Reproductive Freedom

Reproductive Freedom: Highlights of the Judgement

• A petition was filed in the SC, seeking inclusion of unmarried women within the ambit of Rule 3 B of the Medical Termination of Pregnancy Rules 2003 for abortion between 20-24 weeks of gestation period.
• Supreme Court ruled that shall be applicable to both married and unmarried women.
• MTP Act upholds the principle of Right to equality before law and equal protection (Article 14).
  • Provisions of MTP Act makes no discrimination between married and unmarried women.
• The SC clarified that the word ‘Woman’ in the Act includes not just cis-gendered women but all those who identify as women.
  • Cisgender means a person whose gender and identity corresponds with their birth sex.

Reproductive Freedom: Significance of the Ruling

• Fundamental Right: Right to Reproductive Freedom choice for women is a facet of the right to personal liberty under Article 21 of the Constitution.
  • Right of safe Reproductive Freedom healthcare is applicable to all women.
• Reproductive Autonomy: Its emphasis on women’s right to bodily autonomy without the need for authorisation from a third-party to access abortion. It recognise Reproductive Freedom rights of Women which includes:
  • the right to decide whether and what type of contraceptives to use,
  • the right to choose whether and when to have children,
  • the right to choose the number of children,
  • the right to access safe and legal abortions.
  • the right to reproductive healthcare
• Progressive Ruling: Ruling interprets the provisions of the Medical Termination of Pregnancy Act, 1971 in a progressive manner and questions the unreasonable classification made by this law.
• Recognises Marital Rape: It is a milestone judgment as it, for the first time, recognised marital rape, strictly under the purview of the MTP Act. It said that marital rape has to be classified within the meaning of “rape” in order to save women from forceful pregnancy.
  • Marital rape is not recognised as an offence under the Indian Penal Code (IPC). Exception 2 to Section 375 of the IPC removes marital rape from the ambit of rape.
• Women Empowerment: It will ensure that single women seeking abortion beyond 20 weeks cannot be refused on the grounds of narrowness of law.
  • Population Foundation of India recommends increasing the gestation period for all women as medical technology advancements have shown that abortion beyond 20 weeks is safe and certain foetal abnormalities can only be detected after 20 weeks.
• It could be a step towards making our abortion regime more liberal and pro-women.

Medical Termination of Pregnancy (Amendment) Act 2021

• It allows termination of pregnancy by a medical practitioner in two stages.

Stage 1: For pregnancies up to 20 weeks, termination can be allowed if:

1. the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
2. there is a substantial risk that if the child was born, it would suffer from any serious physical or mental abnormality.

• Termination is allowed under the opinion of one registered medical practitioner.

Stage 2: For pregnancies between 20-24 weeks, Section 3B of the Rules under the MTP Act, defines seven different categories of women who could access abortion within this gestation period,

1. survivors of sexual assault or rape or incest;
2. minors;
3. change of marital status during the ongoing pregnancy (widowhood and divorce);
4. women with physical disabilities (major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016);
5. mentally ill women including mental retardation;
6. 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.
7. women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.”

• Women who fall under the Stage 2 category, would have to obtain permission from two doctors, who have to be of the opinion that the continuance of the pregnancy could either risk the life of the woman, or the child.
• Contentious Rule: Under Rule 3B of the Medical Termination of Pregnancy Rules, 2003, unmarried women with 20-24 weeks of pregnancy were not allowed abortion.

Stage 3: Opinion of a state-level medical board will be set up to decide if pregnancy may be terminated after 24 weeks in cases of foetal malformation and if the foetal malformation has a substantial risk of it being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped.

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