Whispers of Autonomy: Delving into Abortion Rights for Unmarried Women in India

Categories: Journal, JOURNAL
          ISSN (ONLINE):- 2584-1106 

“Whispers of Autonomy: Delving into Abortion Rights for Unmarried  Women in India” 

Authored by:- Khushi gupta
Ramaiah college of Law, Bengaluru

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  1. Abstract:

In the intricate tapestry of India’s diverse culture and traditions, the issue of abortion,  particularly for unmarried women, stands as a battleground of rights and choices. Despite  India’s progress, equal abortion rights for unmarried women remain a contentious concern. This  research paper explores the historical evolution of abortion laws in India, focusing on the  Medical Termination of Pregnancy (MTP) Act of 1971. It delves into legislative milestones,  judicial interventions, and the complex landscape of abortion rights for unmarried women  beyond the 20-week timeframe. The paper culminates in a critical analysis of the recent  landmark judgment in X v. Principal Secretary, affirming reproductive autonomy for unmarried  women and highlighting the need for legislative alignment with lived realities. 

  1. Keywords:

India, abortion rights, unmarried women, Medical Termination of Pregnancy (MTP) Act,  judicial history, reproductive autonomy, landmark judgment, societal norms, legal landscape,  women’s rights. 

III. Research Methodology: 

This research employs a historical analysis of abortion laws in India, tracing the trajectory from  the criminalization of abortion in the 19th century to the enactment of the MTP Act in 1971. It  includes an exploration of legislative milestones and amendments, focusing on the Shantilal  Shah Committee’s recommendations and the subsequent parliamentary approval of the MTP  Act. The study also delves into judicial history, examining cases like Suchita Srivastava and,  prominently, X v. Principal Secretary. 

  1. Objectives:
  2. To Examine the Historical Evolution of abortion laws in India, emphasizing legislative  changes and societal attitudes. 
  3. To analyze MTP Act of 1971 and evaluate the MTP Act’s impact on abortion rights,  emphasizing its provisions, protections, and the paradigm shift it brought.
  4. To explore Judicial Landscape and interventions for law relating to abortion rights of an  unmarried women in India via assessing the recent landmark judgment of X v. Principal  Secretary case. 
  5. Scope:

The scope of this paper encompasses the evolution of abortion laws in India, particularly the  MTP Act, and the recent judicial interpretation in X v. Principal Secretary. The study also  explores societal norms, legislative milestones, and the lived experiences of unmarried women  seeking reproductive autonomy. 

  1. Introduction

In the heartland of diverse cultures and traditions, India has long been a land of contrasts. A  country where ancient customs coexist with modern values, and where progress often  encounters resistance from deeply entrenched norms. One such battleground of rights and  choices is the issue of abortion, particularly when it comes to unmarried women. In a society  that has made significant strides in various areas, the struggle for equal abortion rights for  unmarried women remains a contentious and crucial concern. This blog delves into the intricate  tapestry of laws, attitudes, and the lived experiences of unmarried women seeking reproductive  autonomy in India.1 

Abortion is a deeply sensitive and complex issue, with societal, ethical, and legal dimensions  that vary across cultures and nations. In the context of India, the right to abortion is a  fundamental aspect of reproductive rights. However, the specific challenges faced by  unmarried women in exercising this right warrant closer examination. This research paper  seeks to unravel the intricate tapestry of abortion rights for unmarried women in India,  elucidating the legal landscape and judicial interventions that have shaped this discourse. 

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VII. Historical evolution of law with respect to abortion in India. 

Understanding the current abortion rights for unmarried women necessitates a retrospective  analysis of the historical development of abortion laws in India. The paper delves into the  various legislative milestones, including the Medical Termination of Pregnancy (MTP) Act of  

1971, and explores how subsequent amendments have shaped the contours of abortion rights  for all women, regardless of marital status. 

Until the 1970s, abortion in India was not only frowned upon but was also illegal, carrying  severe legal consequences. Section 312 of the Indian Penal Code (IPC) criminalized abortion,  subjecting women to the threat of imprisonment for three years and fines. Rooted in Victorian  English morality, this legal framework persisted for over a century, reflecting societal attitudes  and norms of that era. 

The paradigm shift towards legalizing abortion in India commenced in the mid-1960s with the  establishment of the Shantilal Shah Committee. Chaired by medical professional Dr. Shantilal  Shah, the committee, in its 1964 report, advocated for the liberalization of abortion laws.  Recognizing the need to address unsafe abortions and reduce maternal mortality, the committee  laid the foundation for a significant legislative change. 

Building upon the recommendations of the Shantilal Shah Committee, the Indian government  introduced a medical termination of pregnancy bill in the Lok Sabha and Rajya Sabha. The bill,  reflecting a progressive stance, received parliamentary approval in August 1971, paving the  way for the enactment of the Medical Termination of Pregnancy (MTP) Act. 

