Recently, the hon'ble apex Court has held that the rights of reproductive autonomy, privacy, and dignity under Article 21 provide the right of choice to unmarried women to decide whether or not to bear children on the same footing as married women. The instant case of X v. the Principal Secretary, Health and Family Welfare Department, Govt. NCT of Delhi and Anr1 has a huge bearing on upholding the reproductive rights of women and has paved way for unmarried women in India to access safe abortions equating their status to that of married women for the purposes of medical termination of pregnancy laws. This historic verdict has also used the term 'woman' as inclusive of persons other than cis women who may require access to safe abortions. Given this significant development, the authors intend to reflect on the current position of the law in India about medical termination of pregnancy and outline leading case laws on the issue.

Rule 3-B of the Medical Termination of Pregnancy Rules, 2003 (hereinafter, the Rules) provides categories of women as being eligible for termination of pregnancy under Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 (hereinafter, the Act) for a period of up to 24 weeks of pregnancy. The categories in the Rule include,

  1. survivors of sexual assault or rape or incest,
  2. minors,
  3. change of marital status during ongoing pregnancy i.e. widowhood and divorce,
  4. women with physical disabilities2
  5. mentally ill women including mental retardation,
  6. the fetal malformation that has a 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
  7. women with pregnancy in humanitarian settings or disasters or emergencies as may be declared by the Government.3

The bench comprising Dr. D.Y. Chandrachud, A.S. Bopanna, and J.B. Pardiwala JJ. observed that the object of Section 3(2)(b) of the Act read with Rule 3-B of the Rules is to facilitate abortions between 20 weeks and 24 weeks of pregnancy which are rendered unwanted due to a change in the material circumstances of a woman. Given the same, there is no reason and rationale for the exclusion of unmarried or single women facing such change in circumstances from the ambit of the Rule.

It was further noted that a narrow interpretation including only married women would render the provision discriminatory and violative of Article 14 of the Indian Constitution. The Bench made a progressive observation that "Article 14 requires the state to refrain from denying to any person equality before the law or equal protection of laws. Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14."4

The Bench also relied on Deepika Singh v. Central Administrative Tribunal5 noting that familial relationships may take the form of unmarried partnerships or queer relationships and the legal recognition of the same is necessary to enable the individuals in non-traditional familial structures to avail the benefits of the Act. It is the law to decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes a 'permissible sex' creating unjust classifications and excluding groups based on their personal circumstances. "The rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman."6

This observation is extremely vital because the Court in para 71 has recognized that even married women form part of the class of survivors of sexual assault or rape. As the challenge to an exception to Section 375 of the Indian Penal Code, 1860 is pending consideration before the Court, it was observed further that notwithstanding the exception7 in Section 375, the words 'sexual assault' or 'rape' in Rule 3B(a) includes marital rape and sexual assault for the Act.


In Suchita Srivastava v. Chandigarh Admn.8 the factual matrix involved the victim becoming pregnant as a result of an alleged rape that took place while she was residing in a government-run welfare institution. The Chandigarh Administration approached the High Court seeking approval of termination of the pregnancy because she was an orphan and suffered from a 'mild mental retardation'. Vide its order, the High Court directed the termination of her pregnancy despite the expert body's finding that the woman expressed her willingness to bear a child and favored the continuation of the pregnancy. The ruling was stayed by the apex Court owing to the urgency of the matter as the statutory limit for permitting the termination (20 weeks hitherto) was approaching.

The apex Court observed that the victim's reproductive choice should be respected 'inspite of other factors such as the lack of understanding of the sexual act as well as apprehensions about her capacity to carry the pregnancy to its full term and the assumption of maternal responsibilities thereafter'.9 The Bench observed that a woman's right to make reproductive choices is a dimension of 'Personal Liberty' as enshrined in Article 21 of the Indian Constitution. It was further observed that reproductive rights include a woman's entitlement to carry a pregnancy for its complete term, give birth, and raise children subsequently. The Act places reasonable restrictions on the exercise of reproductive choices. The Bench noted that the victim was not a minor and her mental condition was different from the condition of a mentally ill person as contemplated under Section 3(4)(a) of the Act.

It was noted that State must respect the personal autonomy of a mentally retarded woman on the question of termination of her pregnancy. Therefore, not obtaining the consent of a woman in this regard would amount to an unreasonable and arbitrary restriction on the reproductive rights of the victim. In the presence of the pervasive social evil of sex-selective abortions, the dilution of the requirement of consent would be misused. The decision of the High Court to perform an abortion at such a later stage had the potential to endanger her physical health and cause mental anguish to the victim and thus was held not to be in her 'best interests'.

