Suchita Srivastava & Anr. Vs. Chandigarh Administration
Email[Arising out of SLP (C) No. 17985 of 2009]
[From the Judgement and Order dated 09.06.2009 and 17.07.2009 of the High Court of Punjab and Haryana at Chandigarh in CWP No. 8760 of 2009]
[Arising out of SLP (C) No. 17985 of 2009]
[From the Judgement and Order dated 09.06.2009 and 17.07.2009 of the High Court of Punjab and Haryana at Chandigarh in CWP No. 8760 of 2009]
Mr. Colin Gonsalves, Senior Advocate, Ms. Tanu Bedi, Mr. D.P. Singh, Mr. Sanjay Jain, Ms. Suchita Srivastava, Ms. Kamini Jaiswal, Mr. Anupam Gupta, Mr. Ashish Rawal, Advocates with him for the appearing parties.
Constitution of India, 1950
Articles 226, 14, 21 – Medical Termination of Pregnancy Act, 1971, Sections 3, 5 – Medical termination of pregnancy – Mentally retarded woman – Victim of rape – Medical Board Constituted – Report submitted – Report showing willingness of woman to bear child – Yet, High Court allowed and directed termination – If correct, without consent of the woman – If can be allowed when pregnancy is more than 19 weeks and termination can endanger the life and when expert body of medical experts reported that she was a mild to moderate case of mental retardation and was keen to have child. Held that no termination could take place without consent, which is mandatory under 1971 Act.
Articles 226, 14, 21 – Medical Termination of Pregnancy Act, 1971, Sections 3, 5 – Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995 – The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 – ‘Mental illness’ and ‘mental retardation’ – Act of 1971 recognising two terms differently – Act of 1999, collapsing these two terms – If both can be treated similarly for purposes of termination of pregnancy of a mentally retarded woman. Held that it will amount to interference in personal autonomy of woman. (Para 16)
Articles 226, 14, 21 – Medical Termination of Pregnancy Act, 1971, Sections 3, 5 – Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995 – Termination of pregnancy – Mentally retarded woman – Victim of rape – Retardation mild to moderate – If termination is in ‘best interest of victim’ – Test for applying doctrine of ‘Parens Patriae’. Held that on facts, it is the ‘best interest’ test which should be applied. When applied, facts would show that it is not in the ‘best interest’ of victim. Roe v. Wade’s case referred and relied upon.
Articles 226, 14, 21 – Medical Termination of Pregnancy Act, 1971, Sections 3, 5 – Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995 – Medical termination of pregnancy – Mentally retarded woman – Victim of rape – Retardation, mild to moderate – Willing to continue – No consent given – Termination norms under United Nation’s Declaration on the Rights of Mentally Retarded Persons, 1971 considered with other Law Journals and comments made on questions of after care and health of victim and child, after birth. (Paras 25-28)
Articles 226, 14, 21 – Medical Termination of Pregnancy Act, 1971, Sections 3, 5 – Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995 – Medical termination of pregnancy – Mentally retarded woman – Victim of rape – Termination without consent forbidden by Act of 1971 – Question that she was or was not capable of giving consent. Held, would be addressed in criminal proceedings as FIR is already lodged. (Para 29)
Ed.: The Court gave directions to provide best facilities to victim during pregnancy and post-natal period.
The State could claim that it is the guardian of the pregnant victim since she is an orphan and has been placed in government-run welfare institutions. However, the State’s claim to guardianship cannot be mechanically extended in order to make decisions about the termination of her pregnancy. An ossification test has revealed that the physical age of the victim is around 19-20 years. This conclusively shows that she is not a minor. Furthermore, her condition has been described as that of `mild mental retardation’ which is clearly different from the condition of a `mentally ill person’ as contemplated by Section 3(4)(a) of the MTP Act. (Para 13)
Legislation treats `mental illness’ and `mental retardation’ as two different forms of `disability’. This distinction is apparent if one refers to Section 2(i), (q) and (r) which define `disability’, `mental illness’ and `mental retardation’ . (Para 14)
While a guardian can make decisions on behalf a `mentally ill person’ as per Section 3(4)(a) of the MTP Act, the same cannot be done on behalf of a person who is in a condition of `mental retardation’. The only reasonable conclusion that can be arrived at in this regard is that the State must respect the personal autonomy of a mentally retarded woman with regard to decisions about terminating a pregnancy. We cannot permit a dilution of this requirement of consent since the same would amount to an arbitrary and unreasonable restriction on the reproductive rights of the victim. (Para 15)
The `Best interests’ test requires the Court to ascertain the course of action which would serve the best interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court’s decision should be guided by the interests of the victim alone and not those of other stakeholders such as guardians or society in general. It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights. (Para 19)
The application of the `Substituted Judgment’ test requires the court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if she was competent to do so. In the present case the victim has been described as a person suffering from `mild mental retardation’. This does not mean that she is entirely incapable of making decisions for herself. The preliminary medical opinion indicated that she had learnt to perform basic bodily functions and was capable of simple communications. In light of these findings, it is the `Best Interests’ test alone which should govern the inquiry in the present case and not the `Substituted Judgment’ test. (Para 20)
The victim has expressed her willingness to carry the pregnancy till its full term and bear a child. The Expert body has found that she has a limited understanding of the idea of pregnancy and may not be fully prepared for assuming the responsibilities of a mother. As per the findings, the victim is physically capable of continuing with the pregnancy and the possible risks to her physical health are similar to those of any other expecting mother. There is also no indication that the prospective child may be born with any congenital defects. (Para 22)
The direction given by the High Court (in its order dated 17.7.2009) to terminate the victim’s pregnancy was not in pursuance of her `best interests’. Performing an abortion at such a late-stage could have endangered the victims’ physical health and the same could have also caused further mental anguish to the victim since she had not consented to such a procedure. (Para 24)
