Supreme Court: Unmarried Women Can Also Access Abortion Under The MTP (Amendment) Act 2021

The judgement pointed out that the MTP (Amendment) Act 2021 mentions ‘partner’ and not ‘husband’, and therefore intends to include women irrespective of their marital status.

The Supreme Court of India overturned a Delhi High Court judgement on Thursday, thereby expanding the scope of the Medical Termination of Pregnancy (Amendment) Act, 2021, to include unmarried women’s access to abortion. This judgement ruled in favour of a 25-year old unmarried woman who was seeking to terminate her 24-weeks pregnancy against Delhi High Court’s decision to deny her that relief on the grounds of her marital status.

The bench, consisting Justices Chandrachud, Kant and Bopanna, found that the “beneficial provisions of the Medical Termination of Pregnancy Act cannot be denied to a woman solely on the ground that she is unmarried”. The judgement pointed out that the Act mentions ‘partner’ and not ‘husband’ and therefore intends to include women, irrespective of their marital status.

What does the MTP Act say?

The MTP Amendment Act, 2021, permits

  • the termination of pregnancy up to 20 weeks with the approval of one doctor
  • between 20 to 24 weeks, the person seeking abortion would have to acquire approval from two doctors, but it is available only in certain special circumstances which include being survivor of rape or incest, being underage, undergoing a change in marital status or risk to physical or mental health, among other conditions.
  • beyond the 24 week period, a medical board needs to be consulted.

The petitioner’s counsel had mentioned how having to carry the pregnancy after being abandoned by her partner amounted to ‘mental cruelty’ and is ‘becoming more challenging’. Taking this into account, the Supreme Court passed its judgement noting that the Act was inclusive of unmarried women.

A society uncomfortable with single women’s sexual activity

This judgement by the Supreme Court that followed the restrictive interpretation by the Delhi High court shone a light on the social mores that stigmatise and show up society’s discomfort with single women being sexually active or owning their agency. While the judiciary has recognised that access to abortion is equal to all regardless of marital status, the society at large is still conservative and discriminative against unmarried women.

Stigmatisation of women’s sexuality, sexual freedom and conversations around reproductive rights have decreased the accessibility to abortion facilities, despite them being legal. The gravity of the situation is reflected in the discomfort most sexually active single women face every time they visit a gynaecologist!

Single women face other logistical challenges too

Then there are financial challenges which make access to medical opinion unfeasible for many across the length and breadth of the country. There is a distinct shortage of doctors with specialisation for the same, so women might have to travel long distances for the medical opinion required, which prove inaccessible as single women without family backing might not have the required funds.

In addition to social and economic challenges that women face in accessing safe abortion facilities, delayed diagnosis due to health conditions gives rise to legal constraints if the 20-week period is crossed. Health conditions like PCOS and endometriosis which are relatively common among people of reproductive age cause irregular periods making timely diagnosis difficult.

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Due to patriarchal conditioning, even gynaecologists are less likely to prescribe pregnancy tests for every delay in the menstrual cycle of single women.

Is this judgement and MTP Act enough?

As the overturning of Roe v. Wade by US Supreme Court threatens a global conservative shift in conceptualisations of reproductive rights, the MTP Act, even with its many faults, is considerably wide ranging.

The faults are many – it is not rights based  – that is, abortion is merely legal, and not a “fundamental right”, it does not recognise nonbinary and trans people as needing abortion rights, and there are numerous systemic barriers to accessibility.

But the amendment of 2021 has considerably broadened the scope in including women irrespective of their marital status, and has increased period of time during which one can seek abortion. Now the Supreme Court’s iteration of the petitioner’s right to agency needs to intensify conversations around abortion and the agency to combat social barriers.

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A postgraduate student of Political Science at Presidency University, Kolkata. Describes herself as an intersectional feminist and an avid reader when she's not busy telling people about her cats. Adores walking around and exploring read more...

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