In Meera Santosh Pal v. Union of India,10 the petitioner approached the apex Court under Article 32 of the Constitution seeking directions to the respondents to allow medical termination of her pregnancy of 24 weeks. The petitioner apprehended danger to her life as her fetus was diagnosed with Anencephaly, an untreatable defect that leaves unformed fetal skull bones and certainly causes the death of an infant during or shortly after birth. The Medical Board opined that the fetal condition was not compatible with extra-uterine life and continuation of the pregnancy could gravely endanger the physical and mental health of the petitioner. The Bench relied on Suchita Srivastava (supra) to note that 'a woman's right to make reproductive choices is also a dimension of 'personal liberty ' as understood under Article 21 of the Constitution.'11 The Bench considered whether the right to bodily integrity calls for permission to terminate the pregnancy of the petitioner. The Bench observed that though the pregnancy is in the 24th week, considering the danger to the life and certain inability of the fetus to survive it was appropriate to permit termination of pregnancy. It was further observed that the petitioner has the right to preserve and protect her life as she made an informed choice. The exercise of this right is within the limits of her reproductive autonomy.

In Tapasya Umesh Pisal v. Union of India,12 the apex Court allowed termination of pregnancy in the 24th week as the fetus was diagnosed with a cardiac anomaly and potential associated morbidity.

As per the Medical Board, there were clear chances of severe handicap and death if the baby was delivered alive. The Bench comprising of S.A. Bobde and L. Nageswara Rao JJ. allowed the writ petition directing the respondents to allow the petitioner to undergo medical termination of her pregnancy and observed that Section 3(2)(b) of the Act applied to the situation.

In Z v. State of Bihar13 the bench comprising Dipak Mishra, Amitava Roy, and A .M. Khanwilkar JJ. granted leave to the appellant seeking substitution of her name on online platforms, legal journals, and court records. There had been a delay on part of the authorities in the procedure calling for the termination of pregnancy and the apex Court noted that the same amounts to grave injury to her mental health. The stage of the pregnancy was mature and despite the appellant being a rape victim and the injury to her being a continuing one, the termination was not possible as there was a risk to her life. The Court further held that the victim will be compensated with Rs, 10,00,000 by the State so that she lives her life with dignity. It was observed that High Courts are required to be sensitive to such matters. Having ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1993, India has an international obligation to ensure the protection of the reproductive rights of women, protection of health and safety in working conditions and eliminate discrimination against women in healthcare upholding the principle of equality.

Prominently, the Court noted that the 'the fundamental concept relating to bodily integrity, personal autonomy and sovereignty over her body have to be given requisite respect while taking the decision and the concept of consent by a guardian in the case of major should not be overemphasized'14

In Mamta Verma v. Union of India,15 the apex Court allowed termination of pregnancy at the stage of 25 weeks and 1 day based on the prayer of the petitioner and medical evidence that the fetal condition was not compatible with life having anencephaly and would be born without a skull. It was acknowledged that continuation of the pregnancy will pose severe mental injury and risk to the life of the petitioner.

In Sarmishtha Chakrabortty v. Union of India,16 the apex Court acknowledged the view of the medical board that the petitioner was under the threat of severe mental injury if the pregnancy was continued and the fetus was found to have a cardiac anomaly which had the potential of high mortality and morbidity on post-birth surgeries. Considering the same, the court allowed the termination of the pregnancy.


Lack of awareness, social stigma, and insufficient infrastructural facilities stand as a hurdle to safe legal abortions in our society. Gender insensitivity, bias, and stereotypes further add to the deep-rooted judgement toward women's reproductive health and personal autonomy. The apex Court in particular has recognized that as we head towards a gender-equal society, our laws should address the societal realities and evolve accordingly. The purposive interpretation given by the apex Court in X v. the Principal Secretary (supra), will pave way for legal and safe abortions for women in India. Reproductive autonomy is a facet of the right to privacy17 and it has been propounded by the apex Court of the country that the statutory right of a woman to proceed with the termination of her pregnancy under the Act is relatable to her constitutional right to make reproductive decisions qua Article 21 of the Constitution18.


1. X v. the Principal Secretary, Health and Family Welfare Department, Govt. NCT of Delhi and Anr, Civil Appeal No 5802 of 2022: 2022 SCC OnLine SC 1321.

2. Major disabilities as per the criteria stipulated under the Rights of Persons with Disabilities Act, 2016.

3. Rule 3B, Medical Termination of Pregnancy Rules, 2003.

4. supra note 1 at 124.

5. Deepika Singh v. Central Administrative Tribunal 2022 SCC OnLine SC 1088.

6. supra note 1 at 124.

7. Exception 2 to Section 375, IPC – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. It is pertinent to note that in Independent Thought v. Union of India (2017) 10 SCC 800, the hon'ble Supreme Court raised the age of consent to 18 years and read down Exception 2 to Section 375 in the words 'Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape', notwithstanding the marital status of the woman.

8. Suchita Srivastava v. Chandigarh Admn (2009) 9 SCC 1.

9. Id. at 19

10. Meera Santosh Pal v. Union of India (2017) 3 SCC 462.

11. Id. at 9.

12. Tapasya Umesh Pisal v. Union of India (2018) 12 SCC 57.

13. Z v. State of Bihar (2018) 11 SCC 572.

14. Id. at 61.

15. Mamta Verma v. Union of India (2018) 14 SCC 289.

16. Sarmishtha Chakrabortty v. Union of India (2018) 13 SCC 339.

17. K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.

18. Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1.

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