Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
2024 INSC 371
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 5194 of 2024
A (Mother of X) …Appellant
Versus
State of Maharashtra & Anr. …Respondents
J U D G M E N T
Dr Dhananjaya Y Chandrachud, CJI
Background
1. This appeal emanates from a judgment of a Division Bench of the High
Court of Judicature at Bombay dated 4 April 2024 which denied the minor
daughter of the Appellant (hereinafter referred to as ‘X’) permission to terminate
her pregnancy. ‘X’ is a minor, about fourteen years of age and is alleged to have
been subjected to sexual assault in September 2023. The incident did not come
Signature Not Verified
Digitally signed by
CHETAN KUMAR
Date: 2024.05.03
14:37:02 IST
Reason:
to the fore till ‘X’ revealed the incident on 20 March 2024 by which time she was
Page 1 of 22
about 25 weeks into her pregnancy. ‘X’, it has been averred, always had irregular
periods and could not have assessed her pregnancy earlier.
2. An FIR was registered with Turbhe MIDC Police Station against the alleged
perpetrator on 20 March 2024 for offences punishable under Section 376 of the
Indian Penal Code and Sections 4, 8 and 12 of the Protection of Children from
Sexual Offences Act 2012. ‘X’ was taken to a hospital on 21 March 2024 for
medical examination and then transferred to the JJ Group of Hospitals, Mumbai
for termination of her pregnancy. On 28 March 2024 the medical board of the
Grant Government Medical College & Sir JJ Group of Hospitals, Mumbai
1
constituted under the Medical Termination of Pregnancy Act 1971 opined that
‘X’ was physically and mentally fit for termination of her pregnancy subject to the
permission of the High Court.
3. The Appellant moved the High Court of Judicature at Bombay under Article
226 of the Constitution seeking the termination of pregnancy of her daughter. On
3 April 2024, the medical board issued a ‘clarificatory’ opinion, without re-
examining ‘X’. The report denied the termination of pregnancy on the ground that
the gestational age of the fetus was twenty-seven to twenty-eight weeks and that
2
there were no congenital abnormalities in the fetus. By the impugned judgment
the High Court dismissed the writ petition on the ground that the pregnancy
exceeded the statutory period of twenty-four weeks.
1
MTP Act
2
There is an inexplicable inconsistency on the gestational age in the report of the medical
board of the Grant Government Medical College & Sir JJ Group of Hospitals, Mumbai dated
28 March 2024. Point 5 and 6 of the report mention the gestational age as 27 weeks, but the
opinion of the board in point 7 mentions the gestational age to be 28 weeks.
Page 2 of 22
4. The Appellant moved this court under Article 136 of the Constitution. The
Special Leave Petition was mentioned for urgent orders after the Court had risen
on the conclusion of normal working hours at 5:15 pm on 19 April 2024. The Bench
reassembled immediately thereafter and had the benefit of hearing the counsel
for the Appellant, the Standing Counsel for the State of Maharashtra and Ms
Aishwarya Bhati, Additional Solicitor General. While issuing notice, this Court took
note of the fact that the report of the Medical Board dated 3 April 2024, 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 ‘X’. Accordingly, a fresh Medical
Board was directed to be constituted under the Lokmanya Tilak Municipal
3
General Hospital and Lokmanya Tilak Municipal Medical College, Sion, Mumbai.
This Court directed that:
“5. From the material which has been placed on the
record, a striking feature which has emerged before
this Court, prima facie , is that the medical report does
not contain an evaluation of the physical and mental
status of the minor, particularly having regard to the
background leading up to the pregnancy, including
the alleged sexual assault. Moreover, it would be
necessary that this Court is apprised whether the
carrying of the pregnancy to the full term would
impact upon the physical and mental well being of
the minor who is barely fourteen years old. The
Medical Board shall also opine on whether a
termination of the pregnancy can be carried out at
this stage without any threat to the life of the minor.
