Activists hail SC judgment stressing on rights-based perspective for women to seek abortion

Legal and women activists have hailed the ruling by the Supreme Court of India which held that the meaning of rape must be held to include "marital rape" for the purpose of the Medical Termination of Pregnancy Act (MTP) and that all women (married and unmarried) are entitled to seek abortion up to 24 weeks into their pregnancy.

This judgement stresses on the rights-based perspective for accessing abortion, which was not articulated before, they said.

In its judgement given on Tuesday, a bench comprising Justices DY Chandrachud, AS Bopanna and JB Pardiwala stated that a woman, who conceives as result of her husband’s act of sexual assault or rape committed on her will fall under the "survivors of sexual assault or rape or incest" mentioned in Rule 3B(a) of the MTP Act.

The court had on July 21 allowed an unmarried woman to terminate her 24-week pregnancy after the Delhi High Court had refused her permission for it.

The apex court had ruled that the HC had laid undue emphasis on the marital status of the woman, especially since the 2021 amendment to the MTP (Medical Termination of Pregnancy) Act had inserted the word ‘partner’ along with ‘husband’ in the law. The bench had reserved the judgement in the case on August 23, 2022.

The judgement also clarifies that MTP should be accessible to not just cis-gender women, but also to persons who may require access to safe medical termination of their pregnancies.

The court underscored that unmarried women can seek abortion up to 24 weeks in case of a pregnancy arising out of a consensual relationship.

This ruling recognises gender identities outside of cis-hetero normative, thereby bringing them to the centre as well while talking about the law and access to safe abortion.

Several women activists welcomed the judgement. Adsa Fatima of Sama Resource Group for Women and Health expressed happiness that the judgement was finally out. This is a long overdue recognition of women's autonomy and reproductive rights regardless of marital situation, she stressed.

“How can we keep an essential healthcare service conditional on being married or not? It is arbitrary, makes no sense, and is entirely discriminatory, as the Supreme Court also observed. Any law must be put to test to explore the implicit biases – and this provision in MTP law on excluding women outside of marriage to seek termination of pregnancy beyond a certain duration in pregnancy – was deeply rooted in patriarchal notions around women's sexuality and reproductive health,” Fatima said.

Unsafe abortions are a leading but preventable cause of maternal mortality and morbidity. However, despite the enactment of the MTP Act in 1971, unsafe abortions continue to be the third leading cause of maternal mortality, and close to eight women in India die each day due to causes related to unsafe abortions.

A study published in the BMJ Global Health pointed out the grim statistics of unsafe abortions in India: between the years 2007 and 2011, an estimate 67 per cent of the abortions carried out were classified as unsafe.

Fatima hoped that with this judgement, other systems too would fulfil their duties and responsibilities. This ruling should nudge the health systems, healthcare providers, and particularly doctors to advance their understanding of abortion as the healthcare service that it is.

“The health system is well located to play a much bigger role in encountering stigmas and misinformation that routinely disrupts access to safe abortion. Unsafe abortion is a public health issue and with improved laws, and policies in place, we should be able to ensure guaranteed access to comprehensive abortion care, for everyone,” she said.

She argued that if abortion between 20-24 weeks of pregnancy was safe for one person, it should be accessible to everyone who may need it. “Why legislate so much, and create so many conditions for accessing safe abortion care? It must be made available and accessible as a matter of right, upon the request of the pregnant person,” she said.

The judgement underscored that significant reliance should be placed on each woman’s own estimation of whether she is in a position to continue and carry to term her pregnancy.

It maintained that while determining whether the continuation of the pregnancy would involve grave danger to the pregnant woman’s physical or mental health, her actual or reasonably foreseeable environment may be taken into account.

“It's an incredibly powerful ruling that will go a long way towards ensuring autonomy, agency and bodily integrity and rights for all girls, women and pregnant persons,” said gynaecologist Dr Suchitra Dalvie, who is also the coordinator of the Asia Safe Abortion Partnership.

“This judgement acknowledges that pregnancy as a result of rape can also be a rape within marriage,” Mumbai-based lawyer Anubha Rastogi, who works for reproductive rights and justice, said.

That the judgement includes ‘marital rape’ within the understanding of rape opens up a whole new potential for justice for women. “It links in perfectly with Justice J Chelameswar’s statement during the right to privacy ruling where he said that the decision to have sex or not, with whom and whether to get pregnant or stay pregnant are all within the right to privacy of an individual and all citizens of India have the right to privacy. This is a much needed step in the right direction,” Dalvie said.

In 2017, Justice Chelameswar had famously ruled that “a woman’s freedom of choice whether to bear a child or abort her pregnancy falls in the realm of privacy”. Justice RF Nariman, who was also on the bench, included the right to abort a foetus on the list of “a large number of privacy interests”.

Even in the absence of a criminal section or recognition of an offence, the healthcare needs and traumas of survivors continue to be real. “This judgment recognises this distinction so well. Just because a survivor of sexual assault cannot initiate a criminal proceeding against their perpetrator, it does not mean they are not entitled to even receive care and support to overcome the health impacts of that assault,” said Fatima.

The order directs doctors to refrain from asking women to get husband's consent or bringing other members of family even when she is an adult woman. “Only her consent is material and should matter. Doctors should let go of imposing these 'extra legal' conditions as observed by the court,” noted Fatima.

Several doctors and experts had earlier pointed out that the MTP Act and the Protection of Children from Sexual Offences Act, 2012 (POCSO), which criminalised adolescence sexuality, were not compatible. If a teenaged pregnant girl goes to a doctor for an MTP, the doctor is obliged to inform the police.

Now, the judgement clarifies that though there is mandatory reporting under the POCSO Act, if the pregnancy stems out from consensual sexual activity and if a request is made by either the guardian or the minor to not reveal the identity of the person, then the doctor, while reporting the MTP, is not bound to report the details of the pregnant person.

“This makes a huge difference because it acknowledges there is consensual sexual activity happening between minors even though the law looks at it as an offence. Therefore, access to abortion should not become a problem because of the mandatory reporting. This clarification is fantastic,” said Rastogi, who has authored a report on women’s access to safe abortions.