In the Supreme Court of India
(2009) 14 SCR 989
Date of Judgement
28 August, 2009
The Hon’ble Chief Justice K.G. Balakrishnan ; The Hon’ble Justice P. Sathasivam ; The Hon’ble Justice B.S. Chauhan.
A woman, who had been orphaned & mentally retarded become pregnant as a result of an alleged rape that took place while living as an inmate at a government-run welfare institution located in Chandigarh. She did not have any parent or guardian to look after her or her prospective child & therefore relied fully on the State for her care. She had the mental capacity of a nine-year-old. The Institution staff discovered her pregnancy when she was at nine weeks gestation when victim started showing signs of nausea and had complained about pain in her lower abdomen. Upon this discovery, the government of Chandigarh filed a criminal case in the police station and constituted a medical board to evaluate the mental status of the woman. The medical board opined that the woman had an intellectual disability. Another government-constituted medical board opined that the woman’s pregnancy shall be terminated. The government then filed a petition with the High Court of Punjab and Haryana (“High Court”) requesting permission to terminate the pregnancy.
The High Court established an independent expert body of medical experts and judges to investigate the facts and to provide support to the High Court in its decision. The expert body recommended that, even though the victim was “unable to appreciate and understand the consequences of her own future and that of the child she is bearing,” her condition did not warrant termination of pregnancy. Furthermore, the expert body found that the woman wanted to continue the pregnancy. Nonetheless, the High Court granted Respondent permission to Terminate the pregnancy. The woman/Appellant approached the Supreme Court challenging the decision of the High Court.
At the time of the appeal, the woman was 19 weeks into her pregnancy, and the statutory limit in India only permitted abortion up to 20 weeks gestation under Section 3 of the Medical Termination of Pregnancy Act 1971 (“MTP Act”). This case hinged on Section 3 of the “MTP Act,” which permits access to abortion under certain conditions including the woman’s consent, the stage of the pregnancy, and the woman’s mental and physical health, as well as the health of the fetus.
- Whether it was correct on part of the High Court to direct the termination of pregnancy without the consent of the woman in question?
- Even if the said woman was assumed to be mentally incapable of making an informed decision, what are the appropriate standards for a Court to exercise `Parens Patriae’ jurisdiction?
Arguments of the Petitioners:
- At the time of the order for the termination of pregnancy, she was already 19 weeks pregnant, while the statutory limit for abortion is 20 weeks as per MTP Act. Doing same at that time may cause harm to physical health of woman.
- The MTP Act respects the personal autonomy of mentally retarded person who are above age of majority. As she expressed her willingness to bear the child.
- In spite of lack of understanding the sexual act resulting pregnancy, her reproductive choice should be respected regardless she is mentally retarded.
Arguments of the respondent:
- It was contended on behalf of the respondent’s council that the medical expert who appeared voiced the concern that the constant care and supervision throughout the pregnancy would require a certain degree physical, emotional, and social burden and she was not capable of handling them as she was an orphan.
- They also alerted that the victim may change her opinions in the coming future is she was willing to bear the child.
Decision of the SC
The Hon’ble SC, with respect to the first issue held that the Appellant was keen to have the child bearing. Section 3 of the Medical Termination of Pregnancy Act, 1971 clearly indicates that consent is an essential condition for performing an abortion on a woman who has attained the age of majority and does not suffer from any `mental illness’ which is distinct from `mental retardation’ for the purpose of this statute. Right to liberty under Art.21 in the Constitution of India determine that forcible termination would violate Appellant’s rights to women’s liberty to reproductive choice and as such her rights to “privacy, dignity, and bodily integrity.” The reproductive rights included the right to complete a pregnancy to full term. She had a “qualified right to abortion since there was a “compelling state interest.” the right to equality as outlined in the United Nations Declaration on the Rights of Mentally Retarded Persons (1971) to support personal autonomy in the context of intellectual disability and the MTP Act.
On the second issue the court disagreed with the “substituted judgment test” under the common law doctrine of Parens Patriae. In light of best interest test by the Expert Body’s findings, It was determined that decision granting the termination was not in Appellant’s best interest. The Court reasoned that forced termination of the pregnancy would be high risk since the pregnancy was in its 19th week, and could create severe emotional stress for Appellant because she had not consented to the procedure.
“The views of the authors are personal“