Medical Termination of Pregnancy Act, 1971 – Termination of pregnancy – 14 year old girl subjected to sexual assault, sought permission to terminate her pregnancy – Denied by the High Court on the ground that the pregnancy exceeded the statutory period of twenty-four weeks – In appeal, this Court on basis of the fresh report of the medical Board, allowed termination of pregnancy – When the said order passed, the minor was in the thirtieth week of her pregnancy – Thereafter, minor girl’s parents changing their statements, and matter again before this Court:

Held: Sole and only consideration which must weigh with the Court at this stage is the safety and welfare of the minor – In view thereof, the earlier order passed by this Court is recalled – Said decision made in light of the decisional and bodily autonomy of the pregnant person and her parents – Performing a procedure for termination of an advanced pregnancy, gestational age of the fetus nearing end of thirty first week, is subject to risks involving the well-being and safety of the minor as explained by the medical team at the hospital – Guardians of the girl, namely her parents, also consented for taking the pregnancy to term, as permissible u/s. 3(4)(a) – View of the minor girl and her parents to take the pregnancy to term in tandem of the MTP Act – Furthermore, the MTP Act does not allow any interference with the personal choice of a pregnant person in terms of proceeding with the termination – Act or indeed the jurisprudence around abortion developed by the courts leave no scope for interference by family or partner of a pregnant person in matters of reproductive choice – Role of the registered medical practitioners- RMPs and the medical board must be in a manner which allows the pregnant person to freely exercise their choice – In view thereof, the hospital directed to bear all the expenses in regard to the hospitalization of the minor over the past week and in respect of her readmission to the hospital for delivery – In the event that the minor and her parents desire to give the child in adoption after the delivery, the State Government to take all necessary steps. [Paras 19, 32, 33, 35, 36]

Medical Termination of Pregnancy Act, 1971 – ss. 3(1), 3(2- B) – Role of the registered medical practitioners-RMP and medical board under the MTP Act:

Held: The Act protects the registered medical practitioners-RMP and the medical boards when they form an opinion in good faith as to the termination of pregnancy – Fear of prosecution among registered medical practitioners is a barrier for pregnant persons to access safe and legal abortions – Opinion of the RMP is decisive in matters of termination of pregnancy under the MTP Act – Purpose of the opinion of the RMP borrows from the legislative intent of the MTP Act which is to protect the health of a pregnant person and facilitate safe, hygienic, and legal abortion – It is therefore imperative that the fundamental right of a pregnant person is not compromised for reasons other than to protect the physical and mental health of the pregnant person – Medical board, in forming its opinion on the termination of pregnancies must not restrict itself to the criteria u/s. 3(2-B) but must also evaluate the physical and emotional well being of the pregnant person – When issuing a clarificatory opinion the medical board must provide sound and cogent reasons for any change in opinion and circumstances. [Paras 37, 29]

Constitution of India – Art. 21 – Right to reproductive autonomy – Right to abortion – Fundamental right:

Held: Right to abortion is a concomitant right of dignity, autonomy and reproductive choice – This right is guaranteed u/Art. 21 – Decision to terminate pregnancy is deeply personal for any person – Choice exercised by a pregnant person is not merely about their reproductive freedom – Thus, it is imperative that the fundamental right of a pregnant person is not compromised for reasons other than to protect the physical and mental health of the pregnant person – Opinion of the pregnant person must be given primacy in evaluating the foreseeable environment of the person u/s. 3(3) of the MTP Act – Medical board and the courts need for giving primacy to the fundamental rights to reproductive autonomy, dignity and privacy of the pregnant person by 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 – Thus, 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. [Paras 21, 30, 31]

Constitution of India – Art. 21 – Right to reproductive autonomy – Right to abortion – Pregnant person’s consent in abortion – Primacy of – Importance of minor’s view in termination of pregnancy:

Held: Right to choose and reproductive freedom is a fundamental right u/ Art. 21 – Consent of the pregnant person in matters of reproductive choices and abortion is paramount – 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. [Paras 34, 35]

Gender Identities – Ambit of pregnancy – Enlargement of – Usage of term ‘pregnant person’ instead of term ‘pregnant woman’:

Held: Term ‘pregnant person’ used and recognized that in addition to cisgender women, pregnancy can also be experienced by some non-binary people and transgender men among other gender identities. [Para 21]

Medical Termination of Pregnancy Act, 1971 – s. 3(1) – When pregnancies may be terminated by registered medical practitioners – Protection u/s. 3(1):

Held: s. 3(1) protects the registered medical practitioner from penal provisions against abortion, under IPC, if it is carried out as per the MTP Act – Moreover, no penalty may be attracted to a RMP merely for forming an opinion, in good faith, on whether a pregnancy may be terminated – This is because the MTP Act requires and empowers the RMP to form such an opinion – Its bona fide assured, no aspersions may be cast on the RMP – Same applies to medical boards constituted u/s. 3(2-C) and 3(2-D) – Opinion of the RMP or the medical board, 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 – 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 – 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. [Paras 22, 23, 25]

Medical Termination of Pregnancy Act, 1971 – s. 3(1) – Permission to terminate the pregnancy – Powers vested in the Courts:

Held: Fundamental rights guaranteed under Part III of the Constitution can be enforced – The courts apply their mind to the case and make a decision to protect the physical and mental health of the pregnant person – In doing so the court relies on the opinion of the medical board constituted under the MTP Act for their medical expertise – Court would thereafter apply their judicial mind to the opinion of the medical board – Thus, the medical board cannot merely state that the grounds u/s. 3(2-B) are not met – 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 – Thus, a medical board must examine the pregnant person and opine on the aspect of the risk to their physical and mental health. [Para 27]

Medical Termination of Pregnancy Act, 1971 – ss. 5, 3(2-B) – Restriction on the length of the pregnancy for termination – Removal of:

Held: Restriction on the length of the pregnancy for termination is removed, in two instances, firstly u/s. 5 prescribing that a pregnancy may be terminated, regardless of the gestational age, if the medical practitioner is of the opinion formed in good faith that the termination is immediately necessary to save the life of the pregnant person; and secondly u/s. 3(2-B) stipulating that no limit shall apply on the length of the pregnancy for terminating a fetus with substantial abnormalities – Legislation has made a value judgment in s.3(2-B), that a substantially abnormal fetus would be more injurious to the mental and physical health of a woman than any other circumstance – To deny the same enabling provision of the law would appear prima facie unreasonable and arbitrary – Value judgment of the legislation does not appear to be based on scientific parameters but rather on a notion that a substantially abnormal fetus would inflict the most aggravated form of injury to the pregnant person. [Para 28]