Abortion Rights and Marital Rape

Syllabus: General Studies Paper 2

In a significant ruling on reproductive rights, the Supreme Court extended the right to safe and legal abortion up to 24 weeks of pregnancy to unmarried and single women, saying it is the “right of every woman to make reproductive choices without undue interference from the State”

Now, all women in the country, regardless of marital status, can undergo an abortion up to 24 weeks into pregnancy.

Ruling 

• The bench ruling on a plea by an unmarried pregnant woman who had been in a consensual relationship but was denied the right to abortion because she was past the 20-week limit.
• The bench made it clear that provisions of the Medical Termination of Pregnancy Act cannot be interpreted to deny that right to single women beyond 20 weeks of pregnancy.

Bench Arguments

• The bench ruled pregnancy is the sole prerogative of a woman and the circumstances are unique and may vary for each with regard to economic, cultural or social factors.
• The bench said, were “to be interpreted such that its benefits extended only to married women, it would perpetuate the stereotype and socially held notion that only married women indulge in sexual intercourse, and that consequently, the benefits in law ought to extend only to them”.
• “This artificial distinction between married and single women is not constitutionally sustainable. The benefits in law extend equally to both single and married women,”.
• Article 21 of the Constitution “recognises and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake. 
• Importantly, it is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion.
• Depriving women of autonomy not only over their bodies but also over their lives would be an affront to their dignity.
• Right to bodily autonomy of the pregnant woman will ensure social justice.
• Complicated life circumstances play a part in decision of abortion which only the woman can choose on her own terms without external interference or influence.

Constitutionality

• Article 21 of the Constitution “recognises and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake.
• Article 51A states to renounce practices derogatory to the dignity of women. Depriving women of autonomy not only over their bodies but also over their lives would be an affront to their dignity.

Medical Termination of Pregnancy Act, 1971

• In 1971, the Medical Termination of Pregnancy (MTP) Act was enacted. 
• An Act to provide for the termination of certain pregnancies by registered Medical Practitioners and for matters connected therewith or incidental thereto.
• It allowed abortion within 12 weeks of pregnancy requiring the opinion of one doctor and between 12 and 20 weeks requires opinion of two doctors.
• This law has been amended twice since and the 2021 amendment has expanded the scope of the law. 
• The law provides for a set of reasons based on which abortion can be accessed.
• Increased gestation limit: The bill has enhanced the upper gestation limit from 20 to 24 weeks for special categories of women. 
• Opinion of professional: Bill has proposed a requirement of the opinion of one doctor for termination of pregnancy, up to 20 weeks of gestation and introducing the requirement of opinion of two doctors for termination of pregnancy for 20-24 weeks of gestation.
• Medical board: The composition, functions and other details of the Medical Board to be prescribed subsequently in Rules under the Act.
• Identity protection: Name and other particulars of a woman whose pregnancy has been terminated shall not be revealed.

Abortion laws around the world:

• Abortions are illegal in 24 countries –where about 90 million or 5 per cent of women of reproductive age reside.
• Some of these include Senegal, Mauritania, Egypt, Laos, Philippines, Honduras and Poland. In El Salvador, women undergoing abortions have been found guilty of “aggravated homicide”, including miscarriages.
• The Judgment struck down the laws that made abortion illegal in several US States. It ruled that abortion would be allowed up to the point of ‘foetal viability‘, that is, the time after which a foetus can survive outside the womb.The Judgment tried to establish a balance between the Right of Women to ‘bodily autonomy’ vis-a-vis the ‘Right to Life’ of the foetus. (Pro-choice vs Pro-life debate).
• Canada: The court ruled that the restriction to abortion law violated a woman’s right to “life, liberty and security of the person” that was enshrined in Canada’s Charter of Rights and Freedoms.
• New Zealand decriminalised abortions in 2020, extending the legal period to 20 weeks of pregnancy
• In 2021, in Colombia, the Constitutional court voted to legalise abortion before 24 weeks of pregnancy as a result of efforts from human rights and civil society groups.

Marital Rape

The term marital rape (also referred to as spousal rape) refers to unwanted intercourse by a man on his wife obtained by force, threat of force or physical violence or when she is unable to give consent. The words unwanted intercourse refers to all sorts of penetration (whether anal, vaginal or oral) perpetrated against her will or without her consent.

• The bench also said that the meaning of rape must include marital rape for the purpose of the MTP Act.
• Marital rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. The lack of consent is the essential element and need not involve physical violence.
• Any other interpretation would have the effect of compelling a woman to give birth to and raise a child with a partner who inflicts mental and physical harm upon her.

Section 375: This section provides the definition of rape. Under this, a man is said to commit “rape” who had sexual intercourse with a woman under certain circumstances. This section also specifies the circumstances like against her will, without her consent, etc.

Way forward

• Law must not remain static and its interpretation should keep in mind the changing social context and advance the cause of social justice. The interpretation of the MTP Act and Rules must evolve and consider the social realities of today.
• Transformative constitutionalism promotes and engenders societal change by ensuring that every individual is capable of enjoying the life and liberties guaranteed under the Constitution
• The law must remain cognizant of the fact that changes in society have ushered in significant changes in family structures.