India Supreme Court reaffirms right to safe and legal abortion regardless of marital status
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India Supreme Court reaffirms right to safe and legal abortion regardless of marital status

The Supreme Court of India (SCI) Thursday delivered a landmark judgement on the right to safe and legal abortion, ruling that unmarried women are entitled to seek an abortion. Justices DY Chandrachud, AS Bopanna and JB Pardiwala further ruled that the exclusion of unmarried women who conceive in live-in relationships from the Medical Termination of Pregnancy Rules (MTP Rules) is unconstitutional, expanded the definition of rape to include marital rape and made additional considerations for privacy in abortion care. Chandrachud observed that the term “women” used in the judgement shall include persons other than cisgender women who may require access to safe medical termination of their pregnancies.

A 25-year-old unmarried woman, refered to as “X,” sought permission to terminate her pregnancy of 23 weeks and 5 days under Section 3(2)(b) of the Medical Termination of Pregnancy Act 1971 (MTP Act) and Rule 3B(c) of the MTP Rules. X stated that her pregnancy arose out of a consensual relationship and wished to terminate her pregnancy because “her partner had refused to marry her” and she did not wish to face the stigma of being a single mother. The Delhi High Court refused interim relief to X, and she appealed.

The Court ruled that excluding unmarried women and single women from the statute goes against the objective of the MTP Act. In a 2021 amendment to the Act, the term “married woman” was substituted with “any woman” and “husband” was replaced with “partner.” According to the Court, the amendment reflects the legislation’s intention to include unmarried women in the scope of the Act.

Justice Chandrachud also determined that the meaning of rape must be held to include “marital rape” for the purpose of the MTP Act and Rules, writing that “[a] woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband. We would be remiss in not recognizing that intimate partner violence is a reality and can take the form of rape.” The Court held that wives who conceive during forced sex with their husbands will be considered “survivors of sexual assault or rape or incest” mentioned in Rule 3B(a) of the MTP Rules.

The Court observed that woman seeking legal abortion cannot be required to seek consent from her family, and doctors need not disclose the identity of any minor seeking abortion in the information given to police. Justice Chandrachud wrote:

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.

Lastly, the Court directed the state to ensure that “information regarding the reproduction and safe sexual practices is disseminated to all parts of the population”; and to ensure that RMPs “treat all patients equally and sensitively.” In a recent maternity leave case, Justice Chandrachud expanded the conventional legal meaning of “family” and granted equal protection of the law to an atypical family unit.