Supreme Court : Irrespective of their marital status women, have right to safe and legal abortion

A bench presided by Justice D Y Chandrachud held while the 1971 Act was concerned with married women, the statement of objects and reasons to the 2021 amendment does not differentiate between married and unmarried and therefore, “all women entitled to safe and legal abortion”.

  • The Court ruled the rights available to married women under the Medical Termination of Pregnancy Act,1971, to abort a foetus will also be available to unmarried ones.
  • The bench said the artificial distinction between married and unmarried women cannot be sustained and that women must have the autonomy to have free exercise of these rights.
  • While stressing reproductive autonomy is closely linked to bodily autonomy, the court ruled that the right to choose contraception, the number of children and whether or not to abort have to be taken without the influence of social factors.
  • Pointing to the abortion rights for rape survivors, the court said married women may also form part of a class of survivors of sexual assault and rape as it is quite possible that a woman may become pregnant on account of a non-consensual act by the husband
  • In this context, the court said the meaning of rape must include the meaning of marital rape solely within the meaning of the MTP Act and Rules. The court also held the MTP Act and Protection of Children from Sexual Offences (Pocso) Act has to be read harmoniously and there is no need to disclose the identity of minors under the MTP Act.

It was only in 2009 that the Supreme Court held that a woman’s right to make reproductive choices is also a dimension of personal liberty.

The Medical Termination of Pregnancy Act 1971 was amended in 2021. While it increased the permissible time limit for abortion from 20 weeks to 24 weeks, it did so for only certain categories of women. This classification of women finds mention in the Rules, currently under challenge in the Delhi High Court. The list is limited — minors, rape victims, women with change in marital status during pregnancy (widowhood and divorce), foetal anomalies, women with physical disabilities and women with mental illness including mental retardation — and excludes all other women.


            In landmark cases such as Suchita Srivastava v. Chandigarh Admin and Devika Biswas v. Union of India, the Supreme Court has

held a woman’s reproductive autonomy to be her fundamental right to privacy, that right to reproductive autonomy is an integral part of Right to Life under Article 21 of Constitution of India. The Apex Court stressed that a medical procedure of abortion cannot be carried out on a woman if she has not consented to it. Hence, the right to reproductive autonomy was held as a Fundamental Right.

            In March 2020, the Government  amended the 1971 Medical Termination of Pregnancy (MTP) Act

                                                      The amendment has raised the upper limit of MTP from 20 to 24 weeks for women including rape survivors, victims of incest, differently abled women and minors.

                   Failure of contraception is also acknowledged and MTP is now available to “any woman or her partner” replacing the old provision for “only married woman or her husband.” the change also accepts failure of contraception as a valid reason for abortion not just in married but also in unmarried women. The amendment includes the formation of a medical board in each state, which will decide whether an abortion can be performed or not

                                 The upper gestation limit will not apply in cases of substantial foetal abnormalities diagnosed by a Medical Board. 

                          If pregnancy has to be terminated in 20 weeks, the opinion of one doctor is required. But beyond that, opinion of two doctors would be needed and one of them has to be a government physician.


Medical Termination of Pregnancy Act of 1971

  • The law largely allows a woman to abort only if continuance of the pregnancy, according to a medical practitioner, involves a risk to her life; grave physical or mental injury; or risk of serious foetal abnormalities. This is the case even in case the pregnancy is less than 12 weeks old.
  • Abortion, as per the 1971 Act, is not permissible after 20 weeks of pregnancy; now changed to 24 weeks; only favour “special categories of women”, which include rape survivors, victims of incest, those who are differently-abled and minors.
  • While it protects married woman by allowing them to terminate an “unplanned and unwanted pregnancy, the same is not extended to single women” now amended,
  • The Act does not allow abortion of pregnancy in the case of minors or mentally ill persons without the consent of the guardian.


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