Woman Alone Has Right Over Her Body; She's The Ultimate Decision Maker On Abortion : Supreme Court

The order was passed by a bench of Justices BV Nagarathna and Ujjal Bhuyan was hearing an urgent plea of the survivor who approached the top court after being denied relief by the Gujarat High Court.

Besides highlighting how the trauma of rape might be perpetuated when a survivor is forced to give birth to a child conceived as a result of the sexual assault, the bench also pointed out that the right of every woman to make autonomous reproductive choices without interference from the State was central to the idea of human dignity. The order states:

“In the context of abortion, the right of dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy. Although human dignity inheres in every individual, it is susceptible to violation by external conditions and treatment imposed by the State. The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity.”

Deprivation of access to reproductive healthcare, apart from being injurious to the emotional and physical well-being of the woman, also injured the dignity of the woman, the court noted. It drew support from a host of cases delivered by the Supreme Court dealing with the issue of reproductive autonomy and access to reproductive healthcare, such as Suchitra Srivastava (2009), in which the right of a woman to have reproductive choices was held to be an insegregable part of her personal liberty under Article 21 of the Constitution, recognising her ‘sacrosanct’ right to her bodily integrity.

The Justice Nagarathna-led bench also relied on Murugan Nayakkar (2017) and Sarmishtha Chakraborty (2018). In the first case, the Supreme Court allowed the plea of a minor rape survivor and allowed her pregnancy to be terminated in terms of the opinion of a medical board. In the second, a woman was allowed to abort her over 20-week-old foetus with severe abnormalities, before the 2021 amendment to the Medical Termination of Pregnancy Act, 1971 which increased the upper limit of the legal window for an abortion from 20 to 24 weeks.

While allowing the current plea filed by the survivor who was allegedly raped under the false pretext of marriage, the bench referred to a 2022 judgment in which a three-judge bench led by Justice Chandrachud (as he was then) allowed an unmarried woman in a live-in relationship to abort her pregnancy of 24 weeks after noting that the 2021 amendment used the term ‘partner’ instead of ‘husband’ in the explanation to Section 3 of the act.

In the X v. Principal Secretary ruling, the Supreme Court made important observations on the reproductive autonomy of a woman. Women did not need to seek her family’s consent, nor could doctors impose extra-legal conditions, the court said. The only cases in which a woman would require her guardian’s consent is if she is a minor or suffers from mental illness.

The bench of Justices Nagarathna and Bhuyan, in its order, excerpted the following passage from the 2022 judgment in reaffirmation of the principles it espoused –

“A woman can become pregnant by choice irrespective of her marital status. In case the pregnancy is wanted, it is equally shared by both the partners. However, in case of unwanted or incidental pregnancy, the burden invariably falls on the pregnant woman affecting her mental and physical health. Article 21 of the Constitution recognizes 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.”

Today’s verdict was delivered after hearing an urgent plea by a rape survivor who was turned away by the Gujarat High Court despite a favourable medical opinion endorsing her fitness to undergo an abortion. The petitioner was an Adivasi woman from a remote village in Gujarat who was allegedly raped under the false pretext of marriage. The petitioner’s pregnancy is now nearing 28 weeks.

Case Details

XYZ v. State of Gujarat | Diary No. 33790 of 2023

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