1. Roe v. Wade [410 US 113 1973] (Para 23) (referred and relied upon)
1. Leave granted.
2. A Division Bench of the High Court of Punjab and Haryana in C.W.P. No. 8760 of 2009, by orders dated 9.6.2009 and 17.7.2009, ruled that it was in the best interests of a mentally retarded woman to undergo an abortion. The said woman (name withheld, hereinafter `victim’) had become pregnant as a result of an alleged rape that took place while she was an inmate at a government-run welfare institution located in Chandigarh. After the discovery of her pregnancy, the Chandigarh Administration, which is the respondent in this case, had approached the High Court seeking approval for the termination of her pregnancy, keeping in mind that in addition to being mentally retarded she was also an orphan who did not have any parent or guardian to look after her or her prospective child. The High Court had the opportunity to peruse a preliminary medical opinion and chose to constitute an Expert Body consisting of medical experts and a judicial officer for the purpose of a more thorough inquiry into the facts. In its order dated 9.6.2009, the High Court framed a comprehensive set of questions that were to be answered by the Expert Body. In such cases, the presumption is that the findings of the Expert Body would be given due weightage in arriving at a decision. However, in its order dated 17.7.2009 the High Court directed the termination of the pregnancy in spite of the Expert Body’s findings which show that the victim had expressed her willingness to bear a child.
3. Aggrieved by these orders, the appellants moved this Court and the second appellant – Ms. Tanu Bedi, Adv. appeared in person on 20.7.2009 and sought a hearing on an urgent basis because the woman in question had been pregnant for more than 19 weeks at that point of time. We agreed to the same since the statutory limit for permitting the termination of a pregnancy, i.e. 20 weeks was fast approaching. We issued notice to the Chandigarh Administration, pursuant to which Mr. Anupam Gupta, Adv. appeared before us and made oral submissions on behalf of the respondent. In the regular hearing held on 21.7.2009, both sides presenting compelling reasons in support of their respective stands. Mr. Colin Gonsalves, Sr. Adv. also appeared on behalf of an intervenor in support of the Chandigarh Administration’s stand. After hearing the counsel at length we had also considered the opinions of some of the medical experts who had previously examined the woman in question. Subsequent to the oral submissions made by the counsel and the medical experts, we had granted a stay on the High Court’s orders thereby ruling against the termination of the pregnancy.
4. The rationale behind our decision hinges on two broad considerations. The first consideration is whether it was correct on part of the High Court to direct the termination of pregnancy without the consent of the woman in question. This was the foremost issue since a plain reading of the relevant provision in the Medical Termination of Pregnancy Act, 1971 clearly indicates 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’. As will be explained below, there is a clear distinction between `mental illness’ and `mental retardation’ for the purpose of this statute. The second consideration before us is that even if the said woman was assumed to be mentally incapable of making an informed decision, what are the appropriate standards for a Court to exercise `Parens Patriae’ jurisdiction? If the intent was to ascertain the `best interests’ of the woman in question, it is our considered opinion that the direction for termination of pregnancy did not serve that objective. Of special importance is the fact that at the time of hearing, the woman had already been pregnant for more than 19 weeks and there is a medico-legal consensus that a late-term abortion can endanger the health of the woman who undergoes the same.
5. Before explaining both of the above-mentioned considerations at length, it will be useful to present an overview of the fact- situation which led to the present proceeding. The woman in question is an orphan who had been abandoned by her parents at an early age and subsequently she had been under the guardianship of the Missionaries of Charity, New Delhi. Thereafter, she had been admitted in the Government Institute for Mentally Retarded Children located in Sector 32, Chandigarh and was later on brought to the `Nari Niketan’ a welfare institution in Sector 26, Chandigarh. On 13.3.2009, she was shifted to `Ashreya’ – a newly established welfare institution. Both `Nari Niketan’ and `Ashreya’ are government-run institutions run by the Chandigarh Administration which fall under the administrative control of the Director, Social Welfare and the Director-Principal, Government Medical College and Hospital (GMCH), Sector 32, Chandigarh respectively.
