In a landmark judgment, Supreme Court says all women are entitled to safe and legal abortion

The Supreme Court today said that all women are entitled to safe and legal abortion. The apex court observed that all women in India have the right to choose, and that unmarried women have the right to get an abortion under the Medical Termination of Pregnancy Act (MTP). No distinction will be made between married and unmarried women under the abortion law in India, said the apex court. For purposes of abortion, rape will include marital rape too.

In what is a seen as a significant judgment, the apex court stated on Thursday that unmarried women are also entitled to seek abortion in the term of 20-24 weeks arising out of a consensual relationship. It also called the exclusion of unmarried women conceiving out of a live-in relationship from the MTP Act ‘unconstitutional’.

"Law in modern times is shedding the notion that marriage is a precondition for the rights of persons. The MTP act must consider the realities of today and must not be restricted by old norms. The law must not remain static and must keep in mind changing social realities,” the court said.

"Unsafe abortions continue to be the third leading cause of maternal mortality. 60 per cent of abortions carried out in India are unsafe. By denying access to safe abortion services, restrictive abortion practices lead to unsafe abortions,” it said, further adding, "Married women may also form part of the class of survivors of sexual assault or rape. A woman may become pregnant as a result of non-consensual sex with her husband.” The Supreme Court also said that registered medical petitioners do not need to disclose the identity of a minor if she seeks an abortion under the POSCO Act.

The issue pertains to whether exclusion of unmarried women who conceive out of a consensual relationship from Rule 3B of the MTP act valid. Rule 3B mentions the categories of women whose pregnancies can be terminated in the 20-24 weeks duration – sexual assault and rape survivors, minors, women who undergo change in marital status like widowhood, divorce during pregnancy, women with physical disabilities, mentally ill women, and for foetal malformation that has substantial risk of being incompatible with life.

Justice Chandrachud, presiding judge, said that if the rule is understood as only for married women, then it would perpetuate the stereotype that only married women indulge in sexual activities, which is not constitutionally sustainable.

The Court said that the rights of reproductive autonomy give the same rights to married as well as unmarried women.

Remarkably, the judgment comes on International Safe Abortion Day. When informed by a lawyer, Justice Chandrachud said, "I had no idea that this would coincide with Safe Abortion Day. Thank you for informing us".

The case that was being heard pertains to a 25-year-old unmarried woman who approached the Delhi High Court seeking termination of her pregnancy of 23 weeks and 5 days. She said that the pregnancy arose from a consensual relationship but her partner had refused to marry her. The high court observed that unmarried women whose pregnancies arise out of consensual relationships were not covered by any of the clauses.

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