rules is discriminatory and violates Article 14 of the Constitution of India. The petitioner contended that the MTP Act, as amended in 2021, intends to include unmarried women, as evident from the replacement of “husband” with “partner” in Explanation 1 to Section 3(2) of the MTP Act. The petitioner also argued that the denial of the right to safe abortion violates her personal autonomy and freedom under Article 21 of the Constitution.

The Additional Solicitor General, Ms. Aishwarya Bhati, assisted the Court on the interpretative aspects of Section 3(2)(b) of the MTP Act and Rule 3B of the MTP Rules.

The Court noted that the petitioner was deserted by her partner in June 2022, causing her immense mental agony, trauma, and physical suffering. The petitioner argued that denying unmarried women the right to terminate a pregnancy goes against the purpose of the MTP Act, which seeks to liberalize provisions related to termination of pregnancy as a health measure.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in this interim order, but the core issue before the court was:

• Whether unmarried women are eligible for termination of pregnancy between 20 and 24 weeks under Section 3(2)(b) of the MTP Act and Rule 3B of the MTP Rules.

Treatment of the Issue by the Court

Authorities

The Supreme Court relied on the following authorities:

• Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 19, Supreme Court of India: The court recognized that a woman’s right to make reproductive choices is a dimension of “personal liberty” under Article 21 of the Constitution.
• Justice K.S. Puttaswamy (Retd.) and Anr v. Union of India and Ors, (2017) 10 SCC 1, Supreme Court of India: The court recognized the decision of a woman to procreate or abstain from procreating as a facet of her right to lead a life with dignity and the right to privacy under Article 21 of the Constitution.
• High Court on its Own Motion v. State of Maharashtra, 2017 Cri LJ 218 (Bom HC); (2016) SCC OnLine Bom 8426, Bombay High Court: The court observed that a woman’s decision to terminate a pregnancy is not a frivolous one and forcing her to continue with the pregnancy represents a violation of her bodily integrity.
• S Khusboo v. Kanniammal, (2010) 5 SCC 600, Supreme Court of India: The court observed that criminal law should not be weaponized to interfere with the domain of personal autonomy and that notions of social morality are inherently subjective.

Judgment

The Supreme Court held that the High Court had taken an unduly restrictive view of Rule 3B(c) of the MTP Rules. The court stated that the expression “change of marital status” should be given a purposive interpretation and that the expressions “widowhood and divorce” are not exhaustive of the category. The court observed that the intent of the Parliament, by amending the MTP Act, was to include unmarried women within its ambit. The court emphasized that the statute recognizes the reproductive choice of a woman and her bodily integrity and autonomy, which are in consonance with Article 21 of the Constitution.

The Court noted that the petitioner was deserted by her partner, causing her immense mental agony. The Court observed that excluding unmarried women from the ambit of the statute goes against the purpose of the legislation. The court further stated that denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to uphold a woman’s reproductive rights, personal autonomy, and bodily integrity. The court emphasized that the MTP Act should be interpreted to include unmarried women, as the intent of the legislature was to provide a safe and legal means for women to terminate unwanted pregnancies. The Court also considered the mental and physical trauma faced by the petitioner, who was deserted by her partner.

Logical Reasoning

Key Takeaways

• Unmarried women are now included within the ambit of women who can seek termination of pregnancy between 20 and 24 weeks under the MTP Act.
• The term “change of marital status” in Rule 3B of the MTP Rules is to be interpreted broadly and not restrictively to only include widowhood and divorce.
• A woman’s right to reproductive choice is an integral part of her personal liberty under Article 21 of the Constitution.
• Denying unmarried women access to safe abortion violates their personal autonomy and freedom.

Directions

The Supreme Court directed the following:

1. The Director of the All India Institute of Medical Sciences (AIIMS), Delhi, was requested to constitute a Medical Board as per Section 3(2D) of the MTP Act by July 22, 2022.
2. If the Medical Board concluded that the fetus could be aborted without danger to the petitioner’s life, a team of doctors at AIIMS was directed to carry out the abortion after obtaining the petitioner’s written consent.
3. The report of the Medical Board was to be furnished to the Court within one week.

Development of Law

The Supreme Court’s judgment clarified that the term “change of marital status” in Rule 3B(c) of the MTP Rules should be interpreted broadly to include unmarried women. This interpretation expands the scope of the MTP Act to include unmarried women, recognizing their reproductive rights and personal autonomy. The court emphasized that the intent of the Parliament, by amending the MTP Act, was to include unmarried women within its ambit. This decision marks a significant development in the law, ensuring that unmarried women are not discriminated against in accessing safe abortion services.

Conclusion

The Supreme Court’s interim order in X vs. The Principal Secretary, Health and Family Welfare Department & Anr., has expanded the scope of the Medical Termination of Pregnancy Act, 1971, to include unmarried women seeking abortion between 20 and 24 weeks of pregnancy. The Court emphasized that a woman’s right to reproductive choice is an integral part of her personal liberty under Article 21 of the Constitution. This decision ensures that unmarried women are not discriminated against and have equal access to safe and legal abortion services.