6. On 16.5.2009, a medical social worker and a staff nurse working at `Ashreya’ observed that the victim was showing signs of nausea and had complained about pain in her lower abdomen in addition to disclosing the fact that she had missed her last two menstrual periods. Acting on their own initiative, the medical social worker and the staff nurse conducted a pregnancy test with a urine sample and found it to be positive. Following this development, a medical board consisting of two gynaecologists and a radiologist was constituted on 18.5.2009. The gynaecologists then examined the victim in a clinical environment and concluded that she had been pregnant for 8-10 weeks at the time. The radiologist also confirmed the fact of pregnancy on the basis of an ultrasound examination and recorded a gestation of approximately 9 weeks on the same day.
7. After the discovery of the pregnancy, the concerned authorities had informed the Chandigarh Police who filed FIR No. 155 (dated 18.5.2009) under Sections 376 and 120B of the Indian Penal Code at the Police Station located in Sector 26, Chandigarh. Subsequently, an ossification test conducted on the victim on 20.5.2009 had indicated her bone age to be around 19-20 years. The Director-Principal of the GMCH thereafter constituted a three member medical board on 25.5.2009 which was headed by the Chairperson of the Department of Psychiatry in the said hospital. Their task was to evaluate the mental status of the victim and they opined that the victim’s condition was that of `mild mental retardation’. Thereafter another multi-disciplinary medical board was constituted by the same authority which consisted of a gynaecologist, a radiologist, a paediatrician and a psychiatrist. This board was asked `to submit its considered opinion as to the consequences of continuation of pregnancy and the capability of the victim to cope with the same’. Board’s opinion was submitted on 27.5.2009, which recommended the termination of the victim’s pregnancy.
8. Since there was no clear statutory basis for proceeding with the abortion, the Chandigarh Administration moved the High Court of Punjab and Haryana seeking a judicial opinion on the said matter. In its order dated 9.6.2009 the High Court had taken note of the opinion given by the multi-disciplinary medical board on 27.5.2009. However, as a measure of abundant caution the High Court directed the authorities to constitute an Expert Body consisting of medical experts and framed a set of questions to be answered by this Body. The High Court stressed on the need for ensuring that this Expert Body would be independent from the administrative control or any form of influence by the Chandigarh Administration. The intention was that the Expert Body’s findings would enable the High Court to ascertain the `best interests’ of the woman in question. In pursuance of these directions, the Director of the Post Graduate Institute of Medical Education and Research (PGIMER), Chandigarh constituted an expert body comprising of (1) Dr. Ajit Awasthi, Department of Psychiatry (2) Dr. Savita Kumari, Department of Internal Medicine (3) Dr. Vanita Jain, Department of Obstetrics and Gynaecology, and (4) Dr. Meenu Singh, Department of Paediatrics. The High Court had also directed Smt. Raj Rahul Garg, Additional District and Sessions Judge, Chandigarh to act as the member-cum-coordinator of the Expert Body.
9. At this juncture, it would be pertinent to refer to the Expert Body’s findings which were duly recorded by the High Court in its order dated 17.7.2009. The text of the same is reproduced below:
Question framed by High Court Expert Body’s findings
in its order dated 9.6.2009 in C.W.P.
8760 of 2009
(i) The mental condition of the retardee She suffers from mild to moderate mental
retardation
(ii) Her mental and physical condition A case of mild to moderate mental and ability for self-sustenance retardation,
Pregnant: Single live foetus corresponding
to 13 weeks 3 days +/- 2 weeks, Post-
operative scars for spinal surgery,
HbsAG positive.
Her mental status affects her ability for
independent socio-occupational
functioning and self-sustenance. She
would need supervision and assistance.
(iii) Her understanding about the As per her mental status, she is
distinction between the child born out incapable of making the distinction between
of and outside the wedlock as well as a child born before or after marriage or
the social connotations attached thereto. outside the wedlock and is unable to
understand the social connotations
attached thereto.
(iv) Her capability to acknowledge the She knows that she is bearing a child
present and consequences of her own and is keen to have one. However, she is
future and that of the child she is bearing unable to appreciate and understand the
consequences of her own future and that
of the child she is bearing.
(v) Her mental and physical capacity to She is a young primigravida with
bear and raise a child abnormalities of gait and spinal
deformity and Hepatitis B surface antigen
positive status. However, she has
adequate physical capacity to bear and
raise a child.
