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‘Can’t deny abortion if woman is unmarried’, SC allows plea to terminate 24-week pregnancy

In a significant decision, the Supreme Court on Thursday allowed the examination of a 24-week pregnant unmarried woman by an AIIMS medical board to determine whether the pregnancy can be safely terminated without endangering her life.

A bench headed by Justice D.Y. Chandrachud said letting an unmarried woman suffer an unwanted pregnancy will be contrary to the object and spirit of the Medical Termination of Pregnancy (MTP) Act.

The top court noted that after the 2021 amendment, the Medical Termination of Pregnancy Act uses the word “partner” instead of “husband” in the explanation to Section 3. It added that it shows legislative intent to cover unmarried women under the Act.

The top court asked the director AIIMS to constitute a medical board in terms of provisions of the MTP Act and in the event the board concludes that the foetus can be aborted without any danger to the life of petitioner, then AIIMS should carry out the abortion. The woman 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 top court observed that it would be a restrictive interpretation of the MTP Act and Rules, to limit right of abortion of pregnancy exceeding 20 weeks only to married women. The bench said the petitioner should not be denied the benefit merely on the ground that she is an unmarried woman.

The bench said prima facie, quite apart from the issue of constitutionality, it appears that the Delhi High Court has taken an unduly restrictive view. The top court allowed the unmarried woman’s plea, who challenged the Delhi High Court order declining to grant permission to the woman to abort the 23-week foetus.

On July 16, the Delhi High Court, while refusing to entertain a plea seeking termination of a 23-week pregnancy, observed that the petitioner, a 25-year-old unmarried Manipuri woman, whose pregnancy arises out of a consensual relationship, is clearly not covered by any of the clauses under the Medical Termination of Pregnancy Rules, 2003. The woman stated in her plea that she cannot give birth to the child as she is an unmarried woman and her partner has refused to marry her.

It further stated that giving birth out of wedlock will entail in her ostracisation and cause her mental agony. As she is solely a B.A. graduate who is non-working, she will not be able to raise and handle the child, the woman submitted in her petition, stating that she is not mentally prepared to be a mother and continuing with the pregnancy will lead to grave physical and mental injury for her.

A division bench comprising Chief Justice Satish Chandra Sharma and justice Subramonium Prasad said: “A perusal of Section 3(2) (a) of the Act provides that the Medical Practitioner can terminate the pregnancy, provided, the pregnancy does not exceed 20 weeks. Section 3(2) (b) of the Act provides for termination in circumstances where the pregnancy exceeds 20 weeks but does not exceed 24 weeks.”

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