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Synopsis

The Supreme Court has said that the court must consider the view of even a minor pregnant person as an important factor while deciding the termination of the pregnancy in case her opinion differs from that of the guardian as the right to choose and reproductive freedom is a fundamental right under Article 21 of the Constitution.

A bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra also emphasised that whenever a pregnant person approaches the high court or this court, it is imperative for the medical board to opine on the physical and mental health of the pregnant person.

"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 bench said.

The medical board, in forming its opinion on the termination of pregnancies must not restrict itself to the criteria under Section 3(2-B) of the Medical Termination of Pregnancy Act but must also evaluate the physical and emotional well-being of the pregnant person, it said.

"The medical board cannot merely state that the grounds under Section 3 (2-B) of the MTP Act are not met. The exercise of the jurisdiction of the courts would be affected if they did not have the advantage of the medical opinion of the board as to the risk involved to the physical and mental health of the pregnant person. Therefore, a medical board must examine the pregnant person and opine on the aspect of the risk to their physical and mental health," the bench said.

The court pointed out that the provision Section 3 (2-B) is arguably suspect on the ground that it unreasonably alters the autonomy of a person by classifying a substantially abnormal fetus differently than instances such as incest or rape. This issue may be examined in an appropriate proceeding should it become necessary, it said. 

The court released its judgment on April 29 when it recalled its order for termination of 14-year-old rape survivor after the petitioner, the mother of the girl, changed her view and decided to take the pregnancy.

In the present case, the bench noted that the view of ‘X’ and her parents to take the pregnancy to term were in tandem. 

"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," the bench said.

When issuing a clarificatory opinion the medical board must provide sound and cogent reasons for any change in opinion and circumstances, 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. We, therefore, hold 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," the bench said.

The MTP Act protects the registered medical practitioner and the medical boards when they form an opinion in good faith as to the termination of pregnancy, the court highlighted.

"The opinion of the RMP or the medical board, as the case may be, is indispensable under the scheme of the MTP Act. This inadvertently gives the power to the RMP or the medical board to stand in the way of a pregnant person exercising their choice to terminate the pregnancy. When there is fear or apprehension in the mind of the RMP or the medical board it directly jeopardises the fundamental freedoms of pregnant persons guaranteed under the Constitution," the bench said.

However, the scheme of the MTP Act and the steady line of application of the law by the courts has made it clear that the RMP or the medical board cannot be prosecuted for any act done under the MTP Act in good faith, it added.

In the present case, the bench said that the medical board of the Grant Government Medical College & Sir JJ Group of Hospitals, Mumbai had prepared a report on March 28, 2024 stating that the pregnancy may be terminated in view of the physical and mental health of ‘X’. The report however sought the permission of the High Court since the gestational age of the fetus was above twenty four weeks, which is the permissible age for termination of pregnancy under the MTP Act.

"What is inexplicable is the diametrically opposite view taken by the medical board in its ‘clarificatory’ opinion on April 3, 2024. The medical board issued a clarification without re-examining ‘X’. Moreover, the opinion did not elaborate on the change in circumstances which prompted the board to issue a clarification on its earlier opinion," the bench said.

The court said that the opinion of the RMP and the medical board must balance the legislative mandate of the MTP Act and the fundamental right of the pregnant person seeking a termination of the pregnancy.

"We are conscious of the fact that the decision to terminate pregnancy is one which a person takes seriously. The guidelines to terminate pregnancy as well as the scheme of the MTP Act show the seriousness attached to the well-being of the pregnant person throughout the process envisaged under the MTP Act. Change in the opinion of the medical board may cause undue trauma and exertion to a pregnant person whose mental health is understandably under distress," the bench said.

"While we understand the need for a medical board to issue a clarificatory opinion based on the facts and circumstances of each case, the board must explain the reasons for the issuance of the clarification and, in particular, if their opinion has changed from the earlier report. Pregnant persons seeking termination of pregnancy seek predictability for their future. The uncertainty caused by changing opinions of the medical board must therefore balance the distress it would cause to the pregnant person by providing cogent and sound reasons," the bench added.

The court said there was a 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. 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.

"We, therefore, hold 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," it said.

Case Title: A (Mother of X) Vs State of Maharashtra & Anr