She is a case of mild to moderate mental
retardation which often limits the mental
capacity to bear and raise a child in the
absence of adequate social support
and supervision
(vi) Her perception about bringing up a She has grossly limited perception about
child and the role of an ideal mother bringing up a child and the role of an
ideal mother
(vii) Does she believe that she has been She has a limited understanding of the
impregnated through unvolunteered sex? sexual act and relationship and even the
concept of getting pregnant. She did not
volunteer for sex and did not like the
sexual act.
(viii) Is she upset and/or anguished on She has no particular emotions on
account of the pregnancy alleged to have account of the pregnancy alleged to have
been caused by way of rape/un-willing sex? been caused by way of rape/un-willing
sex. She is happy with the idea that she
has a baby inside her and looks forward
to seeing the same.
(ix) Is there any risk of injury to the Her internal environment of pregnancy
physical or mental health of the victim does not pose any particular risk of
on account of her present foreseeable injury to the physical health of the victim.
environment? Her mental health can be further affected
by the stress of bearing and raising a child.
Her external environment in terms of her
place of stay and the support available
thereof is difficult to comment on because
of our lack of familiarity with the same.
She definitely needs a congenial and
supportive environment for her as well as
for the safety of the pregnancy.
(x) Is there any possibility of exerting Her mental state indicates high
undue influence through any means on the suggestibility because of her reliance on
decision-making capability of the victim? rote memory and imitative behaviour for
learning. Being highly suggestible her
decision-making can be easily influenced.
(xi) Do the overall surroundings provide We are not familiar with her overall
reasonable space to the victim to indulge surroundings, hence unable to comment.
in independent thinking process and take
firm decisions on the issues vital to her
life prospects?
(xii) What is the possible nature of the As per the neurosurgeon, spinal surgery
major spinal surgery alleged to have been during childhood could have been due to
undergone by the victim during her neural tube defect or spinal cord tumour.
childhood? Does it directly or indirectly This could have been confirmed by MRI
relate to the bony abnormalities of the tests, but the same could not be carried
victim? Can such abnormalities have a through as those were considered to be
genetic basis to be inherited by the baby? potentially hazardous for the foetus. There
is no history / records available for the
spinal surgery, hence, the safety profile
issues relevant for the patient undergoing
MRI like the possibility of use of any
mental screws to fix the spine wherein
MRI can be hazardous cannot be definitely
commented upon in this case. The neural
tube defect in the patient can lead to an
increased chance of neural tube defect in
the baby. However, these defects can be
detected by blood tests of the mother and
ultrasound. Presence of neural tube defect
in the parent is not an indication for
termination of pregnancy. It is not possible
to comment on the inheritance of spinal
cord tumours without knowing the exact
nature of the tumour.
(xiii) Is there a genuine possibility of certain The possibility of complications like
complications like chances of abortion, abortion, hypertension, prematurity, low
anaemia, hypertension, prematurity, low birth weight baby and foetal distress are
birth weight baby, foetal distress including similar to any pregnancy in a woman of
chances of anaesthetic complications, if this age group.
the victim in the present case is permitted Due to the spinal abnormality and gait
to carry on the pregnancy? defect she has a higher chance of
operative delivery and associated
anaesthetic complications. Spinal and gait
abnormalities are not an indication
for termination of pregnancy.
Pregnancy in women with Hepatitis B
surface antigen positive status is usually
uneventful. The prenatal transmission from
mother to infant can be prevented by giving
immunoprophylaxis to the neonate. Acute
or chronic Hepatitis B infection during
pregnancy is not an indication for
termination of pregnancy.
(xiv) What can be the most prudent Her physical status poses no major
course to be followed in the best interest physical contraindications to continue with
of the victim? the pregnancy. The health of foetus can be
monitored for any major congenital defects.
Her mental state indicates limited mental
capacity [intellectual, social adaptive and
emotional capacity] to bear and raise the
child. Social support and care for both
the mother and the child is another crucial
component. Therefore, any decision that is
taken keeping her best interests in mind
as well as those of her unborn child – has
to be based on the holistic assessment of
physical, psychological and social
parameters.
TERMINATION OF PREGNANCY CANNOT BE PERMITTED WITHOUT THE CONSENT OF THE VICTIM IN THIS CASE
10. Even though the Expert Body’s findings were in favour of continuation of the pregnancy, the High Court decided to direct the termination of the same in its order dated 17.7.2009. We disagree with this conclusion since the victim had clearly expressed her willingness to bear a child. Her reproductive choice should be respected in spite of other factors such as the lack of understanding of the sexual act as well as apprehensions about her capacity to carry the pregnancy to its full term and the assumption of maternal responsibilities thereafter. We have adopted this position since the applicable statute clearly contemplates that even a woman who is found to be `mentally retarded’ should give her consent for the termination of a pregnancy. In this regard we must stress upon the language of Section 3 of the Medical Termination of Pregnancy Act, 1971 [Hereinafter also referred to as `MTP Act’] which reads as follows:
‘3. When pregnancies may be terminated by registered medical practitioners.- (1) Notwithstanding anything contained in the Indian Penal Code [45 of 1860], a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any, pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner:- (a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or (b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are,
of opinion, formed in good faith, that –
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Explanation 1. – Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2. – Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub- section (2), account may be taken of the pregnant woman’s actual or reasonable foreseeable environment.
