All women, married or unmarried, have the right to safe and legal abortion: Supreme Court

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The Supreme Court of India held in a case the day after International Safe Abortion Day that unmarried women have the same legal right to an abortion as married women do under the Medical Termination of Pregnancy Act of 1971

In this breakthrough ruling, the bench of Justice DY Chandrachud, Justice JB Pardiwala, and Justice AS Bopanna recognized marital rape, though purely within the ambit of abortion.

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The verdict came on a petition filed by a 25-year-old young unmarried woman who approached the high court seeking termination of her pregnancy of 23 weeks and 5 days. The consensual relationship resulted in the pregnancy voluntarily. The Delhi high court ruled that under the act she’s not entitled to get an abortion as she’s unmarried. The Delhi high court refused interim relief to her, the unmarried woman submitted to the supreme court that she was the eldest of all five siblings, and her partner had refused to marry her. This leads to a very tough circumstance in raising a child all on her own. The subject was whether a pregnancy that arose from a consensual relationship excluding unmarried pregnant women from rule 3B of the Medical Termination of Pregnancy Rules was valid.

 The apex court said the distinction between married and unmarried women is “artificial and constitutionally unsustainable”, it perpetuates the stereotype that only married women indulge in sexual activities.” The Supreme court also emphasized the environment one must consider around pregnant women. Moreover, the court observed it’s ultimately the decision of the woman carrying the child to decide keeping in mind her economic, social, and cultural factors as well as her material circumstances.

The marital status of a woman cannot be used to deprive her of getting an abortion. The court said depriving an unmarried or single woman of the right to abort an unwanted pregnancy is a violation of fundamental rights. An unwanted pregnancy could be ended within 24 weeks for even unmarried women. 

The court further said, “Denying an unmarried woman the right to a safe abortion violates her autonomy and freedom. Live-in relationships have been recognized by this Court".

These categories were added to the MTP Rules by the Central Government following the 2021 amendment to the MPT categories of women included in Rule 3B of the MP Rules framed by the Central government include; survivors of sexual assault or rape or incest, minors, change of marital status during the ongoing pregnancy (widowhood and divorce),  women with physical disabilities (major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)1. Women who are mentally ill, including those with mental retardation, fetal malformations that pose a significant threat to life or, if the child is born, may have severe physical or mental impairments; and women who are pregnant in humanitarian settings or during natural disasters or other emergencies that the government may declare.