Supreme Court: In an appeal against the judgment of Bombay High Court, wherein the Court denied the minor daughter of the appellant permission to terminate her pregnancy, who is alleged to have been subjected to sexual assault in September 2023, the three- judge bench of Dr. DY Chandrachud, CJI., JB Pardiwala and Manoj Misra JJ. has recalled its earlier directions permitting the termination of the pregnancy. The Bench reversed its order after the parents of the girl raised health-related concerns for the minor.
Further, the Court held the following:
- The Medical termination of pregnancy (‘MTP Act’) protects the Registered Medical Practitioner (‘RMP’) and the Medical Boards when they form an opinion in good faith as to the termination of pregnancy.
- 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 MTP Act but must also evaluate the physical and emotional well-being of the pregnant person in terms of the judgment.
- When issuing a clarificatory opinion the medical board must provide sound and cogent reasons for any change in opinion and circumstances.
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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.
Background:
The incident did not come to the fore till the minor revealed the incident on 20-03-2024 by which time she was about 25 weeks into her pregnancy. She always had irregular periods, thus could not have assessed her pregnancy earlier.
An FIR was registered against the alleged perpetrator on 20-03-2024 for offences punishable under Section 376 of the Penal Code, 1860 (‘IPC’) and Sections 4, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’). The minor was taken to a hospital on 21-03-24 for medical examination and then transferred to other hospital for termination of her pregnancy. On 28 —03-2024 the Medical Board constituted under the Medical Termination of Pregnancy Act 1971 opined that the minor was physically and mentally fit for termination of her pregnancy subject to the permission of the High Court.
Thereafter, the appellant moved to the Bombay High Court under Article 226 of the Constitution, seeking the termination of pregnancy of her daughter. On 3—04-2024, the medical board issued a ‘clarificatory’ opinion, without re-examining ‘the minor. The report denied the termination of pregnancy on the ground that the gestational age of the fetus was 27 to 28 weeks and that there were no congenital abnormalities in the fetus. Thus, by the impugned judgment the High Court dismissed the writ petition on the ground that the pregnancy exceeded the statutory period of 24 weeks. Aggrieved the appellant appealed to the Supreme Court, wherein the Court took note of the fact that the report of the Medical Board, which was relied upon by the High Court had not dealt with the impact of the pregnancy on the physical and emotional well-being of the minor. Accordingly, a fresh Medical Board was directed to be constituted under the Lokmanya Tilak Municipal General Hospital and Lokmanya Tilak Municipal Medical College, Sion, Mumbai.
After examining the minor, the medical board of the Sion Hospital opined that the gestational age of the fetus was 29.6 weeks and continuation of pregnancy will negatively impact the physical and mental well-being of the minor. Further, it opined that the pregnancy can be terminated with a degree of risk not higher than if the pregnancy was taken to term.
On 22-04-2024, the Court set aside the Bombay High Court judgment, and requested the Dean at Sion hospital to constitute a team of doctors for undertaking the medical termination of pregnancy of the minor.
Decision:
The Court interacted with the parents of the minor as well as with the medical team at Sion hospital, over the video conferencing platform.
The Court noted that the doctors have stated that the pregnancy of the minor is at an advanced stage. In terms of the guidelines of the Union Government dated 14-08- 2017, an intracardiac injection of KCL has to be administered and if the fetal heart is not detected to have stopped after sonography following the administration of the injection, the procedure would have to be repeated. Both the doctors have indicated that this may involve a certain degree of risk to the minor which cannot be ruled out bearing in mind the late stage of the pregnancy.
The Court said that the Parents’ primary concern was that they should have been apprised a week ago by the medical team after the order of this Court was passed of the inherent dangers in carrying out the procedure in an advanced pregnancy.
The Court noted that both the parents of the minor are averse to undertaking any risk to the life and well-being of their daughter at this stage and would prefer to take her home and to readmit her to the Sion hospital in time for her due date of delivery.
The Court said that the sole and only consideration which must weigh at this stage is the safety and welfare of the minor.
The Court was informed that the minor is ready and willing to accept the decision of her parents which is in her best interest.
The Bench noted that performing a procedure for termination of an advanced pregnancy at this stage is subject to risks involving the well-being and safety of the minor as explained by the medical team at Sion hospital. Further, the parents of the minor have chosen not to press ahead with the termination of the advanced pregnancy at the present point of time.