(4) (a) No pregnancy of a woman who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.’
11. A plain reading of the above-quoted provision makes it clear that Indian law allows for abortion only if the specified conditions are met. When the MTP Act was first enacted in 1971 it was largely modelled on the Abortion Act of 1967 which had been passed in the United Kingdom. The legislative intent was to provide a qualified `right to abortion’ and the termination of pregnancy has never been recognised as a normal recourse for expecting mothers. There is no doubt that a woman’s right to make reproductive choices is also a dimension of `personal liberty’ as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth-control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women there is also a `compelling state interest’ in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices.
12. A perusal of the above mentioned provision makes it clear that ordinarily a pregnancy can be terminated only when a medical practitioner is satisfied that a `continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health’ [as per Section 3(2)(i)] or when `there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped’ [as per Section 3(2)(ii)]. While the satisfaction of one medical practitioner is required for terminating a pregnancy within twelve weeks of the gestation period, two medical practitioners must be satisfied about either of these grounds in order to terminate a pregnancy between twelve to twenty weeks of the gestation period. The explanations to this provision have also contemplated the termination of pregnancy when the same is the result of a rape or a failure of birth-control methods since both of these eventualities have been equated with a `grave injury to the mental health’ of a woman. In all such circumstances, the consent of the pregnant woman is an essential requirement for proceeding with the termination of pregnancy. This position has been unambiguously stated in Section 3(4)(b) of the MTP Act, 1971. The exceptions to this rule of consent have been laid down in Section 3(4)(a) of the Act. Section 3(4)(a) lays down that when the pregnant woman is below eighteen years of age or is a `mentally ill’ person, the pregnancy can be terminated if the guardian of the pregnant woman gives consent for the same. The only other exception is found in Section 5(1) of the MTP Act which permits a registered medical practitioner to proceed with a termination of pregnancy when he/she is of an opinion formed in good faith that the same is `immediately necessary to save the life of the pregnant woman’. Clearly, none of these exceptions are applicable to the present case.
13. In the facts before us, the State could claim that it is the guardian of the pregnant victim since she is an orphan and has been placed in government-run welfare institutions. However, the State’s claim to guardianship cannot be mechanically extended in order to make decisions about the termination of her pregnancy. An ossification test has revealed that the physical age of the victim is around 19-20 years. This conclusively shows that she is not a minor. Furthermore, her condition has been described as that of `mild mental retardation’ which is clearly different from the condition of a `mentally ill person’ as contemplated by Section 3(4)(a) of the MTP Act. It is pertinent to note that the MTP Act had been amended in 2002, by way of which the word `lunatic’ was replaced by the expression `mentally ill person’ in Section 3(4)(a) of the said statute. The said amendment also amended Section 2(b) of the MTP Act, where the erstwhile definition of the word `lunatic’ was replaced by the definition of the expression `mentally ill person’ which reads as follows:
‘2(b) `mentally ill person’ means a person who is in need of treatment by reason of any mental disorder other than mental retardation.’
14. The 2002 amendment to the MTP Act indicates that the legislative intent was to narrow down the class of persons on behalf of whom their guardians could make decisions about the termination of pregnancy. It is apparent from the definition of the expression `mentally ill person’ that the same is different from that of `mental retardation’. A similar distinction can also be found in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. This legislation treats `mental illness’ and `mental retardation’ as two different forms of `disability’. This distinction is apparent if one refers to Section 2(i), (q) and (r) which define `disability’, `mental illness’ and `mental retardation’ in the following manner:
‘2(i) `disability’ means – (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness;
2(q) `mental illness’ means any mental disorder other than mental retardation
2(r) `mental retardation’ means a condition of arrested or incomplete development of mind of a person which is specially characterised by subnormality of intelligence.’
