The Supreme Court of India had allowed unmarried women to have an abortion at 24 weeks, but recently the Delhi High Court refused to allow abortion in such a case, citing the provisions of the Medical Termination of Pregnancy (MTP) Act.
Delhi High Court Status
The Medical Termination of Pregnancy Act the Act only allowed married women to have an abortion after 20 weeks, so unmarried women would not be allowed to have an abortion.
It refers to Rule 3B of the Medical Termination of Pregnancy Rules, 2003, as it seeks to change the marital status of the woman and excludes live-in relationships and unmarried women.
Supreme Court decision
The bench said that the Explanation to Section 3 of the provisions of the MTP Act, as amended in 2021, includes the word “partner” instead of “husband”, indicating the intention of Parliament to limit the conditions arising out of marital relations only.
It also said that the petitioner cannot be denied the benefit of the law on the ground that she was unmarried and to do so would be contrary to the “purpose and spirit” of the law.
Further, the bench directed the Director of All India Institute of Medical Sciences (AIIMS) to set up a medical board of two doctors to examine the woman (as per the provisions of the MTP Act) whose function is to determine whether it is safe. Whether or not and also to ensure that there is no danger to the life of the mother in case of abortion.
If they are of the opinion that it is safe to do so, AIIMS may allow that process to go ahead.
Abortion Laws in the Indian Context:
Historical perspective:
Abortion was illegal in India until the 1960s and a woman was subject to three years’ imprisonment and/or fine under Section 312 of the Indian Penal Code (IPC).
In the mid-1960s, the government formed the Shantilal Shah Committee and a group headed by Dr. Shantilal Shah was asked to investigate abortion and decide whether India needed a law for it.
A Medical Termination Bill was introduced in Lok Sabha and Rajya Sabha based on the report of Shantilal Shah Committee and was passed by Parliament in August 1971.
The Medical Termination of Pregnancy (MPT) Act, 1971 came into force on 1st April, 1972 which was applicable to the whole of India except the state of Jammu and Kashmir.
Further, Section 312 of the Indian Penal Code, 1860, voluntarily causing an abortion with the consent of the pregnant woman is also an offense to “cause abortion”, except when the abortion is performed to save the life of the woman.
This means that the woman herself or any other person including the doctor can be prosecuted for abortion.
Introduction:
The Medical Termination of Pregnancy Act (MTP) 1971, the Act allowed termination of pregnancy by a physician in two stages:
A doctor’s opinion was required for abortions up to 12 weeks after conception.
According to this law, abortion can legally be performed only in special circumstances, such as when there is danger to the life of the woman, there is a danger to the physical and mental health of the woman, pregnancy has been caused by rape, The child has not developed properly in the womb and there is a fear of being disabled. In the context of pregnancies between 12 and 20 weeks, the opinion of two doctors was necessary to determine all these things.
Recent Revisions:
In the year 2021, Parliament changed the law to allow abortion on the basis of a doctor’s advice for pregnancies up to 20 weeks.
Under the amended law, the opinion of two doctors is required for pregnancy between 20 and 24 weeks.
Further, for pregnancies between 20 and 24 weeks, the rules specify seven categories of women who would be eligible to seek termination under section 3B of the rules prescribed under the MTP Act.
In the event of sexual assault or rape
Minor
Widow and divorce circumstances ie pregnancy at the time of change in marital status
Women physically handicapped (major disability as per norms prescribed under the Rights of Persons with Disabilities Act, 2016)
Mentally ill women with mental retardation
fetal malformation that carries a substantial risk of being incompatible with life or, if the child is born, may be seriously handicapped, suffering from physical or mental abnormalities,
Women with pregnancy on humanitarian grounds or in disasters or emergencies.
Challenges related to MTP Act:
While the law recognizes changes in the marital status of a pregnant woman to divorce and widowhood with her spouse, it does not address the situation of unmarried women.
It is a highly regulated process whereby the law transfers the decision-making power of the pregnant woman to the Accredited Medical Practitioner (RMP) and it is at the discretion of the RMP whether an abortion should be performed or not.
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