“The decision whether or not to bear a child is central to a woman’s life, to her wellbeing and dignity. It’s a decision she must make for herself”
– Ruth Bedar Ginsberg (Former Associate Justice & second woman to serve on the Supreme Court of the United States)
There has been a lot of debate, not only in India but in the world at large, on the legality of the termination of pregnancy & the right of women over their bodies, and the choices related to the same. According to the ICCPR, the right of a woman or a girl to make autonomous decisions about her own body and reproductive functions is at the very core of her fundamental right to equality and privacy. Although on an international front, no clarity could be achieved uniformly when it comes to enforcement, the latest judgement by the Honorable Supreme Court of India has cleared some air between the debate of her having a right over her body and the duty of the state to guard the life of the unborn.
The US Supreme Court made abortion a constitutional right up in the year 1973, after which in the year 1992, while upholding the constitutionality of abortion, it allowed the states to impose related regulations, only be invalid if imposed an “undue burden” upon the women. But to despair, the enjoyment of this right was short-lived. In the year 2022, the Supreme Court of the United States through the case of Dobbs, State Health Officer of the Mississippi Dept. of Health v. Jackson Women’s Health Org., declared the right to abortion to not be a constitutional right, henceforth overruling the judgement of 1973 & 1992.
In India, the termination of pregnancy has been made legal under various circumstances since the introduction of the Medical Termination of Pregnancy (MTP) Act, of 1971. Although the Indian Penal Code 1860 under Section 312, criminalizes the act of “voluntarily causing a woman with child to miscarry”, the MTP Act acts as an exception to the same, “carried out in good faith to save the life of the woman”. And with the latest amendment of 2021, the ambit was widened as to the tenure termination could be sought, along with the eligible crowd, under section 3 & rule 3B of the MTP Act, 1971 & MTP rules 2003 respectively. It now includes termination extended from 12 to 20 weeks, providing an upper limit from 20 to 24 weeks, for women including rape survivors and women with disabilities. But the point in the issue is, what about single pregnant women? Is it not a hindrance to their constitutional and fundamental right to equality, and dignity, apart from deprivation of their bodily autonomy?
According to the 2017 case of Justice K.S. Puttaswamy (Retd.) v. the Union of India And Others, the bench held privacy under Article 21 of the Constitution of India, covers personal autonomy related to the body, mind, and making choices, as well as informational privacy. It reiterated the decision of the 2009 judgement, Suchita Srivastava v. Chandigarh Administration, which held that reproductive rights include a women’s entitlement to carry a pregnancy, give birth and subsequently raise children. These constitute her right to privacy, dignity, and bodily integrity. But despite laying a robust jurisprudence on reproductive rights & privacy of a woman, what is the use if that choice is not accessible, or say, there is no social inclusion in sight?
Finally, in the year 2022, the Supreme Court of India, went ahead to provide a benchmark for the international forum to witness, not just that but to take a progressive step towards its subject. The Court noted that a narrow interpretation of Rule 3B in MTP rules, limited only to married women is discriminatory towards unmarried women, therefore is violative of Art. 14 of the Constitution also falling foul of the spirit guiding Article 140. It held that the decision to carry the pregnancy or terminate it is firmly rooted in a woman’s right to her bodily autonomy and to choose the course of her own life where the artificial distinction between married and unmarried women cannot be sustained. And therefore, the benefits of the law extend to both single and married women.
Although it excludes a sizeable population of the LGBTQ+ community from the scope of the act, this ultimate revolutionary ruling underlines the fact that “patriarchal principles about what constitutes permissible sex” cannot be the basis of any law, while providing the first official recognition of a long longed yet debated a concept, marital rape in India.
To the world, wherein one opines terminating a pregnancy is the choice of the pregnant woman and a part of her reproductive rights, and the other being it is the state’s obligation to protect life, here, the protection of the foetus. Through this judgement, India’s Highest Court of Justice is set to be the trendsetter. India would now, go on to contribute towards ending preventable and maternal mortality to help meet the sustainable development goal and provide universal access to sexual and reproductive health and rights. The amendments should increase the ambit and access of women to safe abortion services and will ensure dignity, autonomy, confidentiality and justice for women in India, who need to terminate their pregnancies.
Also published on the LinkedIn here.