By Dr George Jacob

Kochi, Oct 8, 2022: A 25-year old unmarried woman, who was 22-weeks pregnant from a consensual relationship, petitioned the Delhi High Court for permission to terminate her pregnancy.

The woman contented that that her partner refused to marry her at the last minute, and that “having a child outside wedlock would cause her social stigma and harassment.” She also said she could not afford to bring up a child due to humble circumstances. She was jobless. She wasn’t also mentally prepared to raise a child.

On July 15, the Delhi high Court denied her permission to abort, as, being unmarried, she was not covered under existing laws regulating abortions in India.

On July 21, the Supreme Court allowed her to abort.

The apex court ruled that regardless of marital status, all women can obtain abortions up to 24 weeks of pregnancy.

The court opined that decision to continue pregnancy to term, or not is rooted in the right of bodily and decisional autonomy of the woman.

The bench led by justice D Y Chandrachud and consisting also of justices A S Bopanna and J B Pardiwala ruled that reproductive autonomy requires that every pregnant woman has the intrinsic right to abort or not to, without consent or authorization from a third party.

Acknowledging the existence of abuse within marriages, the bench also ruled that forceful pregnancy of a married woman can be treated as ‘marital rape’ for purposes of abortion, bringing marital rape too within the ambit of laws governing abortion.

The court held that prohibiting unmarried or single women with pregnancies up to 24 weeks from accessing abortion while allowing married to do so goes against the right to equality. The court thus brought unmarried women within the ambit of laws regulating abortion.

What are the laws currently regulating abortions in India?

The Parliament passed the Medical Termination of Pregnancy (MTP) Act in 1971 which laid down regulations to be followed in the entire country except the then State of Jammu and Kashmir, with regard to abortions, also referred to as MTP.

As per this Act, pregnancy can be terminated by a Registered Medical Practitioner (RMP) if pregnancy hasn’t exceeded 20 weeks. MTP can only be conducted in a government hospital, or an institution approved for MTP by the government.

A written consent of the woman’s guardian is necessary to perform MTP in women under 18(minors), and in mentally unsound, even if they are older than 18.

The cost of abortion service is covered fully by the government’s public national health insurance funds, Ayushman Bharat and Employees’ State Insurance with the package rate for surgical abortion set at 15,500 rupees, which includes consultation, therapy, hospitalization, medication, ultrasound and follow-up treatment. For medical abortions (using drugs), the package is set at Rs.1, 500, which includes consultation and ultrasound.

As per the Act, only a RMP experienced in Obstetrics and Gynecology is permitted to perform MTP when the pregnancy does not exceed 12 weeks. If the pregnancy exceeds 12 weeks and is not more than 20 weeks, the opinion of two RMPs is required to terminate the pregnancy.

MTP Act of 1971 was amended in 2021, to make available abortion services to more women in reproductive age group.

As per the amendment, pregnancy may be terminated up to 20 weeks in cases of contraceptive failure. It also increased the upper gestation limit from 20 to 24 weeks for special category of women, including rape survivors, incest victims and other vulnerable women namely; the differently-abled and minors.

Opinion of only one RMP is required to terminate pregnancies up to 20 weeks, while 2 RMPs need to opine to terminate pregnancies of 20-24 weeks, while a state-level medical board has to approve terminating pregnancies after 24 weeks in cases of substantial fetal anomalies.

The above said Acts of 1971 and 2021 form the legal framework for abortions in India.

But the recent ruling of the Supreme Court in permitting the 25-year old unmarried woman to have her pregnancy terminated, and its observations are bound to expose MTP to rampant misuse;

• The court has now opined that unmarried women can avail of MTP up to 24 weeks, while earlier married and single mothers were permitted to avail MTP up to 20 weeks of pregnancy.
The most significant deterrent against premarital and extra-marital sex is pregnancy. If MTP is made available to unmarried women as freely as to married women, societal morality would collapse significantly. It would be ‘free for all’, and promiscuity would abound. Indian society will witness mayhem of carefree and unbridled sexual norm.
• The Court has also freed MTP from requirement of consent from a third party. This will further add to sexual immorality in society, especially among the youth. Teenagers and youth will involve in premarital sexual escapades assured of availability of abortion without consent of a third party. They would be free from fear of ‘their families learning about their pregnancy’.
What keeps youth from premarital sex is possibility of pregnancy, the termination of which thus far required third-party consent. The current ruling would open the floodgates to teenage pregnancies. Pregnant teenagers would approach quacks and unqualified personnel inept at performing safe MTP, adding to MTP-related mortality.
• Making MTP more liberal will certainly add to female feticide on the sly. Aborting female fetuses is already a thriving industry in India. 9 million female fetuses were aborted illegally in India between 2000 and 2019.
• A more liberal abortion policy would add to disregard for life, both of the foetus and the pregnant, placing the latter at the mercy of quacks.
• By including marital rape under the ambit of MTP, longevity and health of marriages would suffer, as unplanned pregnancies within marriages, could turn into thorn of contention between couples.
Women would seek umbrage under ‘marital rape’ to abort unplanned pregnancies, thus disregarding precious lives big-time.