Abortion Rights require Kid-gloves

The Supreme Court, subject to certain conditions, allowed an unmarried woman to abort her 24-week fetus, arising from a live-in relationship. While doing so, the Court observed that statutes must be interpreted purposively and not with an unduly restrictive view and legal benefits must extend to all the legislature intended to cover. While India extends far greater abortion rights than many western countries, nevertheless this ruling advances women’s rights, especially as regards their freedom towards reproductive choices. In fact, ever since the U.S. Supreme Court recently brought down its gavel overturning the 50-year precedent laid down in Roe v. Wade, which afforded constitutional protection to women’s right to abortion, the debate around abortion has renewed across the globe

On the one hand are those who advocate feminine agency and a women’s right to self-determination. On the other extreme are pro-life activists, seeking to protect the unborn and who see abortion as taking a life. Interestingly, the same day that the U.S. Supreme Court pronounced its Roe related verdict, Germany ended a Nazi-era law which had prohibited the advertising of abortion services even though abortion, in certain circumstances, is legal in Germany. This confirms that abortion is an extremely divisive topic bound to be shaped by personal ideology, philosophical beliefs, normative ethics, social values and individual bias.

In India, abortions are regulated by the Medical Termination of Pregnancy Act, 1971 (the “Act”). The Statement and Object of the Act states “the provisions regarding termination of pregnancy in the Indian Penal Code which were enacted about a century ago were drawn up in keeping with the then British Law on the Subject.” The legislature was therefore mindful, even in 1971, that changed circumstances required modification in the law and yet, perhaps as a reflection to the prevailing values, went on to note “Furthermore, most of these mothers are married women, and are under no particular necessity to conceal their pregnancy.”

The Act underwent amendments in 2002 which provided women with accessibility to safe and legal abortion services. In 2021, the Act was once again amended which, amongst other things, permitted ‘women’, notably without any classification as to their marital status, to seek abortion, where the pregnancy does not exceed 20 weeks, even on the grounds of contraceptive failure used either by the ‘woman’ or ‘her partner’, replaced from the previous words ‘married woman’ or ‘her husband.” The new legislation also increased the gestation limit to 24 weeks for certain “categories’ of woman as may be prescribed by rules made under this Act.” The problem lies in this ‘categorization’ and the rules that have been framed add the curve-ball of marital status and only a change in such status as a ground for abortion

Hence, even though the Statement and Object of the Act made a presumption, which in itself is flawed, as consenting adult women or those in live-in relationships (which has legal recognition) also get pregnant, the substantive Act does not contain the burden of marriage. In fact, it uses the words, ‘woman’, ‘her partner’ and ‘pregnant woman’. Resultantly, while rules could be framed and could stipulate the ‘category of woman’ entitled to abortions they travel beyond the objective of the 2021 amendments.

Simply put, up to 20 weeks of pregnancy any woman, married or unmarried can seek to terminate her pregnancy. Notably, where married, no spousal consent is necessary. But between the 20 to 24 weeks period a married woman cannot terminate her pregnancy, unless a medical board approves it and there is a change in her marital status from when she became pregnant. Only if she becomes a widow or gets divorced is abortion permitted! Unmarried pregnant women are excluded all together from the rule which shows that the categorization is logically unsustainable and not in keeping with Parliamentary intent.

Challenge to the constitutional validity of the 2021 amendments and the subsequent rules is pending before the Supreme Court. Recent developments and the need for regular Court intervention to seek abortions brings to fore the urgency with which the validity needs to be decided. In the past, dealing with abortion rights, the Supreme Court ruled “a women’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21….” It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a women’s right to privacy, dignity and bodily integrity should be respected.” In the Privacy case, the Constitution Bench extended these right and added “family, marriage, procreation and sexual orientation are all integral to the dignity of the individual.” The recent ruling, allowing the unmarried woman to seek abortion, also recognizes her Constitutional protection of equality before law as enshrined in Article 14.

As the World Health Organisation, based on studies notes “laws and policies on abortion should protect women’s health and their human rights. Regulatory, policy and programmatic barriers that hinder access to and timely provision of safe abortion care should be removed.”

In conclusion, we need to ask ourselves that while abortion laws in India are fairly advanced, are they progressive? Are they just a carry-forward of our age-old values or do they reflect the societal changes and the developments in laws, as regards individual rights, that have taken place in recent times? Of course, in a country that has long struggled to remove the scourge of infanticide, a delicate balance needs to be maintained. It is important not just to find the right legal solution but the most pragmatic one - one that upholds a woman’s bodily integrity and allows her the freedom to exercise her motherhood choices. To get there, we will need to shed our subjectivity and look beyond our inherent patriarchal bias and ethical and moral prejudices. After all, public health is an integral part of a country’s development path!

Satvik Varma is Senior Advocate based in New Delhi