December 3, 2022

The judgment on the abortion right of single mother- A further important addition in progressive Jurisprudence

Recently, there has been a lot of talk on the judgment of abortion right which was delivered by Justice D.Y. Chandrachud who is known for his progressive judgment. Many people hailed it as an important judgment in women rights law.

It is significant to note whereas American supreme court denied the right of abortion to women, Indian supreme court is further broadening this right and giving benefit of MTP act to even unmarried women.

This article present an analysis of that judgment.

To read amended MTP act analysis, Click here

What was the case?

The petitioner was a Manipur resident who was residing in Delhi. She was in consensual relationship but that relationship failed. In the month of June 2022, she found her pregnancy and through an ultrasound scan, a single intrauterine pregnancy of a term of twenty-two weeks, revealed. She was not in good financial condition to raise a child, So, she decided to terminate the pregnancy.

Case at High court

The petitioner first approached the High court and prayed in the petition that the high court should,

A. Permit the Petitioner to terminate her ongoing pregnancy through registered medical practitioners at any approved private or government center or Hospital before 15.07.2022 as her relief will be infructuous after that as the pregnancy will be of around 24 Weeks by that time;

B. Restrain the Respondent from taking any coercive action or criminal proceedings against the Petitioner or any Registered Medical Practitioner terminating the pregnancy of the petitioner at any approved private center or hospital registered by Govt NCT of Delhi;

C. Direct the Respondent to include unmarried woman also within the ambit of the Rule 3B of the Medical Termination of Pregnancy Rules 2003 (as amended on 21.10.2021) for termination of pregnancy under clause (b) of sub-section (2) Section 3 of the MTP Act, for a period of up to twenty-four weeks;

What are Sec. 3[2(b)] of MTP Act, 1971 and 3B of MTP Rules, 2003?

Section 3[2(b)] of MTP act, provide the situations under which the pregnancy of twenty weeks (5 months) or twenty-four weeks (6 months) may be terminated. It should be noted that the petitioner has completed 24 weeks of her pregnancy on 18 July 2022.

Sec. 3[2(b)] of MTP act, 1971

A pregnancy may be terminated by a registered medical practitioner where the length of the pregnancy does not exceed twenty weeks (5 months) and such medical practitioner is of the opinion, formed in good faith, that-

  1. The continuation of the pregnancy would involve risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
  2. There is substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

In above case, 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.

Where the length of the pregnancy exceeds twenty weeks (5 months) but does not exceed twenty-four weeks (6 months), in case of such category of woman, opinion of minimum two medical practitioners is required.

In determining whether the continuance of a pregnancy would involve such risk of injury to the health, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

Rule 3B of MTP Rules, 2003

Rule 3B is as follows:

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 Sec 3[2(b)] 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;

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has substantial risk of being imcompatible 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.

What High court decided?

The High Court held that since the petitioner was an unmarried woman whose pregnancy arose out of a consensual relationship, her case was clearly not covered by any of the above clauses of Rule 3B and, as a consequence, Section 3(2)(b) was not applicable.

How Supreme court decided the matter?

The court noted that high court took restrictive view in deciding the matter. But, Clause (c) speaks of a change of marital status during an ongoing pregnancy and is followed in parenthesis by the words widowhood and divorce. The expression change of marital status should be given a purposive rather than a restrictive interpretation. The expressions widowhood and divorce need not be construed to be exhaustive of the category which precedes it.

The fundamental principle of statutory interpretation is that the words of a statute must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act and the intent of the legislature. Parliament by amending the MTP Act through Act 8 of 2021 intended to include unmarried women and single women within the ambit of the Act. This is evident from the replacement of the word husband with partner in Explanation I of Section 3(2) of the Act.

Explanation 1 expressly contemplates a situation involving an unwanted pregnancy caused as a result of the failure of any device or method used by a woman or her partner for the purpose of limiting the number of children or preventing pregnancy. The Parliamentary intent, therefore, is clearly not to confine the beneficial provisions of the MTP Act only to a situation involving a matrimonial relationship.

On the contrary, a reference to the expression any woman or her partner would indicate that a broad meaning and intent has been intended to be ascribed by Parliament. The statute has recognized the reproductive choice of a woman and her bodily integrity and autonomy. Both these rights embody the notion that a choice must inhere in a woman on whether or not to bear a child.

In recognizing the right, the legislature has not intended to make a distinction between a married and unmarried woman, in her ability to make a decision on whether or not to bear the child. These rights, it must be underscored, are in consonance with the provisions of Article 21 of the Constitution.

In this case, the petitioner submits that she was deserted by her partner at the last stage in June 2022 causing her immense mental agony, trauma, and physical suffering. Excluding unmarried women and single women from the ambit of the statute goes against the purpose of the legislation.

What supreme court decided in the matter?

The court allowed the petitioner to terminate her pregnancy with special directions to the director of AIIMS, Delhi, and further added that allowing the petitioner to suffer an un- wanted pregnancy would be contrary to the intent of the law enacted by Parliament. Moreover, allowing the petitioner to terminate her pregnancy, on a proper interpretation of the statute, prima facie, falls within the ambit of the statute and the petitioner should not be denied the benefit on the ground that she is an unmarried woman. The petitioner had moved the High Court before she had completed 24 weeks of pregnancy. The delay in the judicial process cannot work to her prejudice.

Conclusion

A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of Constitution. She has a sacrosanct right to bodily integrity. In the case of Suchita Srivastava v Chandigarh Administration, 2009[1], supreme Court has recognized that a woman’s right to reproductive autonomy is a dimension of Article 21 of the Constitution:

“22. There is no doubt that a woman’s right to make reproductive choices is also a dimension of personal liberty as understood under Article 21 of the Constitution of India. It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected.

This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.”

The decision undoubtedly adds a progressive approach to women right jurisprudence and directed a new way to the interpretation of social legislation in India. Most of the time, our courts gave a purposive interpretation to the social legislation and giving such an interpretation will further open a new path for social legislation i.e. legislation which are directly related to the right to life of people.

After all, a person should have autonomy over his/her body and denying an unmarried woman the right to a safe abortion clearly violates her personal autonomy and freedom.

Reference

  1. Medical termination of pregnancy act, 1971
  2. X vs The Principal Secretary Health and Family Welfare Department, on 21 July, 2022

[1] (2009) 9 SCC 1