A 25-year-old unmarried woman was denied medical termination of pregnancy at 23 weeks by the Delhi High Court. 

In India, the Medical Termination of Pregnancy Act 1971 permits abortion under a very specific set of conditions. Under the guidelines of the Ministry of Health and Family Welfare, one can avail of abortion within 12 weeks with the approval of one doctor and only if it is carried out by a trained medical practitioner. If one’s pregnancy exceeds 12 weeks but is under 20 weeks, then it can be medically terminated with the approval of two doctors, as long as it is carried out by medical practitioners at a licensed institution. 

In India, the Medical Termination of Pregnancy Act 1971 permits abortion under a very specific set of conditions. Under the guidelines of the Ministry of Health and Family Welfare, one can avail of abortion within 12 weeks with the approval of one doctor and only if it is carried out by a trained medical practitioner. If one’s pregnancy exceeds 12 weeks but is under 20 weeks, then it can be medically terminated with the approval of two doctors, as long as it is carried out by medical practitioners at a licensed institution. 

The Medical Termination of Pregnancy Act, 2020, was passed to extend the upper limit of abortion from 20 weeks to 24 weeks only in case of foetal abnormality and pregnancy arising out of rape or incest. 

In the case in the discussion, the petitioner requested the Court to allow her to undergo medical termination of her pregnancy because her partner has refused to marry her. She stated that she is not ready to be a single mother, and carrying her pregnancy to term will cause her immense psychological and emotional stress. 

Chief Justice Satish Chandra and Justice Subramonium Prasad denied her plea, stating that medical termination of pregnancy arising out of a consensual relationship is not covered by any of the clauses of The Medical Termination of Pregnancy Rules, 2003. 

In the case in the discussion, the petitioner requested the Court to allow her to undergo medical termination of her pregnancy because her partner has refused to marry her. She stated that she is not ready to be a single mother, and carrying her pregnancy to term will cause her immense psychological and emotional stress. 

The Court also stated, “We will ensure that the girl is kept somewhere safe and she can deliver and go. There is a big queue for adoption.” 

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The Supreme Court’s landmark pro-choice judgement

On being denied a favourable hearing from the Delhi High Court, the petitioner’s lawyer decided to approach the Supreme Court with their client’s appeal. 

In the Supreme Court, Justice D Y Chandrachud, Justice Surya Kant, and Justice A S Bopanna ruled against “Denying an unmarried woman the right to a safe abort,”. Even though the Medical Termination of Pregnancy Act purposefully leaves out unmarried women from aborting pregnancy borne out of a consensual relationship, the landmark judgement of the Supreme Court strove to bridge the gap within its rules and make the law less discriminatory towards unmarried women. 

The Court stated, “While Section 3( of MTP Act) travels beyond conventional relationships beyond marriage. Rule 3B of the MTP Rules does not envisage a situation involving unmarried women but recognises other categories of women such as divorcees, widows, minors, disabled and mentally ill women, and survivors of sexual assault or rape. 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.” 

While this ruling by the Supreme Court of India is lauded by many as a progressive judgement, it calls for a close introspection on the stigmatisation of abortion in Indian society. As the United States overturned its landmark 1971 Roe v Wade judgement and criminalised abortion, it becomes all the more necessary to reassess how women’s bodily autonomy always exists in a state of reversibility. 

Even though this petitioner was granted permission to abort her unwanted pregnancy, the legislative approach to framing The Medical Termination Act must be examined, especially with how it conditions a woman’s ability to make decisions about her own body. 

Freedom to choose in the face of stigma and inaccessibility

Abortion should be a personal choice that every pregnant person must be able to make on their own. Allowing access to abortion only in certain cases such as rape, incest, divorce, or mental or physical illness implies that a woman’s body must be violated by external agents for her to be able to gain full control over her own body. 

If the onus of child-rearing and the mother-child life sustenance falls on the mother alone without any substantial contribution from the state to improve their situation, then it must be questioned why the state should hold any authority over the mother’s decision to abort her pregnancy if it suits her. 

Being forced to carry out a pregnancy, no matter how favourable her social and economic condition is, can be detrimental to one’s mental and physical health. The burden of childbearing at a young age often compromises a woman’s career and forces them back into the labour force. Children born out of unwanted pregnancy are more likely to be impoverished or abandoned to child labour. 

If the onus of child-rearing and the mother-child life sustenance falls on the mother alone without any substantial contribution from the state to improve their situation, then it must be questioned why the state should hold any authority over the mother’s decision to abort her pregnancy if it suits her. 

Being forced to carry out a pregnancy, no matter how favourable her social and economic condition is, can be detrimental to one’s mental and physical health. The burden of childbearing at a young age often compromises a woman’s career and forces them back into the labour force. Children born out of unwanted pregnancy are more likely to be impoverished or abandoned to child labour. 

Women’s bodies are still treated as a political playground no matter which political party comes to power in the parliament. In the 21st century, it should come as a shock that women’s bodily autonomy is still debated over and regulated by the state. 

Abortion is often stigmatised on religious grounds with severe social and moral currency attached to it. People who advocate for the criminalisation of abortion often argue that the foetus is a living child that must be protected at all costs. However, it is interesting to note that often political advocacy for the unborn remains limited to exercising control over the pregnant person’s body and provides no aid beyond that.

US-based Methodist Church pastor David Banhart says“The unborn” are a convenient group of people to advocate for. They never make demands of you; …they allow you to feel good about yourself without any work at creating or maintaining relationships; and when they are born, you can forget about them because they cease to be unborn. You can love the unborn and advocate for them without substantially challenging your own wealth, power, or privilege, without re-imagining social structures, apologising, or making reparations to anyone….” 

Easy access to abortion as a means to save lives

Research shows that around 80 per cent of women in India are not aware that abortion is legal in India. Every day 13 women die from health complications caused by unsafe abortion. Every year 6.4 million women attempt abortion in India. Unsafe abortion contributes 8 per cent of total maternal death causes, being the third leading cause of maternal deaths. 

Safe abortion should be made accessible to pregnant individuals as a basic healthcare service. It saves lives and allows individuals to make informed decisions regarding giving birth and raising a child with all their emotional and material needs met. 

Also read: A Comprehensive History Of Abortion Laws In India: 1971-2021

Abortion laws do not only affect cis women. Certain non-binary persons and trans men are also capable of getting pregnant, and in a country where the medical sciences are yet to be sensitised and made queer-friendly, it is all the more difficult for queer persons to access safe abortion. 

Also read: A Comprehensive History Of Abortion Laws In India: 1971-2021


Featured image source: Live Science

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1 COMMENT

  1. I like how diverse and varied in opinions this FII article is. It gives a wide range of perspectives from all the important fronts. What I loved the most about this article is that they have continued to use gender neutral terms while discussing the topic of abortion, something that people commonly only relate to cis women. It was refreshing to see non binary and trans people being included in this conversation as well.

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