In its relook at the case, the Supreme Court held that the distinction between married and unmarried women is an artificial one and cannot be sustainable. Reproductive justice entails both the right to not have a child and the right to have a child and take up parenthood with dignity. Thus, an unmarried woman has the same reproductive rights as that of a married woman.
The judgement shifts onto women the choice of whether to carry or abort a child, thus explicitly offering women the autonomy to decide, rather than leaving it to the whims of others, be it family members or medical practitioners.
Key takeaways of the judgement: Primarily, the court’s pronouncement takes away the premium on marriage in the context of abortion rights by declaring married and unmarried women to be on an equal footing. Secondly, it underscores different circumstance categories of women (by means of examples) who may avail of abortion services under the provisions of the MTP Act. These examples from the ruling’s non-exhaustive list include married women, married women who may be survivors of sexual and mental abuse, minor girls, women with physical disabilities, women suffering from foetal abnormalities, and women who experience a material change in terms of natural or man-made circumstances. These fall under Rule 3B.
The apex court’s pronouncement also reaffirms its decision in the case of Suchita Srivastava vs Chandigarh Administration (2009) that had placed the right to reproductive autonomy under the ambit of Article 21 of the Indian Constitution.
It is pertinent to note that the pronouncement recognizes reproductive rights under the right to reproductive autonomy, right to dignified life, right to equality and right to privacy under the MTP Act.
The pronouncement also outlines the fact that reproductive rights go beyond the decision of bearing or aborting a child. It entails within its scope the right of women to access education and information on contraception, sexual health, choice of contraceptive methods and number of children to bear.
It declares that decisional autonomy is an integral part of the right to privacy and a dignified life, as everyone must have the freedom to make self-defining and self-determining choices. This was previously outlined by Justice Chelameshwar in the Justice K.S. Puttaswamy & Anr. vs Union of India judgement.
It is noteworthy that the judgement offers an interpretation of law precluding it from deciding the statute’s beneficiaries based on narrow patriarchal principles and notions about what is considered “permissible sex". This is in line with the transformative nature of justice, given the changing times and need of the hour.
The verdict underscores that prohibiting single pregnant women from accessing abortion while letting married pregnant women such access during the same period of 20-24 weeks is contrary to the spirit of Right to Equality laid down under Article 14.
The judgement addresses the discriminatory behaviour of doctors against single pregnant women and the problem of unsafe procedures. However, it does not declare existing provisions invalid, leaving it open to dispute in future, and thereby falls short of absolute autonomy to pregnant women.
The pronouncement is clarificatory in nature and issues a suggestive directive to doctors to refrain from trying to impose extra-legal conditions like the consent of family members, proof of the same, an authorization by a court, etc. Additionally, it does not invalidate medical opinion on MTPs in the initial weeks. This amounts to a significant barrier to the right to self-determination, which still stands encumbered by procedural prerogatives.
While the judgement fails to address a few minute issues of significance, it is laudable all the same, as it comes soon after the Supreme Court of the US withdrew the constitutional right to abortion in that country. That happened earlier this year and abortion rights have since then been a contentious issue across the globe. India, for once, did not blindly ape the West.
Most importantly, the court judgement addresses the social stigma stemming from pre-marital intercourse and lack of access to sexual health education.
Moreover, this is a proof that we have come a long way since the penalization of abortion in the 1960s under Section 312 of the Indian Penal Code to the legitimization of medical termination of 20-24 weeks of pregnancy.
Trisha Shreyashi is a legal professional and panelist at HBR.
