The access to abortion is one of the most hotly contested topics globally,
and the debate is clouded by misinformation about the true ramifications of
restricting access. Preventing women and girls from accessing an abortion does
not mean they stop needing one.
That's why attempts to ban or restrict abortions do nothing to reduce the number
of abortions, it only forces people to seek out unsafe abortions. So much so
that unsafe abortions are the third leading cause of maternal deaths worldwide
and lead to an additional five million largely preventable disabilities,
according to the WHO.
In the Recent Landmark Judgement X vs. Principal Secretary health & Family
welfare dept, 2022
, the Supreme Court clarified the interpretation of
medical termination of Pregnancy Act. It's a Progressive judgement, which led to
breaking new grounds & evolving a modern jurisprudence on the abortion law in
accordance with the changing social mores & non traditional familial
Facts of the Case
A 25 years old single woman, approached the Delhi High court for seeking
permission for terminate her 22 week pregnancy out of a consensual relationship.
But, on 15 July, High court denied her permission by reference the provisions of
Medical termination of pregnancy act, which allowed only married women to
undergo abortion after 20 weeks & she was not covered in any clauses under MTP
rules, 2003 on account of mental anguish, rape, health complications.
Then she approached the Supreme court on ground of social stigma & harassment
pertaining to unmarried single parent & continuation of unwanted pregnancy would
involve a risk of grave & immense injury to her mental health.
Provisions related to Abortion/Termination of Pregnancy
Before the enactment of MTP Act,1971, Medical termination of pregnancy was
governed by the IPC with Sections 312 to 318. These provisions aimed at
Criminalise abortions, except where the procedure was in good faith in order to
save the woman's life.
In 1971,MTP Act enacted by Parliament to decriminalise abortion in certain
defined circumstances & under due supervision of registered medical
practitioners. According to MTP ACT,1971, a pregnancy could only be terminated
U/S.3(2), if it didn't exceed 20 weeks. Also, a pregnancy can be terminated on
the opinion of one doctor if it's done within 12 weeks of conception. And
requirement of opinion of two doctors, if it's done between 12 to 20 weeks.
Abortion was permitted only when the continuation of the pregnancy would
- a risk to the life of the pregnant woman, or
- Discovery of foetal abnormalities, or
- Immediate necessity to save the woman's life, or
- Cause grave injury to the woman mental / physical health including rape
& failure to birth control measure.
2021 Amendment in the Medical termination of Pregnancy Act passed by the
parliament to meet the needs of the changing times & advancement of medical
The Amendment of 2021, permit abortion with:
- With the assent of one medical practitioner for abortion within 12 weeks
- Opinion of two medical practitioners for abortion within 20 weeks
- Also allowed abortion upto 24 weeks for certain classes of women:
- Due to change in marital status during the outgoing pregnancy
- Survivors of rape & incest
- Differently abled woman & minors
Also 2021 Amendment, replaced the word by any married woman or her husband
with the words Any woman or her partner
bringing within the fold of the law
pregnancies outside marriage institution.
The Issues before the Court & Adjudication
The main issue before the supreme court was to examine whether the rule 3B of
MTP Rules, 2003 is violative of Article 14 of the Indian Constitution, since it
excludes an unmarried woman & deprives her the access to safe & legal abortion.
In the evolution of the law towards a gender equal society, the interpretation
of the MTP Act & rules must consider the social realities of today & not to be
restricted by societal norms of age.
The unamended MTP Act, 1971 was largely concerned with married women
& the 2021
Amendment doesn't make a distinction b/w married & unmarried women. Rather, all
women are entitled to the benefit of safe & legal abortion. Rule 3B of MTP
Rules,2003 struck down on the ground of being discriminatory against unmarried
women, who may go through the same trauma & life situations as a married woman
The object of Section 3(2)(b) of MTP Act r/w Rule 3B is to provide for abortion
b/w 20 to 24 weeks, rendered unwanted due to change in the material
circumstances of women.
In contrast to a legal abortion that is carried out by a trained medical
provider, unsafe abortions can have fatal consequences. The rights of
reproductive autonomy, dignity & privacy under article 21 give an unmarried
women the right to choice on whether or not to bear a child, on a similar
footing of a married woman.
- Video clip of this Article: https://youtu.be/43HN8URd7tE