Finally, equal abortion rights for India’s unmarried women

The taboo around sex outside of marriage means it can be hard to access safe pregnancy termination. But a recent court ruling could help to change things, writes Nilanjana Bhowmick.

On 30 September 2022, India’s top court voided a rule that differentiated between married and unmarried women and their rights to a safe abortion. Previously, in 2021, a historic amendment to India’s abortion law had finally allowed unmarried women to undergo pregnancy terminations – but married women were permitted abortions until four weeks later. The court ruling removed that distinction, setting the limit at 24 weeks for all.

Despite widespread social conservatism, our abortion laws have been quite progressive. Abortions for married women have been legal since 1971 under the Medical Termination of Pregnancy Act and Rules (MTP).

But lawmakers have faced challenges making these laws more gender-responsive. The continuing preference for sons meant families often opted to abort female foetuses once prenatal sex-determination technology became available. So lawmakers made sex-selective abortions illegal – driving the practice underground.

Perpetuating stereotypes

The court’s ruling calls out the distinction between married and unmarried women as ‘artificial’, saying that maintaining it in law would ‘perpetuate the stereotype that only married women indulge in sexual activities’. It also stressed that ‘reproductive autonomy is closely linked to bodily autonomy’, bearing in mind ‘the consequences of unwanted pregnancy on a woman’.

The ruling is at once an attempt to make the process of termination of pregnancy a safe and taboo-free experience. In a country where no-one much cares about women’s experiences, and where even the judiciary is infamously patriarchal, this is a huge win – not just for women’s choice and agency but also in helping identify abortion as a health issue. Unsafe abortions, after all, remain the third leading cause of maternal mortality in India. According to a study in The Lancet, of the 15.6 million abortions that took place in India in 2015, a majority were conducted outside medical centres.

Unequal access to abortion

Single women often find it difficult to access safe abortion owing to the taboo surrounding pregnancy outside marriage. If a girl or woman was under 18, her doctor had to report the case to the police. This led to fear among minors, or their guardians, of being harassed under the Protection of Children from Sexual Offences Act. The September 2022 ruling exempts doctors from reporting to the police, which means minors can now access abortion at safe medical facilities.

It also offers another first by insisting that the ‘meaning of rape must include marital rape’ within the ambit of the MTP Act. The Indian Supreme Court is currently deliberating upon a petition to criminalize marital rape. Only time will tell if this ruling will act as a precursor to what the Court decides on that issue.

I see it as a collective victory for Indian women, as well as an important addition to the global debate that has erupted since the US Supreme Court overturned Roe v Wade last year. If that was a bad precedent for women’s rights, here is a hopeful attempt to reset the course.