Effectively enforced on April 1, 1972, the MTP Act applied to the entire nation, with  accompanying MTP Rules introduced in 1975 to provide operational guidelines. This  legislative milestone not only marked the decriminalization of abortion but also established a  legal framework that aimed to protect women’s reproductive rights and reduce the prevalence  of unsafe abortion practices.2 

The MTP Act conferred significant authority upon registered medical practitioners, granting  them the ability to perform abortions under specified circumstances. Notably, the Act provided  immunity to doctors conducting abortions in accordance with its provisions, shielding them  from prosecution under Section 312 IPC. 

The key provisions of the MTP Act included allowing abortion up to 20 weeks of pregnancy.  The Act further extended various protections and rights, including:3 

1 Tarun, ‘Abortion Laws in India: A Historical Overview’ (Legal Service India, 2023) accessed 14 December  2023 [https://www.legalserviceindia.com/legal/article-11455-abortion-laws-in-india-a-historical-overview.html].

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  1. Termination of Unwanted Pregnancies: Up to 12 weeks, and with the approval of a  second doctor, up to 20 weeks. 
  2. Protection for Medical Practitioners: Registered allopathic medical practitioners  were safeguarded from legal or criminal proceedings for any injury caused to a woman  during an abortion procedure, provided it adhered to the MTP Act’s provisions. 
  3. Grounds for Abortion: Recognizing the multifaceted aspects of women’s  reproductive health, the MTP Act allowed abortions on grounds such as grave risk to  the physical or mental health of the woman, unplanned pregnancies, pregnancies  resulting from rape, or substantial reasons to suspect that the child may be born with  deformity or disease. 

In essence, the MTP Act represented a monumental shift in India’s approach to abortion,  transforming it from a criminalized act to a protected reproductive right. This legal framework  underscored the government’s commitment to women’s health, recognizing the importance of  safe and regulated abortion practices in the broader context of reproductive rights. 

While the Medical Termination of Pregnancy (MTP) Act of 1971 brought a crucial shift by  legalizing abortion up to 20 weeks of pregnancy, the judicial history surrounding abortions  beyond this timeframe reveals a complex and evolving landscape in India. The absence of a  well-defined legal framework has left the judiciary with substantial discretionary powers,  resulting in varying and sometimes contradictory judgments. 

The landmark case of Suchita Srivastava underscored the broader dimensions of Article 21 of  the Indian Constitution, linking the right to life and personal liberty with a woman’s right to  make reproductive choices. This decision emphasized the components of privacy, personal  liberty, dignity, and bodily integrity as integral to a woman’s reproductive rights. 

On the contrary, the judicial history of abortion rights beyond 20 weeks in India reflects a  nuanced and evolving terrain, marked by inconsistencies, challenges, and the ongoing struggle  to strike a balance between the rights of women and the considerations surrounding foetal life. 

VIII. Abortion under MTP Act. 

Abortion refers to the termination of a pregnancy by various medical methods or procedures.  It typically encompasses the deliberate ending of a pregnancy at any stage, whether it is before  the fetus is viable (able to survive outside the womb) or after viability.

The legislative backing to the concept of abortion in India lies under Medical Termination of  Pregnancies Act, 1971 hereinafter referred to as, ‘The Act’ 

Rule 3B of the MTP (Amendment) Rules 2021 lays down the categories of women eligible for  termination of pregnancy up to 24 weeks. 

“The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of sub-section (2) Section 3 of the Act, for a period of up to twenty-four weeks, namely: – 

(a) survivors of sexual assault or rape or incest; 

(b) minors; 

(c) change of marital status during the ongoing pregnancy (widowhood and divorce); (d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)]; 

(e) mentally ill women including mental retardation; 

(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and 

(g) women with pregnancy in humanitarian settings or disaster or emergency4 situations as may be declared by the Government.” 


2 Alby Stephan. K,History and future of abortion laws in India’ (Legality Simplified, 1 February 2023) accessed  15 December 2023 https://legalitysimplified.com/blogs/history-and-future-of-abortion-laws-in-india/ 3India, The Medical Termination of Pregnancy Act 1971 (No. 34 of 1971) [MTP Act]

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Status of unmarried women under the act: 

Within the scope of Rule 3(b), it becomes evident that unmarried women are not considered  eligible to undergo a pregnancy termination medically. 

For the matter of expanding the right to have an abortion to include single, unmarried women,  the question was presented to the Honorable Supreme Court as to whether Rule 3(b) is arbitrary  


  1. Recent judicial pronouncement under X versus The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr.6 

The recent judicial pronouncement in the case of X v. Principal Secretary marks a watershed  moment in the discourse on abortion rights in India. This groundbreaking decision, delivered  by the Apex Court bench of Judges D.Y. Chandrachud, A.S. Bopanna, and J.B. Pardiwala,  significantly expands the reproductive autonomy of unmarried women, challenging existing  norms and fostering a more inclusive legal framework. 

  • Background:

The X v. Principal Secretary case emerged from the denial of a 25-year-old unmarried woman’s  plea for abortion by the Delhi High Court. The Apex Court bench, acknowledging the  limitations in the High Court’s interpretation, intervened to grant temporary permission for the  woman’s abortion, pending evaluation by a medical board established by AIIMS Delhi. 

