What India’s abortion law says and why an unmarried, pregnant woman is challenging it in SC

The woman has appealed to the Supreme Court for permission to abort her nearly 24-week-old foetus. As per the Medical Termination of Pregnancy (Amendment) Act 2021, unmarried women aren’t permitted abortions post the 20-week stage

As America sees the overturning of the significant Roe v Wade decision, which allowed for abortions, a woman in India has moved the Supreme Court on Tuesday in a case which raises questions about the laws in the country, as well as recognising female autonomy.

A 25-year-old unmarried woman has approached the Supreme Court for permission to abort her foetus of nearly 24 weeks. Responding to the woman’s plea, Chief Justice N V Ramana said, “We have just been informed by you about your petition. Let us see. We will consider listing it.”

Here’s what the woman’s case is all about and why she had to move the apex court on the abortion.

The case

Last week, the 25-year-old woman had approached the Delhi High Court, seeking permission to terminate her foetus of 23 weeks and five days.

According to Indian Express, the woman, a permanent resident of Manipur living in Delhi, told the court that the pregnancy was a result of a consensual relationship, but that her partner then refused to marry her when she was around 18 weeks pregnant.

She also spoke of the social stigma as well as her mental and financial constraints that were leading to her wish to terminate the pregnancy. Her counsel argued that since the law allowed recently divorced and widowed women to opt for an abortion at 24 weeks, it is discriminatory not to extend the same right to an unmarried woman whose pregnancy arose out of a consensual relationship.

The Delhi High Court in its order refused the woman’s plea, asking the woman to rather put up her child for adoption. “We will not permit you to kill that child. (We are) very sorry. This virtually amounts to killing (the foetus),” it observed.

In its 16 July order, a division bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad said that “unmarried woman whose pregnancy arises out of a consensual relationship” was not covered under the categories of women mentioned in the Medical Termination of Pregnancy Rules, whose pregnancy can be terminated above the 20 weeks.

“As of today, Rule 3B of the Medical Termination of Pregnancy Rules, 2003, stands, and this Court, while exercising its power under Article 226 of the Constitution of India, 1950, cannot go beyond the Statute. Granting interim relief now would amount to allowing the writ petition itself,” the HC said, as per a report in LiveLaw.

Unsatisfied with the court’s decision, the woman has now approached the doors of the top court of India asking for an urgent plea, arguing she has been going through immense mental trauma and that every day’s delay is costing her physically and psychologically.

What the law says on abortion

Until the 1960s, abortion was illegal in India and a woman could face three years of imprisonment and/or a fine under Section 312 of the Indian Penal Code (IPC).

It was in the mid-1960s that the government set up the Shantilal Shah Committee and asked the group, headed by Dr Shantilal Shah, to look into the matter of abortions and decide if India needed a law for the same.

Based on the report of the Shantilal Shah Committee, a medical termination bill was introduced in Lok Sabha and Rajya Sabha and was passed by Parliament in August 1971. The Medical Termination of Pregnancy (MTP) Act, 1971 came into force on 1 April 1972 and applied to all of India except the state of Jammu and Kashmir.

The 1971 law was founded on the principles of the British Act passed by its parliament in 1967.

As per the law, a medical termination was permitted for married women:

a) where the length of the pregnancy does not exceed 12 weeks

b) where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, in this situation by the views of the two medical professionals in good conscience

c) where the prolongation of the pregnancy can pose a significant risk to a woman’s health if the doctor’s opinion is formed in good faith

d) when there is an apprehension that an infant born out of this pregnancy would be vulnerable to adverse well-being and will be impaired, depending on the doctor’s opinion.

In 2021, Parliament amended the MTP Act, 1971 to further empower women by providing comprehensive abortion care to all.

Under the new law, a pregnancy could be terminated up to 20 weeks by a married woman in the case of failure of contraceptive method or device. It also allows unmarried women to also terminate a pregnancy for this reason.

For pregnancies between 20 and 24 weeks, the amended law requires the opinion of two doctors.

The government under the new law also set up seven categories of women who would be eligible for termination of pregnancies between 20 and 24 weeks.

Section 3B of Rules prescribed under the MTP Act reads: “The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of subsection (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

(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.”

With inputs from agencies

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