The Court viewed that the decision of the Parents has to be accepted. Thus, the Bench recalled its earlier order dated 22-04-2024.
Further, the Court discussed the following:
Role of the RMP and medical board under the MTP Act
After taking note of X v. State (NCT of Delhi), (2023) 9 SCC 433 , wherein the Court recognised that the fear of prosecution among registered medical practitioners is a barrier for pregnant persons to access safe and legal abortions.
The Court noted that Section 3(1) of the MTP Act protects the registered medical practitioner from penal provisions against abortion, under the Penal Code, 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. The same applies to medical boards constituted under Section 3(2-C) and Section 3(2-D) of the MTP Act.
The Court stated that 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.
The Court noted that in the present case, the medical board prepared a report stating that the pregnancy may be terminated in view of the physical and mental health of the minor. 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.
However, the Court could not understand the diametrically opposite view taken by the medical board in its ‘clarificatory’ opinion dated 3-04-2024, wherein the medical board issued a clarification without re-examining the minor. Moreover, the opinion did not elaborate on the change in circumstances which prompted the board to issue a clarification on its earlier opinion.
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.
The Court said that the fear of prosecution among RMPs acts as a barrier for pregnant people in accessing safe abortion. Further, since the MTP Act only allows abortion beyond twenty four weeks if the fetus is diagnosed with substantial abnormalities, the medical board opines against termination of pregnancy merely by stating that the threshold under Section 3(2-B) of the MTP Act is not satisfied. The clarificatory report dated 3-04-2024 fell into this error by denying termination on the ground that the gestational age of the fetus is above twenty-four weeks and there are no congenital abnormalities in the fetus.
The Court said that the report failed to form an opinion on the impact of the pregnancy on the physical and mental health of the pregnant person. If a pregnant person meets the condition under Section 3(2-B) of the MTP Act, then there would be no need for any permission by the Courts. Therefore, 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.
After referring to XYZ v. State of Gujarat, 2023 SCC OnLine SC 1573, wherein it was held that the medical board or the High Court cannot refuse abortion merely on the ground that the gestational age of the pregnancy is above the statutory prescription.
The Court said that when a person approaches the Court for permission to terminate a pregnancy, the Courts apply their mind to the case and decide 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. The Court would thereafter apply their judicial mind to the opinion of the medical board. Therefore, 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 noted that the MTP Act has removed the restriction on the length of the pregnancy for termination in only two instances:
- Section 5 of the MTP Act prescribes 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.
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Section 3(2-B) of the Act stipulates that no limit shall apply on the length of the pregnancy for terminating a fetus with substantial abnormalities.
The Court said that the legislation has made a value judgment in Section 3(2-B) of the Act, that a substantially abnormal fetus would be more injurious to the mental and physical health of a woman than any other circumstance.
As per the Court, to deny the same enabling provision of the law would appear prima facie unreasonable and arbitrary.
The Court said that the change in the opinion of the medical board may cause undue trauma and exertion to a pregnant person whose mental health is under distress. The board must explain the reasons for the issuance of the clarification and, in particular, if their opinion has changed from the earlier report.
The Court emphasised on 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. 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.
Therefore, the Court held that 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.
Primacy of the pregnant person’s consent in abortion
The Court said that 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 or indeed the jurisprudence around abortion developed by the Courts leave no scope for interference by the family or the partner of a pregnant person in matters of reproductive choice.
The Court remarked that the role of the RMPs and the medical board must be in a manner which allows the pregnant person to freely exercise their choice.
In the present case, the Court said that the guardians of the minor, namely her parents, have also consented for taking the pregnancy to term. This is permissible as the girl is a minor and the consent of the guardian is prescribed under Section 3(4)(a) of the MTP Act.
The Court said that 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 Court issued the following directions:
- The Sion hospital was directed bear all the expenses in regard to the hospitalization of the minor over the past week and in respect of her re-admission to the hospital for delivery as and when she is required to do so.
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If the minor and her parents desire to give the child in adoption after the delivery, the State Government was directed take all necessary steps in accordance with the applicable provisions of law to facilitate this exercise.
CASE DETAILS
| Citation: 2024 SCC OnLine SC 835 Appellants : Respondents : |
Advocates who appeared in this case For Appellant(s): For Respondent(s): |
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