1. family and parenting
2. motherhood
3. pregnancy

medilaw
What is the Summary of the SC Judgment
Regarding Termination of Pregnancy in a Mentally
Retarded Woman?
1. You are obviously referring to the judgment
in “Suchita Srivastava & Anr. vs Chandigarh
Administration, SC, decided on 28 August, 2009
(Bench: K.G. Balakrishnan, P. Sathasivam, B.S.
Chauhan)”. This judgment can be viewed at: http://
indiankanoon.org/doc/1500783/
2. An excellent summary of this case has been
published on another website by a Supreme Court
advocate Rakesh Shukla, a Supreme Court lawyer.
(http://infochangeindia.org/women/judicialinterventions-and-women/free-to-choose-mentalretardation-and-reproductive-choice.html) I am
reproducing it below. Before reproducing it, I have
asked their permission.
3. Summary as prepared by Advocate Rakesh Shukla.
In a landmark judgment, the Supreme Court of
India struck down a high court order to terminate
the pregnancy of a mentally retarded woman,
against her will.
The recent Supreme Court judgment reversing a
Punjab and Haryana High Court order directing the
medical termination of pregnancy of a young adult
woman without her consent, on grounds of “mental
retardation”, is a landmark decision in the area of
reproductive rights. Some years ago, hysterectomies by
the authorities on inmates at a mental home for women
in Pune focused attention on the rights of individuals
categorized as mentally ill.
The current judgment, reported as Suchita Srivastava
versus Chandigarh Administration, 2009 (11) SCALE
813, is also remarkable in that it takes on board
and acknowledges that judges are also susceptible
to unconscious prejudices that impact the judicial
decision-making process. In a departure from the
practice of judgments freely naming survivors/victims
of crimes like rape, here, in a display of sensitivity, the
name of the woman has been withheld in the judgment
to avoid stigmatization. The woman (hereafter referred
to as ‘AB’) is an orphan who was abandoned by her
parents at an early age and lived with the Missionaries
of Charity in New Delhi. She was later admitted to
the Government Institute for the Mentally Retarded in
Chandigarh, and then to Nari Niketan in Chandigarh.
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On March 13, 2009, AB was shifted to Ashreya, a
newly established welfare home. Nari Niketan and
Ashreya are both government institutions run by the
Chandigarh Administration.
On May 16, 2009, a medical social worker and staff
nurse working at Ashreya noticed that AB was showing
signs of nausea and complained of pain in the lower
abdomen. In addition, she disclosed that she had missed
her last two periods. A pregnancy test was carried out,
which turned out to be positive. On May 18, 2009, a
medical board consisting of two gynecologists and a
radiologist was constituted by the administration. It
concluded that AB was 8-10 weeks pregnant.
After confirmation of the pregnancy, the authorities filed
a first information report (FIR) with the Chandigarh
police, under Section 376 of the Indian Penal Code (IPC),
for rape. An ossification test conducted on the woman
showed her age to be around 19-20 years. A medical
board evaluating the mental status concluded that
AB’s condition was that of ‘mild mental retardation’.
Another multi-disciplinary medical board set up to
submit its considered opinion on the consequences
of continuation of pregnancy and the capability of
the victim to cope with the same, on May 27, 2009
recommended the termination of AB’s pregnancy.
As there was no clear basis in law for proceeding
with the termination, the Chandigarh administration
approached the Punjab and Haryana High Court seeking
approval for medical termination of the pregnancy,
keeping in mind that AB was mentally retarded, an
orphan, and did not have a parent or guardian who
could look after her and her prospective child.
The High Court constituted an expert body independent
of the Chandigarh Administration, consisting of medical
experts and a judicial officer, to look into the facts of the
case. The High Court framed a comprehensive set of
questions to be answered by the expert body in order
to ascertain the ‘best interests’ of AB.
