In News: A 25-year-old pregnant woman moved the Supreme Court seeking an abortion after the Delhi High Court declined her plea.
The woman has also challenged Rule 3B of the Medical Termination of Pregnancy Rules, 2003, which allows only some categories of women to seek termination of pregnancy between 20 and 24 weeks.
The case has raised very important questions about the framework of reproductive rights, and recognising female autonomy and agency in India.
The MTP Act allowed termination of pregnancy by a medical practitioner in two stages.
For termination of pregnancy up to 12 weeks from conception, the opinion of one doctor was required.
For pregnancies between 12 and 20 weeks old, the opinion of two doctors was required.
In 2021, Parliament amended the law and allowed for a termination under the opinion of one doctor for pregnancies up to 20 weeks. For pregnancies between 20 and 24 weeks, the amended law requires the opinion of two doctors.
For the second category, the Rules specified seven categories of women who would be eligible for seeking termination.
Section 3B of Rules prescribed under the MTP Act reads: “The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of subsection (2) Section 3 of the Act, for a period of up to twenty-four weeks, namely:
survivors of sexual assault or rape or incest;
minors;
change of marital status during the ongoing pregnancy (widowhood and divorce);
women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016
mentally ill women including mental retardation;
the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and
women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.”
While the law recognises change in circumstances of the relationship status between a pregnant woman and her spouse — in the case of divorce and widowhood — it does not envisage the situation for unmarried women.
This is the gap in the law that the petitioner before the Supreme Court falls in.
The MTP Act is a provider protection law, that seeks to shield the Registered Medical Practitioner (RMP) from criminal liability, and as such it does not centre the pregnant woman’s needs and reproductive autonomy
Access to abortion is not at the will of the pregnant woman.
It is a highly regulated procedure whereby the law transfers the decision-making power from the pregnant woman to the RMP and provides great discretion to the RMP to determine whether abortion should be provided or not.
It is time that the legislature identifies this loophole in the present law and take the appropriate steps to uphold the reproductive rights of the women.
