Date: 03/10/2022

Relevance: GS-2: Issues relating to development and management of Social Sector/Services relating to Health, Education, and Human Resources.

Key Phrases: Medical Termination of Pregnancy Act, 1971, intrinsic right to choose, Section 3B of the Rules, Seven different categories of women.

Context:

• The SC has extended the right to safe and legal abortion up to 24 weeks to unmarried and single women.
• It said that it is the right of every woman to make reproductive choices without interference from the state.

Background

• The historic judgment of the Supreme Court Bench led by Justice D.Y. Chandrachud that unmarried women in a consensual relationship are also entitled to safe and legal abortion.
• Judgment came along with its strong emphasis on women’s right to bodily autonomy without the need for authorization from a third-party to access abortion.
• It is being welcomed as “progressive” and a “ray of hope” at a time sexual and reproductive rights have come under threat globally.

What does the law on abortion say?

• The Medical Termination of Pregnancy Act allows termination of pregnancy by a medical practitioner in two stages.
  • After a crucial amendment in 2021, for pregnancies up to 20 weeks, termination is allowed under the opinion of one registered medical practitioner.
  • For pregnancies between 20-24 weeks, the Rules attached to the law prescribe certain criteria in terms of who can avail termination. It also requires the opinion of two registered medical practitioners in this case.
• For pregnancies within 20 weeks, termination can be allowed if:
  1. The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
  2. There is a substantial risk that if the child was born, it would suffer from any serious physical or mental abnormality.
• Termination within 20 weeks is allowed 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.

Who falls in the category of women allowed to terminate pregnancy between 20-24 weeks?

• For pregnancies between 20-24 weeks, Section 3B of the Rules under the MTP Act lists seven categories of women:
  1. Survivors of sexual assault or rape or incest;
  2. Minors;
  3. Change of marital status during the ongoing pregnancy (widowhood and divorce);
  4. Women with physical disabilities (major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016);
  5. Mentally ill women including mental retardation;
  6. 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
  7. Women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.

Court’s Interpretation of the Act

• This ruling interprets the provisions of the Medical Termination of Pregnancy Act, 1971 in a progressive manner and questions the unreasonable classification made by this law.
• This interpretation is the law of the land and will ensure that single women seeking abortion beyond 20 weeks cannot be refused on the grounds of the narrowness of the law.
• The judgment followed a petition seeking inclusion of unmarried women within the ambit of Rule 3 B of the Medical Termination of Pregnancy Rules 2003 amended in 2021 for abortion between 20-24 weeks of gestation period.
• The rule defines seven different categories of women who could access abortion within this gestation period, including survivors of sexual assault or rape or incest, minors and women with change of marital status during an ongoing pregnancy.
• Such women have to obtain permission from two doctors, who have to be of the opinion that the continuance of the pregnancy could either risk the life of the woman, or the child.
• For an abortion upto 20 weeks, permission from one doctor is sufficient.

Oppositions from Activists

• Activists and advocates often rue that the right to abortion is not an absolute one in India, but conditional, and women have no agency as they have to seek the permission of a medical practitioner.
• The SC recognized this gap, calling it a “provider-centric” law, and asserted that 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”.
• The court also liberally interpreted Section 3 B and said a variety of changes in “material circumstances” could be grounds for seeking abortion between 20-24 weeks.
  • For instance, when “a woman loses her job or if domestic violence is perpetrated against her or if she suddenly has dependents to support”.
  • Or when she is “diagnosed with an acute or chronic or life-threatening disease which impacts her decision on whether to carry the pregnancy to term.”

What is the effect of the judgment?

• The court’s “purposive interpretation” states that the common thread in Rule 3B is “a change in a woman’s material circumstance”.
• While the ruling recognizes the right of unmarried women, it leaves the enforcement of the right to be decided on a case-to-case basis.
• It is not possible for either the legislature or the courts to list each of the potential events which would qualify as a change of material circumstances.
• Suffice it to say that each case must be tested against this standard with due regard to the unique facts and circumstances that a pregnant woman finds herself in,” the ruling states.
• This means the decision will be in the hands of the registered medical practitioners — and if unsatisfied, the woman can approach the court.

A Ray of Hope

• At a time when sexual and reproductive health and rights are under threat globally, this progressive judgment stands out as a ray of hope.
• This judgment could be a step towards making our abortion regime more liberal and pro-women.
• The law must recognize abortion as a woman’s choice, as is the practice in over 70 countries.
• We need to ensure our laws don’t reflect any moral judgment on women who choose to abort.
• The Population Foundation of India also recommends increasing the gestation period for all women as medical technology advancements have shown that abortion beyond 20 weeks is safe and certain foetal abnormalities can only be detected after 20 weeks.

Source:  The Hindu  Indian Express

Mains Question:

Q. The new Medical Termination of Pregnancy (Amendment) Act 2021 expands the access to safe and legal abortion services on therapeutic, eugenic, humanitarian and social grounds to ensure universal access to comprehensive care. Discuss. [150 Words].