15. The same definition of `mental retardation’ has also been incorporated in Section 2(g) of The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. These legislative provisions clearly show that persons who are in a condition of `mental retardation’ should ordinarily be treated differently from those who are found to be `mentally ill’. While a guardian can make decisions on behalf a `mentally ill person’ as per Section 3(4)(a) of the MTP Act, the same cannot be done on behalf of a person who is in a condition of `mental retardation’. The only reasonable conclusion that can be arrived at in this regard is that the State must respect the personal autonomy of a mentally retarded woman with regard to decisions about terminating a pregnancy. It can also be reasoned that while the explicit consent of the woman in question is not a necessary condition for continuing the pregnancy, the MTP Act clearly lays down that obtaining the consent of the pregnant woman is indeed an essential condition for proceeding with the termination of a pregnancy. As mentioned earlier, in the facts before us the victim has not given consent for the termination of pregnancy. We cannot permit a dilution of this requirement of consent since the same would amount to an arbitrary and unreasonable restriction on the reproductive rights of the victim. We must also be mindful of the fact that any dilution of the requirement of consent contemplated by Section 3(4)(b) of the MTP Act is liable to be misused in a society where sex-selective abortion is a pervasive social evil.
16. Besides placing substantial reliance on the preliminary medical opinions presented before it, the High Court has noted some statutory provisions in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 as well as The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 where the distinction between `mental illness’ and `mental retardation’ has been collapsed. The same has been done for the purpose of providing affirmative action in public employment and education as well as for the purpose of implementing anti-discrimination measures. The High Court has also taken note of provisions in the IPC which lay down strong criminal law remedies that can be sought in cases involving the sexual assault of `mentally ill’ and `mentally retarded’ persons. The High Court points to the blurring of these distinctions and uses this to support its conclusion that `mentally ill’ persons and those suffering from `mental retardation’ ought to be treated similarly under the MTP Act, 1971. We do not agree with this proposition. We must emphasize that while the distinction between these statutory categories can be collapsed for the purpose of empowering the respective classes of persons, the same distinction cannot be disregarded so as to interfere with the personal autonomy that has been accorded to mentally retarded persons for exercising their reproductive rights.
TERMINATION OF PREGNANCY IS NOT IN THE `BEST INTERESTS’ OF THE VICTIM
17. In the impugned orders, the High Court has in fact agreed with the proposition that a literal reading of Section 3 of the MTP Act would lead to the conclusion that a mentally retarded woman should give her consent in order to proceed with the termination of a pregnancy. However, the High Court has invoked the doctrine of `Parens Patriae’ while exercising its writ jurisdiction to go beyond the literal interpretation of the statute and adopt a purposive approach. The same doctrine has been used to arrive at the conclusion that the termination of pregnancy would serve the `best interests’ of the victim in the present case even though she has not given her consent for the same. We are unable to accept that line of reasoning.
18. The doctrine of `Parens Patriae’ has been evolved in common law and is applied in situations where the State must make decisions in order to protect the interests of those persons who are unable to take care of themselves. Traditionally this doctrine has been applied in cases involving the rights of minors and those persons who have been found to be mentally incapable of making informed decisions for themselves. Courts in other common law jurisdictions have developed two distinct standards while exercising `Parens Patriae’ jurisdiction for the purpose of making reproductive decisions on behalf of mentally retarded persons. These two standards are the `Best interests’ test and the `Substituted judgment’ test.
19. As evident from its literal description, the `Best interests’ test requires the Court to ascertain the course of action which would serve the best interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court’s decision should be guided by the interests of the victim alone and not those of other stakeholders such as guardians or society in general. It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights.
20. The application of the `Substituted Judgment’ test requires the court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if she was competent to do so. This is a more complex inquiry but this test can only be applied to make decisions on behalf of persons who are conclusively shown to be mentally incompetent. In the present case the victim has been described as a person suffering from `mild mental retardation’. This does not mean that she is entirely incapable of making decisions for herself. The findings recorded by the Expert Body indicate that her mental age is close to that of a nine-year old child and that she is capable of learning through rote-memorisation and imitation. Even the preliminary medical opinion indicated that she had learnt to perform basic bodily functions and was capable of simple communications. In light of these findings, it is the `Best Interests’ test alone which should govern the inquiry in the present case and not the `Substituted Judgment’ test.
21. We must also be mindful of the varying degrees of mental retardation – namely those described as borderline, mild, moderate, severe and profound instances of the same. Persons suffering from severe and profound mental retardation usually require intensive care and supervision and a perusal of academic materials suggests that there is a strong preference for placing such persons in an institutionalised environment. However, persons with borderline, mild or moderate mental retardation are capable of living in normal social conditions even though they may need some supervision and assistance from time to time. A developmental delay in mental intelligence should not be equated with mental incapacity and as far as possible the law should respect the decisions made by persons who are found to be in a state of mild to moderate `mental retardation’.