The broad findings of the expert body were that AB
suffered from mild-to-moderate retardation that
affected her capacity for independent socioeconomic
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functioning and self-sustenance, and that she would
need supervision and assistance. She was incapable of
distinguishing between a child born before and after
marriage, or out of wedlock, and did not comprehend
the attached social connotations. AB knew that she was
bearing a child and was eager to have one. But, she
was unable to understand the consequences on her
own future and that of the child she was bearing. AB
had limited perception about bringing up a child and
the role of a mother. Although she had enough physical
ability to bear and raise a child, retardation limits the
mental capacity to bear and raise a child in the absence
of adequate social support and supervision. AB had
limited understanding of the sexual act and of the
concept of getting pregnant. She did not volunteer for
sex, and did not like the sexual act. AB had no particular
emotions on account of the pregnancy being caused
by rape. She was happy with the idea that she had a
baby inside her, and looked forward to seeing it. The
pregnancy did not pose any particular risk of physical
injury to AB. The possibility of complications like an
abortion, hypertension, prematurity, low birth weight
and fetal distress was the same in any pregnancy among
women of this age group. AB’s spinal abnormalities
and gait defects were not indications of the need to
terminate the pregnancy. Similarly, hepatitis B infection
was not an indication for termination of pregnancy, and
transmission from mother-to-child could be prevented.
a stay on the High Court order. The apex court examined
the provisions of the Medical Termination of Pregnancy
(MTP) Act, 1971 and noted 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’. The Court also examined the
issue of the exercise of (I)parens patriae(/I) jurisdiction
by the courts, that is, the state must make decisions in
order to protect the interests of those persons who are
unable to take care of themselves. It noted that the two
standards for exercising this jurisdiction are the ‘best
interests’ test and the ‘substituted judgment’ test.
AB needed a congenital and supportive environment
for herself and for the safe tenure of her pregnancy.
Social support and care for mother and child were held
to be crucial components. As to the prudent course to
be followed, the expert body took the view that any
decision taken keeping AB’s best interests in mind as
well as those of her unborn child had to be based on
a holistic assessment of physical, psychological and
social parameters.
In the case of AB, the state could claim to be the
guardian as she was an orphan and had been placed
in government-run welfare institutions. However, the
claim to guardianship cannot be mechanically extended
to make decisions about termination of pregnancy.
The ossification test showed AB to be around
19-20 years, so she did not fall in the category of a minor.
AB’s medical condition was described as ‘mild mental
retardation’. Under the MTP Act, the pregnancy of a
woman above 18 years of age can be terminated with
the consent of the guardian only if she is categorized as
a ‘mentally ill person’. As per Section 2(b) of the Act:
“A ‘mentally ill person’ means a person who is in need
of medical treatment by reason of any mental disorder
other than mental retardation.” The Court observed
that it was clear that the expression ‘mentally ill person’
is different from ‘mental retardation’.
The High Court directed the termination of pregnancy
by an order dated July 17, 2009. It was left to two
public-spirited individuals to move the Supreme Court
against the High Court order directing termination
of pregnancy. The appellant, Tanu Bedi, appeared in
person on July 20, 2009, stressing urgency as AB was
more than 19 weeks pregnant by then and the statutory
limit of 20 weeks for termination of pregnancy was fast
approaching. The Chandigarh Administration made
submissions in favor of termination of pregnancy.
In support of the administration’s stand, senior
advocate Colin Gonsalves also appeared on behalf of an
intervener. After hearing counsel and considering the
opinion of medical experts, the Supreme Court granted
The Court noted that a woman’s right to make
reproductive choices is a dimension of ‘personal liberty’,
as understood under Article 21 of the Constitution.
Reproductive choices can be exercised to procreate
as well as to abstain from procreating. The crucial
consideration was held to be a woman’s right to privacy,
dignity and bodily integrity. Thus, restrictions could not
be placed on the exercise of reproductive choice such
as a woman’s right to refuse participation in sexual
activity or, alternatively, on her insistence on the use of
contraceptive methods. Women are free to choose birth
control methods such as undergoing a sterilization
procedure. It was observed that reproductive rights
include a woman’s entitlement to carry pregnancy to
its full term, to give birth and to raise children.
