The Supreme Court has said that the consent of a pregnant person in decisions of reproductive autonomy and termination of pregnancy is paramount. In case there is a divergence in the opinion of a pregnant person and her guardian, “the opinion of the minor or mentally-ill pregnant person must be taken into consideration as an important aspect in enabling the court to arrive at a just conclusion”, the apex court said.
The SC made the observations, while deciding the appeal filed by a mother of a minor rape survivor against the Bombay High Court order refusing permission to medically terminate the pregnancy based on medical board’s opinion. The detailed order copy was made available on Monday.
Interestingly, it used the term pregnant person instead of pregnant woman. In the footnote, Chief Justice of India DY Chandrachud, who authored the judgement stated: “We use the term ‘pregnant person’ and recognise that in addition to cisgender women, pregnancy can also be experienced by some non-binary people and transgender men among other gender identities.”
Opining on the issue of terminating the minor rape survivor’s pregnancy, the medical board had initially granted permission for medical termination of pregnancy (MTP), which was above 24 weeks. It later reversed the opinion, saying that the pregnancy was above 24 weeks and there was no foetal abnormality. As per the MTP Act, medical termination of pregnancy is prohibited past 24 weeks unless the pregnancy poses a severe threat to the woman’s life or involves substantial foetal abnormalities.
The mother, represented by advocates Shantanu Adkar, Ashley Cusher and Bharti Tyagi, contended that the minor was sexually assaulted last year. However, she learnt about the pregnancy in March and an FIR was registered at the Turbhe police station on March 24; by then she had crossed the 24th week of pregnancy. Initially, the SC, on April 22, permitted the minor to undergo MTP. However, the order was recalled on April 29 as the minor’s mother said they were willing to take care of the girl till full-term in view of the risk subsequently expressed by the medical board. The apex court, while recalling the order of MTP, framed guidelines.
It emphasised that the medical board must consider the physical and mental health of the pregnant person, while giving its opinion on MTP. “This highlights the need for giving primacy to the fundamental rights to reproductive autonomy, dignity and privacy of the pregnant person by the medical board and the courts,” noted the three-judge bench of CJI, and Justices JB Pardiwqala and Manoj Misra. The delays caused by a change in the opinion of the medical board or the procedures of the court must not frustrate the fundamental rights of pregnant people, it underlined.
The bench thus held that the medical board evaluating a pregnant person with a gestational age above twenty-four weeks “must opine on the physical and mental health of the person by furnishing full details to the court”. Additionally, the SC stated that where the opinion of a minor pregnant person differs from the guardian, the court must regard the view of the pregnant person as an important factor, while deciding the termination of the pregnancy.
