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Why exclude unmarried women from terminating pregnancies up to 24 weeks: SC on abortion law

The Supreme Court on Friday careworn the necessity to convey unmarried women at parity with married women with regard to termination of being pregnant below the Medical Termination of Pregnancy (MTP) Act 1971.

A bench headed by Justice DY Chandrachud voiced resolve and mulled over how to draft a judgment that may guarantee such parity, enabling unmarried women to terminate their pregnancies and defend their bodily autonomy and dignity.

While saying that there’s no logical motive for such differentiation, Justice Chandrachud remarked, “An unmarried girl who is a major and suffers an unwanted pregnancy, why should she be excluded from termination up to 24 weeks if a married woman is allowed?’

The court in its interim order in the present case had earlier observed that the distinction between a married and unmarried woman does not bear a nexus to the basic purpose and object which is sought to be achieved by Parliament, which is conveyed specifically by the provisions of Explanation 1 to Section 3 of the Act.

The court on Friday considered issuing a verdict to extend the application of Section 3(2)(b) of the Act (which allows termination of pregnancies up to 24 weeks) to unmarried women as well to enable them to terminate pregnancies which are 20-24 weeks old.

The law of medical termination of pregnancies in India, through the 1971 Act and the 2003 Rules, bars unmarried women from terminating pregnancies which are 20-24 weeks old.

READ | No basis to deny abortion to unmarried women, says SC as it allows plea to terminate 24-week pregnancy

Why exclude unmarried woman, asks bench

The bench suggested that the benefit of termination on the grounds of mental anguish could be made applicable to all women by striking down an expression “for the purposes of clause a” from Explanation 1 to Section 3(2).

Clause a of part 3(2) talks about pregnancies that are up to 20 weeks previous, whereas clause b talks about pregnancies that are 20-24 weeks previous.

The bench noticed that, as per the statute (Explanation 1), failure of a household planning system is regarded and presumed to be reason behind psychological anguish. However, the expression ‘for purpose of clause a’ makes that presumption relevant to pregnancies lower than 20 weeks previous.

According to the highest court docket, if it strikes down the phrases “for purpose of clause a” as being manifestly arbitrary and violative of lady’s proper to autonomy and dignity, then the reason would apply to each clause a and the principles is not going to be restrictive.

Additional Solicitor General (*24*) Bhati, showing for Union of India, nonetheless, opined that the MTP Act doesn’t differentiate between married and unmarried women. Instead, it differentiates between pregnancies that are up to 20 and 24 weeks previous.

The ASG added that pregnancies upto 20 weeks are allowed to be terminated regardless of the standing. However, termination upto 24 weeks is allowed for particular women and applies to seven ‘extremely vulnerable categories of women’.

Justice DY Chandrachud noticed that unmarried women who’re excluded might also be very weak and should have been exploited.

“Why exclude her? And how do we bring them in?” Justice Chandrachud mentioned.

SC says want forward-looking interpretation of MTP Act

He additional careworn on having a forward-looking interpretation to the law.

“We can extrapolate it by saying, that an unmarried woman pregnant beyond 20 weeks, source of her pregnancy may also be same vulnerability as applicable to other women. We must have a forward looking interpretation of this, so much of development has taken place in law,” Justice Chandrachud mentioned.

The ASG argued that termination of pregnancies upto 24 weeks just isn’t a simple proposition, main motive being the well being of the lady herself. She added that whereas it’s straightforward to perform termination of pregnancies upto 20 weeks safely with minimal infrastructure, these that are 20-24 weeks require extra knowledgeable arms and better infrastructure.

The bench, nonetheless, noticed that marriage by itself has nothing to do with the danger.

“Ms Bhati, even a woman who is married, beyond 20 weeks there may be a heightened risk of danger to the mother and if there’s a risk no one is saying you must still carry out. You’re trying to protect autonomy and choice of mother but if her life itself is in danger, no one is saying yet still you must carry out termination. In this case they carried it out safely as there was no risk to her life. We also said if there’s risk follow your medical protocols,” Justice Chandrachud mentioned.

Legislature’s involved about pregnant women each inside and out of doors marriage

The Bench identified that the phrase used within the related part of the Act is ‘partner’ and never ‘husband’, which clarifies the Legislature’s intent.

“Ultimately what does Legislature intend? It has used word partner and not husband. So Legislature is concerned not merely about women who undergo pregnancy within marriage but outside marriage. An unmarried girl who’s a major and suffers an unwanted pregnancy, why should she be excluded from termination upto 24 weeks if a married woman is allowed. Danger to life is as much in case of unmarried woman as its in married woman, in which case there’s no logical reason for the differentiation.”

The ASG, nonetheless, sought to help the court docket with reviews from specialists, to apprise the court docket as to what weighed with specialists to not enable termination of pregnancies upto 24 weeks freely for all.

The bench requested the ASG to file a brief set of submissions, and in addition help the court docket with judgments the place unmarried women have been handled at par with married women in these instances.

The court docket additional careworn on the necessity for the bench to draft a correct judgment as it’s taking duty of jurisprudential evolution of law.

“We must do it properly. Ultimately we are the authors. We are taking responsibility of jurisprudential evolution of law,” Justice Chandrachud mentioned.

The court docket will hear the matter subsequent on August 10, 2022.

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