Abortion laws and their enforcement have fluctuated over the past few years. Abortion in the legal sense means, the termination of pregnancy, usually with the help of medical practitioners. India legalized abortion in the year 1971. Before this, it was considered to be a criminal offense under Section 312 of the Indian Penal Code, 1860.
In India, the regulating Act for abortion has been the MTP (Medical Termination of Pregnancy) Act of 1971. This act made it legal to abort any unwanted pregnancies. But it did not include all types of pregnancies. The Amendment of 2021 brought about changes that broadened its scope and widened the former restricted meaning of the Act. Although legalized, abortion is a significant contributing factor to maternal mortality and morbidity because many women in India still practice unsafe methods of abortion. Unsafe abortion is a severe health issue among women in our country.
Medical Termination of Pregnancy (Amendment) Act, 1971
In 1971, the Medical Termination of Pregnancy (MTP) Act was passed by the Parliament in order to legalize the practice of abortion in India. This act was passed to ensure that women across the country can have access to safe and legal abortion. Under this Act, a woman can legally terminate her pregnancy up to 20 weeks, if the pregnancy carries any risk factor to her body, risk of injury to mental health, if it is due to contraceptive failure in a married woman, as a result of rape, or is likely to result in the birth of a child with any sort of physical or mental abnormalities.
Before the amended Act of MTPA of 2021, MTP Rules allowed women under seven categories to terminate pregnancy beyond 20 weeks of the gestation period. The circumstances under which termination of pregnancy may be permitted are provided in Section 3 of the MTP act. The law stipulated that contraceptive failure was one of the acceptable grounds for abortion in married women. The Act did not have any provision for abortion in ‘unmarried’ women as a consequence of contraceptive failure. As per the former unamended act, not all types of pregnancies were legalized to be terminated. Abortion of Unmarried women who are of between 20 weeks to 24 weeks pregnant, was prohibited to abort with the help of registered medical practitioners. Hence, many women resorted to unsafe pregnancy termination methods such as quacks, home abortions, etc. which posed a danger to their lives. This distinction becomes violative of a woman’s right to personal autonomy and comprehensive care. This act is violative of women’s right to equality. It is both socially and morally wrong to discriminate between the married and the unmarried. Excluding the single unmarried women narrowed down the scope of the Act, making it inaccessible to all the women in this country.
New Rule of Abortion for the Unmarried
The MTP Act of 1971 was amended in the year 2021 to alter the upper limit of the gestation period from 20 to 24 weeks. This amendment also allows unmarried women to seek abortion for pregnancy resulting from the failure of contraceptive methods.
The bench consisting of Justices D Y Chandrachud, A S Bopanna, and J B Pardiwala, made a ruling on a case where a pregnant unmarried woman was denied her right to abortion because she was past the 20-week limit. As a result of this ruling, safe and legal abortion is now being made accessible to all women in India whether married or not. The scope of Section 3(2)(b) of the said Act is extended which provides the right to abortion up to 24 weeks of pregnancy for even unmarried women resulting from the failure of using any contraceptives.
“The rights of reproductive autonomy, dignity, and privacy under Article 21 of the Constitution gives an unmarried woman the right of choice as to whether or not to bear a child on a similar footing as that of a married woman,” Justice Chandrachud held. The word ‘husband’ was replaced with the word ‘partner’ and the phrase ‘married woman’ by the phrase ‘any women’. The bench said that the interpretation of the act should be done in such a manner that no discrimination is being made between the married and the unmarried. The benefits of law should be applied equally to all. Reproductive choice is personal liberty and is guaranteed under Article 21 of the Indian constitution. This was held by the apex court in the case of ‘K.S. Puttaswamy v Union of India (2018)’.
Forcing a woman who wants an abortion to keep the child would amount to a violation of her bodily integrity. Each woman must be able to make their own reproductive decisions free from any external pressure. The changes were much needed to ensure women’s empowerment by providing personal autonomy, dignity, and confidentiality to all women who need to terminate their pregnancies. This distinction between married and single women is not constitutionally sustainable
The topic of Abortion and the Stigma around the Unmarried is highly debatable in this era. Women from various walks of life are often crushed under the prevailing patriarchal system and have to abide by what the men decide for them. Abortion is a human right; denying women this right would deprive them of it. Women should have complete autonomy over their bodies and should have a sacrosanct right to bodily integrity. Men should not be the deciding factor in women’s reproductive choices. Denial of abortion for not having a husband would curb away the human rights of women. Every woman despite her marital status must be able to have access to safe and legal abortion. Even half a decade after the passing of this Act, there are still a lot of societal stigmas around abortion in India. Even married women have to undergo a lot of societal pressure and let alone a single woman. Awareness is necessary to reach the ultimate goal of the new provisions to the amendments of the MTP act. Pre-marital sex is not an alien concept in today’s generation. The changing nature of society should be kept in mind while interpreting the provisions of an Act to enable it to fulfill its object and purpose to the fullest.
Author(s) Name: Silvia Kalita (RV Institute of Legal Studies, Bengaluru)