  • Key Holdings:

The Apex Court, led by Justice Chandrachud, emphasized the need for a purposive  interpretation of the Medical Termination of Pregnancy (MTP) Act. The court argued that the  legislative amendment replacing “husband” with “partner” demonstrated an evolving  understanding of societal norms, urging a broader and more inclusive application of the law. 

The Supreme Court declared Rule 3B of the Medical Termination of Pregnancy Rules (MTPR)  unconstitutional for excluding unmarried women in live-in relationships from accessing  abortion services. The bench maintained that restricting the benefits of MTPR exclusively to  married women perpetuated societal stereotypes and violated the right to equality under the  law. 

The court unequivocally affirmed that unmarried women possess the same reproductive  autonomy rights as their married counterparts. This landmark judgment underscored the right  


to reproductive decisional autonomy, encapsulating the freedom to make decisions about  contraception, pregnancy, and childbearing without third-party influence. 

The judgment reinterpreted the term “change in marital status” in Rule 3B(c) of MTPR,  extending its application to unmarried women in long-term relationships. The court rejected  distinctions between married and unmarried women, emphasizing that societal changes  demanded a readjustment of laws to advance social justice. 

4 India, The Medical Termination of Pregnancy Act 1971, section 3 [MTP Act, s 3b]
and in contravention of Article 14 of the Constitution of India in X versus The Principal  Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr.5
X versus The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr [2022  SCC OnLine SC 1321] 

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  • Analysis:

The X v. Principal Secretary case stands as a beacon of progress in the realm of abortion rights  for unmarried women in India. The court’s resolute commitment to a purposive interpretation  of the law, rejection of discriminatory practices, and affirmation of reproductive autonomy for  all women collectively pave the way for a more inclusive and just legal landscape. This  landmark judgment not only transforms the lives of individual women but also contributes to  the ongoing narrative surrounding women’s rights and societal evolution By upholding their  reproductive autonomy, challenging societal stereotypes, and ensuring inclusion in abortion  benefits, the decision contributes to fostering a more equitable and just environment for  unmarried women to exercise their rights freely and without coercion. This landmark judgment  marks a positive shift towards recognizing and respecting the agency and autonomy of  unmarried women in matters central to their reproductive well-being. 

  1. Conclusion and critical analysis.

In the realm of legal progress, the Supreme Court’s monumental decision granting unmarried  women the right to terminate pregnancies up to 24 weeks stands as a beacon of hope. However,  as we delve into the lived experiences of women like Shalini, the journey from legal  pronouncement to practical empowerment reveals a challenging landscape. 

At the heart of the matter is the absence of a clear directive for legislative amendments, leaving  the transformative potential of the court’s decision somewhat tethered. The complex dance  between the Medical Termination of Pregnancy Act and the Indian Penal Code adds layers of  hesitation for healthcare professionals, creating a palpable reluctance to embrace the spirit of  the Supreme Court’s decree. 

Compounding the issue is the lingering inefficiency of the current Medical Termination of  Pregnancy (MTP) (Amendment) Rules, 2021, with Rule 3(2)(b) acting as an inadvertent  gatekeeper rather than an enabler. Unmarried women find themselves relegated to ‘special 

categories,’ grappling with the stark reality that legal victories on paper don’t always translate  seamlessly into their daily lives. 

Amidst these challenges, there emerges a collective call for legislative intervention, a clarion  call for the government to bridge the gap between legal intent and lived reality. The proactive  steps taken by activists, legal experts, and healthcare professionals, epitomized by Dr. Nikhil  Datar’s ongoing efforts, exemplify the resilience of those striving to reshape the landscape. 

As we navigate this terrain, it becomes imperative to humanize the discourse, recognizing that  behind every legal provision and courtroom battle, there are real lives, real struggles, and real  aspirations. The journey toward comprehensive abortion rights for unmarried women is not  just a legal expedition; it’s a pursuit of dignity, agency, and the fundamental right to shape one’s  destiny. 

In conclusion, the path forward calls for a harmonious blend of legal precision and  compassionate understanding. It beckons us to envision a future where the promise of  reproductive autonomy for unmarried women isn’t just a legal tenet but a tangible reality etched  into the fabric of their everyday lives. 

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  1. References
  • X versus The Principal Secretary, Health and Family Welfare Department, Govt. of  NCT of Delhi & Anr [2022 SCC OnLine SC 1321]
  • India, The Medical Termination of Pregnancy Act 1971, section 3 [MTP Act, s 3b] Alby Stephan. K,History and future of abortion laws in India’ (Legality Simplified, 1  February 2023) accessed 15 December 2023  https://legalitysimplified.com/blogs/history-and-future-of-abortion-laws-in-india/ 
  • Tarun, ‘Abortion Laws in India: A Historical Overview’ (Legal Service India, 2023)  accessed 14 December 2023 [https://www.legalserviceindia.com/legal/article-11455- abortion-laws-in-india-a-historical-overview.html]

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