The Supreme Court said the choice to continue the pregnancy to term belongs to the individual alone.
New Delhi:
In a significant order, the Supreme Court highlighting “fundamental right under Article 21 of the Constitution” said that the opinion of a pregnant minor is an “important factor” while deciding on abortion.
“The right to choose and reproductive freedom is a fundamental right under Article 21 of the Constitution. Therefore, 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,” it said asserting that the consent of the pregnant person in matters of reproductive choices and abortion is “paramount”.
The top court also advised medical boards evaluating a pregnant person with a gestational age above twenty-four weeks to “opine on the physical and mental health of the person”.
On April 29, the Supreme Court recalled its April 22 order by which it had permitted a 14-year-old girl to undergo medical termination of her 30-week pregnancy after her parents said they had decided to wait for the full term of pregnancy. The court was hearing a petition filed by the girl’s mother challenging the Bombay High Court order declining the prayer for termination of pregnancy.
The Supreme Court had earlier allowed the rape survivor to terminate her 30-week pregnancy, overturning an order by the High Court, calling it an “exceptional case” and said the abortion was allowed based on a hospital report.
In its April 29 order, the court said 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.
Under the Medical Termination of Pregnancy (MTP) Act, the upper limit for aborting the foetus is 24 weeks for married women as well as those in special categories, including rape survivors and other vulnerable women, such as those differently-abled and minors.
“The MTP Act does not allow any interference with the personal choice of a pregnant person in terms of proceeding with the termination. The Act leave no scope for interference by the family or the partner of a pregnant person in matters of reproductive choice,” stressed the top court.
The Supreme Court said that it recalled its earlier order allowing ‘X’ to terminate her pregnancy as the decision was “made in light of the decisional and bodily autonomy of the pregnant person and her parents”.
“In the present case, the guardians of ‘X’, namely her parents, have also consented to taking the pregnancy to term. This is permissible as ‘X’ is a minor and the consent of the guardian is prescribed under Section 3(4)(a) of the MTP Act,” it said.
The court said the choice to continue the pregnancy to term, regardless of the court having allowed termination of the pregnancy, belongs to the individual alone.
A bench of Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra also clarified on why it used the term ‘pregnant person’ instead of ‘pregnant woman’ amid a debate over the use of gender-neutral vocabulary to identify the sexes.
“We use the term ‘pregnant person’ and recognize that in addition to cisgender women, pregnancy can also be experienced by some non-binary people and transgender men among other gender identities,” the court stated in a footnote.
