To Include Unmarried Women Under Abortion Law, Supreme Court’s New Move

Having ruled that denying an unmarried woman the right to safe abortion violates her personal autonomy, the Supreme Court will now interpret the Medical Termination of Pregnancy (MTP) Act and the related rules to see if unmarried women could be allowed to abort a 24-week pregnancy on medical advice.

A bench of Justices DY Chandrachud and JB Pardiwala on Friday asked Additional Solicitor General Aishwarya Bhati, appearing for the Centre, to assist the court in the exercise.

“When there are exceptions provided under the law, then why unmarried women can’t be included to terminate 24-weeks pregnancy, if the medical advice so permits. The parliamentary intent appears to be clear as it has replaced “husband” with “partner”. It shows that they have considered unmarried women also in the bracket of those allowed to terminate 24-weeks pregnancy,” Justice Chandrachud said.

The bench said it needs to craft its verdict in a way that unmarried women are also allowed to terminate their 24-week pregnancy like divorcees, widows or those in judicial separation.

Mr Bhati contended there is a reason for not allowing unmarried women to terminate pregnancy after 24 weeks as it could take a toll on their health.

“The experts have their views over this. We need to place those views before the court. The termination of pregnancy at 24 weeks carries immense risk and could even cost the life of the women,” she said.

The bench allowed Mr Bhati to place the views of experts before it and said it needs her assistance on the issue.

At the outset, the bench was informed a 25-year-old woman, who was allowed to terminate her 24-week pregnancy on July 21, is safe after a successful procedure.

On July 21, the top court had expanded the scope of the MTP Act to include unmarried women and allowed the 25-year-old to abort her 24-week pregnancy arising out of a consensual relationship.

The top court had said, “A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution and she has a sacrosanct right to bodily integrity.”

“Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom. Live-in relationships have been recognized by this Court,” it had underlined.

The court had requested the Director of the AIIMS, Delhi to constitute a medical board in terms of the provisions of the MTP Act and said in the event it concludes that the foetus can be aborted without danger to the life of the woman, a team of doctors at the facility shall carry out the abortion.

The court said it was of the view that allowing the petitioner to suffer an unwanted pregnancy will be contrary to the intent of the law enacted by Parliament.

Allowing the petitioner to terminate her pregnancy, on a proper interpretation of the statute, prima facie, falls within the ambit of the statute and the petitioner should not be denied the benefit on the ground that she is an unmarried woman, it had said.

It had added the distinction between a married and unmarried woman does not bear a nexus to the basic purpose and object that is sought to be achieved by Parliament which is conveyed specifically by the provisions of Explanation 1 to Section 3 of the Act.

“The petitioner had moved the High Court before she had completed 24 weeks of pregnancy. The delay in the judicial process cannot work to her prejudice,” it had said.

The top court had said Parliament, by amending the MTP Act through the Act of 2021 intended to include unmarried women and single women within the ambit of the law which is evident from the replacement of the word ‘husband’ with ‘partner’.

It, however, pointed out there is a gap in the law as while Section 3 travels beyond conventional relationships based on marriage, Rule 3B of the MTP Rules does not envisage a situation involving unmarried women, but recognises other categories of women such as divorcees, widows, minors, disabled and mentally ill women and survivors of sexual assault or rape.

“There is no basis to deny unmarried women the right to medically terminate the pregnancy, when the same choice is available to other categories of women,” it had ruled.