All Women, Married Or Unmarried Have Right To Safe Abortion, Differentiating Them Would Violate Constitution- SC

The Court also held that excluding unmarried women who conceive out of a consensual relationship from the Medical Termination Pregnancy Rules is unconstitutional.

"The whole tenor of the MTP Act is to provide access to safe and legal medical abortions to women," the Bench held while noting that the Medical Termination of Pregnancy Act 2021 is intended to extend the benefits of the statute to all women including single and married.

The Court, in its judgment has also held that marital rape would also form a part of 'Rape' for the purpose of the Medical Termination of Pregnancy Act and Rules and the wife conceiving out of forced sex can also seek an abortion. (read report)

Counsel Dr. Amit Mishra appeared for the Appellant while ASG Aishwarya Bhati appeared for the Respondent before the Court.

The issue that was dealt with by the Court was –

• Whether Rule 3B of the Medical Termination of Pregnancy Rules includes unmarried women, single women, or women without a partner under its ambit.

*Rule 3B of the MTP Rules lists the categories of women whose pregnancy can be terminated within 20-24 weeks.

Equal status of married, unmarried, or single women

The Court referred to the statutes enacted by the Parliament through which balance was sought to be maintained between married and unmarried women which includes – Maternity Benefit Act that was enacted to provide maternity benefits to women employed in any establishment. In terms of Section 5 of the Maternity Benefit Act 1961, the payment of maternity benefits is extended to all women (including unmarried women) by the use of the phrase "every woman.

Further Hindu Succession Act was also referred to by the Court in which a daughter irrespective of her marital status is coparcener in her own right in the same manner as son.

Further, Hindu Adoptions and Maintenance Act was also referred to by the Bench.

"Through the above enactments, the law has emphasized that unmarried women have the same rights as married women in terms of adoption, succession, and maternity benefits. Importantly, these legislations also signify that both married and unmarried women have equal decisional autonomy to make significant choices regarding their own welfare," the Court held.

The Bench placed reliance on the judgment of the Bombay High Court in High Court on its Own Motion v. State of Maharashtra in which it was held that compelling a woman to continue any unwanted pregnancy violates a woman's bodily integrity, aggravates her mental trauma and has a deleterious effect on the mental health of the woman because of the immediate social, financial and other consequences flowing from the pregnancy.

The Court held that ultimately it is the prerogative of each woman to evaluate her life and arrive at the best course of action, in view of the changes to her material circumstances.

"If Rule 3B(c) was to be interpreted such that its benefits extended only to married women, it would perpetuate the stereotype and socially held notion that only married women indulge in sexual intercourse, and that consequently, the benefits in law ought to extend only to them. This artificial distinction between married and single women is not constitutionally sustainable. The benefits in law extend equally to both single and married women," the Court observed.

Right to Reproductive Autonomy

The Court held that the decision to have or not to have an abortion is borne out of complicated life circumstances, which only the woman can choose on her own terms without external interference or influence. Reproductive autonomy requires that every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorization from a third party.

While noting that the foetus relies on the pregnant woman's body for sustenance and nourishment until it is born, the Court held –

"…the decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman."

Right to dignity

The Bench observed that if women with unwanted pregnancies are deprived of autonomy only over their bodies but also over their lives would be an affront to their dignity.

"The right to choose for oneself – be it as significant as choosing the course of one's life or as mundane as one's day-to-day activities – forms a part of the right to dignity. It is this right which would be under attack if women were forced to continue with unwanted pregnancies."

Thus, the Court held, "A narrow interpretation of Rule 3B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 of the Constitution. Article 14 requires the state to refrain from denying to any person equality before the law or equal protection of laws. Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14."

The Court also held that the rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing as a married woman.

Background

The Court was dealing with a case of a 25-year unmarried woman who was 23 weeks and 5 days pregnant and had earlier approached the Delhi High Court seeking termination of her pregnancy that arose out of a consensual relationship. The woman could not give birth to the child since she was unmarried and her partner had refused to marry her. The High Court, however, had refused interim relief to her.

Aggrieved, she had approached the Supreme Court. The Apex Court had allowed her to terminate her pregnancy for which a medical board was also constituted by AIIMS Delhi which had given its approval for the procedure to be carried out.

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