The judgment notes that a similar distinction is found
in the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995
where ‘mental illness’ has been defined as any mental
disorder other than mental retardation. Under Section
Indian Journal of Clinical Practice, Vol. 24, No. 2, July 2013
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2(r) of the Act ‘mental retardation’ has been defined
as ‘a condition of arrested or incomplete development
of mind of a person which is specially characterized
by subnormality of intelligence’. Noting that ‘mental
retardation’ has been similarly defined under the
National Trust for Welfare of Persons with Autism,
Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, 1999, the judgment observed that
persons in a condition of ‘mental retardation’ should be
treated differently from those found to be ‘mentally ill’.
The MTP Act clearly lays down that a guardian can
make decisions on behalf of a ‘mentally ill person’, but
this cannot be done on behalf of a person who is in a
condition of ‘mental retardation’. The Court observed
that the state must respect the personal autonomy of
a mentally retarded woman with regard to decisions
about terminating a pregnancy. The explicit consent of
a woman categorized as ‘mentally retarded’ may not
be a necessary condition for continuing the pregnancy.
However, obtaining consent is an essential condition
for the termination of pregnancy. The Court observed
that AB had not given her consent to the termination of
pregnancy. It held that dilution of the requirement of
consent would amount to an arbitrary and unreasonable
restriction on the reproductive rights of the victim/
survivor.
Coming to the exercise of (I) parens patrae (/I) jurisdiction
by the High Court in ordering the termination of
pregnancy, it was held that the Court should be guided
by the ‘best interests’ of the victim/survivor and not
of other stakeholders such as guardians or society in
general. The judgment observes that AB would need
care and assistance, and that would entail some costs.
But this could not be grounds for denying the exercise
of reproductive rights. The judgment held that the
high Court could not use the ‘substituted judgment’
standard and make a decision on behalf of AB with
regard to termination of pregnancy.
The judgment observes that AB’s case presents
an opportunity to confront social stereotypes and
prejudices that operate to the detriment of mentally
retarded persons. Taking note of the fact that even
medical experts and judges may unconsciously be
susceptible to these prejudices, the Court observes
that persons with borderline, mild or moderate mental
retardation are capable of being good parents. Mental
retardation is gauged on the basis of parameters such
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as intelligence quotient (IQ) and mental age (MA). It is
quite possible that a person with a low IQ or MA can
possess social and emotional capacities that enable him
or her to be a good parent.
Returning to the facts of the present case, the Supreme
Court noted that the expert body findings were that the
continuation of pregnancy did not pose any grave risk
to the physical or mental health of AB, and that there
was no indication that the prospective child was likely
to suffer from a congenital disorder. The judgment held
that termination of pregnancy without consent would
not be in AB’s ‘best interests’ and that the courts could
not order a termination without consent when the MTP
Act clearly respects the personal autonomy of mentally
retarded persons who are above the age of majority.
The Court noted that the chairperson of the National
Trust for Welfare of Persons with Autism, Cerebral
Palsy, Mental Retardation and Multiple Disabilities had
submitted that the Trust was prepared to look after the
best interests of AB, including assistance with childcare.
Given concerns about AB’s ability to cope with the
demands of carrying a child to full term, giving birth to
the child and childcare, the Court directed that the best
medical facilities be made available to her to ensure
proper care and supervision during the pregnancy
period as well as after.
Subsequent events have shown the wisdom of the apex
court’s judgment in reversing the high court order of
termination of pregnancy. AB was subjected to the
trauma of sexual intercourse without her consent,
that is, rape, while at the state-run home. Even with
consent, abortion can be a traumatic invasion of the self
and the body. Subjecting AB to an abortion against her
consent would have resulted in further trauma to her,
with deleterious effects on her mental health. Indeed,
an invasive procedure such as medical termination of
pregnancy without consent is violative of the integrity
of the body, an integral facet of the right to life and
liberty guaranteed under Article 21 of the Indian
Constitution.
AB gave birth to a daughter on December 3, 2009.
To quote Dr Raj Bahadur, director, Government Medical
College and Hospital, Chandigarh and the person in
charge of Ashreya: “To be honest, even I am surprised
at the tremendous maternal instincts she is showing.
In fact, even her mental health has improved
considerably after the child’s birth.”