Ageism in Sexuality

How the Supreme Court’s historical judgment of 2022 can affect us

How the Supreme Court’s historical judgment of 2022 can affect us

It all started when a woman’s petition for terminating her 22 week pregnancy was rejected by the Delhi High Court. Her partner had refused to marry her, leaving her wary of the social stigma and harassment that would undoubtedly come her way if she were to carry the pregnancy to term. However, her Petition was rejected by the Delhi High Court on the ground that Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 (“MTP Act”) has no applicability to a woman who is unmarried and was in a consensual relationship

The matter reached the Supreme Court in July, and it was pleased to pass an Order allowing her to terminate the pregnancy pending the final Order of the appeal.

They held that the Medical Termination of Pregnancy (Amendment) Act, 2021 (“MTP Act”) is equally applicable to unmarried women as it is to married women

So why is this judgment historical? Who does it truly impact?

  • Inclusion of persons other than cis women
  • Even before delving into the law, the Judgment makes it clear that the term “woman” includes persons other than cis women who may require access to safe medical termination of their pregnancies. This in itself is monumental. Even though the laws in India pertaining to abortions are more progressive than many of its counterparts, so far none of these have included the abortion rights of anyone other than cis women.

    While judgments such as NALSA widen the scope of “sex” to include how people identify themselves and Arunkumar where the marriage between a man and a trans woman came to be recognised for the very first time, the jurisprudence has, so far been shockingly silent on the reproductive rights of anyone other than cis-women. 

    By recognising that the word “woman” in the Act includes persons other than cis women, the Supreme Court has already begun to fill the lacuna that existed between the way people identify themselves and the rights given to them under law. The fact that people with uteruses are not just cis women but are encompassed under the MTP Act is in itself worth celebrating.

    The effect of this is not in isolation and shall also trickle down to parallel legislatures such as Maternity Benefit Act, 1961 which ensures that women in the workforce are given paid maternity leave for a certain period before and after birth. Although Transgender Persons (Protection of Rights) Act prohibits discrimination against transgender persons, an inclusive definition such as this one safeguards primary caregivers with uteruses that do not identify as cis women and offers them dignity in the workplace by way of legislatures such as the Maternity Benefit Act, 1961.

  • Self assessment of mental health
  • As per the MTP Rules, one of the ways in which pregnancy can be terminated under the Act if the medical practitioner holds an opinion that the continuation of the pregnancy would involve grave danger to the pregnant woman’s mental health. 

    The Supreme Court's judgement here is “of the opinion that significant reliance ought to be placed on each woman’s own estimation of whether she is in a position to continue and carry to term her pregnancy.”

    In a culture that has historically treated women as mere vessels for reproduction, this gives the agency back to women to determine if the pregnancy will hinder their mental health. For once, women are not somebody’s wife, daughter-in-law or potential mothers, but their own person, free to determine whether their life and  circumstances can support a child. The Court recognises that in the event that they cannot, they shall have an adverse impact on the mental and physical health of the mother and the decision to carry such pregnancy to term is hence, the prerogative of the woman.

    Further, the Court also reiterates that while compliance of all the provisions under the MTP Act are mandatory by the medical practitioners, it is only the consent of the pregnant individual that is necessary. This observation, though may appear to be obvious, but is essential in light of the social scrutiny that revolves around abortions. The stigma around it often leads to medical practitioners taking their apprehensions a step further and mandating consent from other family members when the Act itself does not.

  • Unmarried women & termination of pregnancy
  • Despite the fact that medical termination of pregnancy by unmarried women was never illegal in India, the widespread belief continues to be that unmarried women do not possess the same rights as their married counterparts. The Judgment clarifies once and for all that the interpretation of Rule 3B, especially after the 2021 amendment to the MTP Act, includes unmarried women. 

    “While much of law’s benefits were and indeed are, rooted in the institution of marriage, the law in modern times is shedding the notion that marriage is a precondition to the rights of individuals (alone or in relation to one another). Changing social mores must be borne in mind when interpreting the provisions of an enactment to further its object and purpose.” the Court held.

    Even though legislations do not themselves discriminate between married and unmarried women, this particular Judgment states in no uncertain terms that both married and unmarried women have equal decisional autonomy to make significant choices regarding their own welfare. 

    The Court recognises that the determination of the status of one’s mental health is located in one’s self and experiences within one’s environment and social context. Our understanding of the term mental health cannot be confined to medical terms, but should be understood in common parlance. The MTP Act itself recognizes the need to look at the surrounding environment of the woman when interpreting injury to her health. The Court while upholding earlier judgments, recognised the negative effects of carrying an unwanted pregnancy and has made sure that it is only the woman whose opinion of how the said pregnancy will impact her mental health is paramount.

