A DECISIVE SHIFT ON THE DISCOURSE OF ABORTION RIGHTS

Recently, a single woman, residing in Delhi, approached the Delhi High Court seeking permission to terminate her 24th week old pregnancy. The reason for her wanting a Medical Termination of Pregnancy (MTP) at this stage was a change in her personal circumstances - her partner did not want to support her and the pregnancy any more and she did not want to continue this journey on her own because of her practical realities.

The Delhi High Court refused her permission by referring to the recently amended provisions of the MTP Act, which recognized the need for a request for an MTP by an unmarried woman on the grounds of contraceptive failure; however, this was only till 20 weeks of gestational limit. A change in circumstance was available, as per the law, only for a married woman up to 24 weeks.

A PROGRESSIVE JUDGMENT

The woman filed an appeal before the Supreme Court of India, which in the first instance, granted her permission to terminate the pregnancy based on the report of the medical board concerned. It also heard the case on the aspect of the constitutionality of the classification based on the marital status of a woman that the law, particularly the rules, has created.

FIVE KEY ASPECTS OF THE JUDGMENT

FIRST, it acknowledges the context of criminality in which access to abortion in India is.

SECOND, The judgment basically holds that what is accessible and available for a married pregnant woman should be accessible and available to any pregnant woman, and that a classification based on marital status is fallacious and illegal.

THIRD, it acknowledges that a pregnancy which is a result of rape can be one due to forced sexual intercourse within a marriage, and while the issue of marital rape being recognized as an offence is before the Supreme Court, that a pregnancy can be sought to be terminated on the ground of it being as result of rape by the husband of the pregnant woman must be recognized.

FOURTH, This judgment clarified that while the need to report mandatorily remains, the identity of the pregnant person need not be disclosed in the cases of consensual sexual activity and where the minor and/or her guardian requests the medical service provider to maintain confidentiality.

FIFTH, recognition of the fact that the law in its current form is non-inclusive and the terminology used is exclusionary. It also recognizes the extra­legal requirements that medical practitioners insist upon before providing MTP services, only to safeguard

themselves due to the context of criminality.

CONCLUSION

This judgment is a ray of hope and brings to the fore the possibility of the law acknowledging the right of every person capable of becoming pregnant to be able to decide what she thinks is best for her without the need for any third party authorization, and only supported by medical advice.