22. In the present case, the victim has expressed her willingness to carry the pregnancy till its full term and bear a child. The Expert body has found that she has a limited understanding of the idea of pregnancy and may not be fully prepared for assuming the responsibilities of a mother. As per the findings, the victim is physically capable of continuing with the pregnancy and the possible risks to her physical health are similar to those of any other expecting mother. There is also no indication that the prospective child may be born with any congenital defects. However, it was repeatedly stressed before us that the victim has a limited understanding of the sexual act and perhaps does not anticipate the social stigma that may be attached to a child which will be born on account of an act of rape. Furthermore, the medical experts who appeared before us also voiced the concern that the victim will need constant care and supervision throughout the pregnancy as well as for the purposes of delivery and childcare after birth. Maternal responsibilities do entail a certain degree of physical, emotional and social burdens and it was proper for the medical experts to gauge whether the victim is capable of handling them. The counsel for the respondent also alerted us to the possibility that even though the victim had told the members of the Expert Body that she was willing to bear the child, her opinion may change in the future since she was also found to be highly suggestible.
23. Even if it were to be assumed that the victim’s willingness to bear a child was questionable since it may have been the product of suggestive questioning or because the victim may change her mind in the future, there is another important concern that should have been weighed by the High Court. At the time of the order dated 17.7.2009, the victim had already been pregnant for almost 19 weeks. By the time the matter was heard by this Court on an urgent basis on 21.7.2009, the statutory limit for terminating a pregnancy, i.e. 20 weeks, was fast approaching. There is of a course a cogent rationale for the provision of this upper limit of 20 weeks (of the gestation period) within which the termination of a pregnancy is allowed. This is so because there is a clear medical consensus that an abortion performed during the later stages of a pregnancy is very likely to cause harm to the physical health of the woman who undergoes the same. This rationale was also noted in a prominent decision of the United States Supreme Court in Roe v. Wade [410 US 113 1973], which recognised that the right of a woman to seek an abortion during the early-stages of pregnancy came within the constitutionally protected `right to privacy’. Even though this decision had struck down a statutory provision in the State of Texas which had criminalized the act of undergoing or performing an abortion, (except in cases where the pregnancy posed a grave risk to the health of the mother) it had also recognised a `compelling state interest’ in protecting the life of the prospective child as well as the health of the pregnant woman after a certain point in the gestation period. This reasoning was explained in the majority opinion delivered by Blackmun, J., 410 US 113, 162-163 (1973):
‘In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a non-resident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes `compelling’.
(internal citations omitted)
With respect to the State’s important and legitimate interest in the health of the mother, the `compelling’ point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, (internal citation omitted), that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. …’
24. In light of the above-mentioned observations, it is our considered opinion that the direction given by the High Court (in its order dated 17.7.2009) to terminate the victim’s pregnancy was not in pursuance of her `best interests’. Performing an abortion at such a late-stage could have endangered the victims’ physical health and the same could have also caused further mental anguish to the victim since she had not consented to such a procedure. We must also mention that the High Court in its earlier order had already expressed its preference for the termination of the victim’s pregnancy (See Para. 38 in Order dated 9.6.2009) even as it proceeded to frame a set of questions that were to be answered by a Expert Body which was appointed at the instance of the High Court itself. In such a scenario, it would have been more appropriate for the High Court to express its inclination only after it had considered the findings of the Expert Body.
25. Our conclusions in this case are strengthened by some norms developed in the realm of international law. For instance one can refer to the principles contained in the United Nations Declaration on the Rights of Mentally Retarded Persons, 1971 [G.A. Res. 2856 (XXVI) of 20 December, 1971] which have been reproduced below:
‘1. The mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings.
2. The mentally retarded person has a right to proper medical care and physical therapy and to such education, training, rehabilitation and guidance as will enable him to develop his ability and maximum potential.
3. The mentally retarded person has a right to economic security and to a decent standard of living. He has a right to perform productive work or to engage in any other meaningful occupation to the fullest possible extent of his capabilities.
4. Whenever possible, the mentally retarded person should live with his own family or with foster parents and participate in different forms of community life. The family with which he lives should receive assistance. If care in an institution becomes necessary, it should be provided in surroundings and other circumstances as close as possible to those of normal life.
5. The mentally retarded person has a right to a qualified guardian when this is required to protect his personal well-being and interests.
6. The mentally retarded person has a right to protection from exploitation, abuse and degrading treatment. If prosecuted for any offence, he shall have a right to due process of law with full recognition being given to his degree of mental responsibility.
7. Whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguards against every form of abuse. This procedure must be based on an evaluation of the social capability of the mentally retarded person by qualified experts and must be subject to periodic review and to the right of appeal to higher authorities.’
26. Special emphasis should be placed on Principle 7 (cited above) which prescribes that a fair procedure should be used for the `restriction or denial’ of the rights guaranteed to mentally retarded persons, which should ordinarily be the same as those given to other human beings. In respecting the personal autonomy of mentally retarded persons with regard to the reproductive choice of continuing or terminating a pregnancy, the MTP Act lays down such a procedure. We must also bear in mind that India has ratified the Convention on the Rights of Persons with Disabilities (CRPD) on October 1, 2007 and the contents of the same are binding on our legal system.