  • Atypical forms of familial relationships
  • In Deepika Singh’s Judgment in 2022, the Supreme Court recognised the validity of ‘atypical family structures’ to extend beyond the traditionally defined unit forged between a cishet man, a cishet woman, and the children borne only to them. This includes family units that involve children borne from previous marriages, as these manifestations of love and of families may not be typical but they are as real as their traditional counterparts. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones. 

    While at the time of Deepika Singh’s judgment, such an observation was made only in passing and was not binding in nature, the Supreme Court by way of present judgment has once again recognised such familial structures. However, the recognition this time is not merely incidental. In fact, the Court categorically observes that individuals in non-traditional manifestations of familial relationships can avail the advantages of beneficial legislations including the MTP Act. In short, while the Court only made observations recognising different family structures earlier, by way of this Judgment, the Supreme Court has removed all doubts that its benefits shall accrue to even those who are not a part of conventional “families”.   

  • Recognition of Marital rape as a form of rape
  • The Court, perhaps for the very first time, recognised marital rape as a form of rape. 

    “Married women may also form part of the class of survivors of sexual assault or rape. The ordinary meaning of the word ‘rape’ is sexual intercourse with a person, without their consent or against their will, regardless of whether such forced intercourse occurs in the context of matrimony. A woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband. We would be remiss in not recognizing that intimate partner violence is a reality and can take the form of rape. The misconception that strangers are exclusively or almost exclusively responsible for sex- and gender-based violence is a deeply regrettable one. Sex- and gender-based violence (in all its forms) within the context of the family has long formed a part of the lived experiences of scores of women.” the Court observed.

    That consent is an ongoing process and not a one time permission given at the time of marriage which abrogates sexual assault for life, is not something that’s ever been recognised in our country, let alone by the highest court of the land. This is of particular consequence in light of the Delhi High Court’s split verdict which effectively gave married men the licence to rape and sexually assault their wives under the garb of not being strangers. The appeal from the said judgment of the Delhi High Court is currently pending before the Supreme court. 

    What’s more is that for the purposes of the MTP act and for termination of pregnancy thereunder, the woman needn’t seek recourse to formal legal proceedings to prove the factum of sexual assault, rape or incest. That the offender be convicted under IPC or any other Act is not a necessity for a woman to exercise her rights under the MTP Act. The Act itself offers a ‘legal presumption’ that a pregnancy arising out of such circumstances threatens the mental health of the woman.

  • Absence of sex-education
  • The Judgment further puts in words what is rarely acknowledged in our country – the lack of sex education and its effects. Sex education in schools and educational institutions is limited to the human biology and lacks the comprehensiveness required for it to be of any practical use. Never before have we openly had a court admit that the lack of sex education along with the social taboo surrounding it has a direct impact on the health of the adolescents as they are apprehensive of accessing contraceptives and do not often receive the medical care that they require. 

    Apart from the acknowledgment, the Judgment directs the State to ensure that information regarding reproduction and safe sexual practices is disseminated to all parts of the population. Further, it must see to it that all segments of society are able to access contraceptives to avoid unintended pregnancies and plan their families.

    Sexual activity with minors is illegal regardless of their consent. A medical practitioner under normal circumstances is required to disclose any sexual offence committed against a minor to the relevant authorities (POCSO Act). Social taboos aside, this is another reason why an impregnated minor would be reluctant to seek proper medical care at the time of termination of pregnancy. The judgment clarifies in no uncertain terms that in a situation such as this the medical practitioner shall not be required to disclose the details of the minor accessing such termination. However, it is unclear how this judgment will apply in cases wherein the sexual offence against the minor is committed by the legal guardian themselves.

    The Court rather than choosing a strict reading of the law has chosen to read the MTP act harmoniously with the POCSO Act to make sure that safe access to healthcare is not denied to minors due to the mandatory disclosures in law. 

    All in all, the highlight of the Judgment is that it gives the agency and the decision making power back to the woman. If there has been rape, the woman needn’t file a formal complaint. If they’re a minor, their details needn’t be disclosed to the authorities by the medical practitioner. If due to any change in their circumstances, they feel like they cannot carry the pregnancy to term, its their prerogative. It is solely their consent that is material for the purposes of termination of pregnancy. Although it is sad that this needs recognition, the judgment squarely recognises that women are not vessels of reproduction but are people, with agency. That carrying an unwanted pregnancy to term shall have severe detrimental impact on a woman’s mental and physical health is a large consideration to make for a society that virtually views reproduction as the sole purpose of sex and marriage. While socially speaking, there is a long way to go, this Judgment has provided us with a much needed jumpstart.

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