27. The facts of the present case indeed posed some complex questions before us. While we must commend the counsel for their rigorous argumentation, this case also presents an opportunity to confront some social stereotypes and prejudices that operate to the detriment of mentally retarded persons. Without reference to the present proceedings, we must admit to the fact that even medical experts and judges are unconsciously susceptible to these prejudices. [See generally: Susan Stefan, `Whose Egg is it anyway? Reproductive Rights of Incarcerated, Institutionalized and Incompetent Women’, 13 Nova Law Review 405-456 (November 1989)] We have already stressed that persons who are found to be in borderline, mild and moderate forms of mental retardation are capable of living in normal social conditions and do not need the intensive supervision of an institutionalised environment. As in the case before us, institutional upbringing tends to be associated with even more social stigma and the mentally retarded person is denied the opportunity to be exposed to the elements of routine living. For instance, if the victim in the present case had received the care of a family environment, her guardians would have probably made the efforts to train her to avoid unwelcome sexual acts. However, the victim in the present case is an orphan who has lived in an institutional setting all her life and she was in no position to understand or avoid the sexual activity that resulted in her pregnancy. The responsibility of course lies with the State and fact-situations such as those in the present case should alert all of us to the alarming need for improving the administration of the government-run welfare institutions.
28. It would also be proper to emphasize that persons who are found to be in a condition of borderline, mild or moderate mental retardation are capable of being good parents. Empirical studies have conclusively disproved the eugenics theory that mental defects are likely to be passed on to the next generation. The said `Eugenics theory’ has been used in the past to perform forcible sterilisations and abortions on mentally retarded persons. [See generally: Elizabeth C. Scott, `Sterilization of Mentally Retarded Persons: Reproductive Rights and Family Privacy’, Duke Law Journal 806-865 (November 1986)] We firmly believe that such measures are anti-democratic and violative of the guarantee of `equal protection before the law’ as laid down in Article 14 of our Constitution. It is also pertinent to note that a condition of `mental retardation’ or developmental delay is gauged on the basis of parameters such as Intelligence Quotient (I.Q.) and Mental Age (M.A.) which mostly relate to academic abilities. It is quite possible that a person with a low I.Q. or M.A. may possess the social and emotional capacities that will enable him or her to be a good parent. Hence, it is important to evaluate each case in a thorough manner with due weightage being given to medical opinion for deciding whether a mentally retarded person is capable of performing parental responsibilities.
CONCLUSION AND DIRECTIONS
29. With regard to the facts that led to the present proceeding, the question of whether or not the victim was capable of consenting to the sexual activity that resulted in her pregnancy will be addressed in the criminal proceedings before a trial court. An FIR has already been filed in the said matter and two security-guards from Nari Niketan are being investigated for their role in the alleged rape.
30. The substantive questions posed before us were whether the victim’s pregnancy could be terminated even though she had expressed her willingness to bear a child and whether her `best interests’ would be served by such termination. As explained in the fore-mentioned discussion, our conclusion is that the victim’s pregnancy cannot be terminated without her consent and proceeding with the same would not have served her `best interests’. In our considered opinion, the language of the MTP Act clearly respects the personal autonomy of mentally retarded persons who are above the age of majority. Since none of the other statutory conditions have been met in this case, it is amply clear that we cannot permit a dilution of the requirement of consent for proceeding with a termination of pregnancy. We have also reasoned that proceeding with an abortion at such a late stage (19-20 weeks of gestation period) poses significant risks to the physical health of the victim. Lastly, we have urged the need to look beyond social prejudices in order to objectively decide whether a person who is in a condition of mild mental retardation can perform parental responsibilities.
31. The findings recorded by the Expert body which had examined the victim indicate that the continuation of the pregnancy does not pose any grave risk to the physical or mental health of the victim and that there is no indication that the prospective child is likely to suffer from a congenital disorder. However, concerns have been expressed about the victim’s mental capacity to cope with the demands of carrying the pregnancy to its full term, the act of delivering a child and subsequent childcare. In this regard, we direct that the best medical facilities be made available so as to ensure proper care and supervision during the period of pregnancy as well as for post-natal care. Since there is an apprehension that the woman in question may find it difficult to cope with maternal responsibilities, the Chairperson of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities (constituted under the similarly named 1999 Act) has stated in an affidavit that the said Trust is prepared to look after the interests of the woman in question which will include assistance with childcare. In the said affidavit, it has been stated that this Trust will consult the Chandigarh Administration as well as experts from the Post Graduate Institute of Medical Education and Research (PGIMER) in order to ensure proper care and supervision. If any grievances arise with respect to the same subject matter in the future, the respondent can seek directions from the High Court of Punjab and Haryana under its writ jurisdiction.
32. The present appeal is disposed off accordingly.
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