6. In this view of the matter, we are of the view that the
petitioner’s daughter should be examined afresh by
a Medical Board to be constituted at the Lokmanya
Tilak Municipal General Hospital and Lokmanya Tilak
Municipal Medical College, Sion, Mumbai tomorrow
(20 April 2024). We request the Medical
Superintendent of the hospital to constitute a
Medical Board for that purpose.”
3
Sion Hospital
Page 3 of 22
5. A report has been submitted by the Sion Hospital. The minor was examined
by a team of six doctors constituted by the Dean. The composition of the team
was as follows:
(i) Dr Rajesh Dere, Prof. & Head Dept. of Forensic Medicine;
Dr Anagha Joshi, Prof. & Head Dept. of Radiology;
(ii)
(iii) Dr Amarjitsingh Bawa, Additional Prof. Of Dept. of Gynecology & acting
Head of Department;
(iv) Dr Nilesh Shah, Prof. & Head Dept. of Psychiatry; and
(v) Dr Swati Manerkar, Prof. & Head Dept. of Neonatology;
6. After examining ‘X’, 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 ‘X’. Further, it opined that
the pregnancy can be terminated with a degree of risk not higher than if the
pregnancy was taken to term. The medical board reported as follows:
“1. Whether carrying of the pregnancy to the full
term would impact upon the physical and mental
well being of the minor who is barely 14 years?
Ans. Yes, continuation of pregnancy against her will
may impact negatively on physical and mental well
being of the minor who is barely 14 year old.
2. The medical board shall also opine whether
termination of pregnancy can be carried out at this
stage without any threat to the life of the minor?
Ans. Yes, termination can be carried out at this stage.
The threat of life to the patient if termination of
pregnancy carried out at this stage is not higher than
Page 4 of 22
the risk of delivery at full term of pregnancy. Also in
view of minor being barely 14 years, the chances of
surgical intervention (Abdominal Surgery) at term or
now may be there.”
7. While forwarding the report of the Medical Board, the Dean of Sion Hospital
has noted the opinion of the Board in the following terms:
“The opinion of the committee is forwarded herewith
for your perusal. The committee has opined that the
medical termination of the pregnancy can be done
with due risk and with appropriate counseling of the
patient and the relatives. The Psychiatrist also
contributed in evaluation of patient and assessing
the psychological state of the patient. According to
the committee report continuation of pregnancy
could cause psychological trauma to the patient.”
8. On 22 April 2024, this Court granted leave and pronounced its operative
order to set aside the judgment of the High Court of Judicature at Bombay. In view
of the urgency involved, while reserving judgment, this Court allowed ‘X’ to
terminate her pregnancy forthwith. This Court noted as follows:
“10 The following circumstances have been borne in
mind, at this stage:
(i) The medical termination of pregnancy is sought
in respect of a minor who is 14 years old;
(ii) The pregnancy is alleged to be an emanation
from a sexual assault which has resulted in the
registration of a First Information Report. The FIR was
recorded on 20 March 2024 beyond the period of 24
weeks envisaged in the MTP Act;
(iii) The minor was unaware of the fact that she was
pregnant until a very late stage;
(iv) The Medical Board at Sion Hospital has clearly
opined that the continuation of the pregnancy
against the will of the minor “may impact negatively
on physical and mental well being of the minor who
is barely 14 years old”; and
(v) While a certain degree of risk is involved in every
procedure for medical termination, the Medical
Board has opined that the threat to life of the patient
if termination of pregnancy is carried out at this stage
Page 5 of 22
is not higher than the risk of delivery at full term of
pregnancy.
11. We will further elaborate on the guiding
parameters in a reasoned order which will be
delivered separately. However, bearing in mind the
exigencies of the situation, the welfare of the minor,
which is of paramount importance and her safety,
we pass the following order:
(i) The judgment and order of the High Court of
Judicature at Bombay dated 4 April 2024 shall stand
set aside for reasons to follow;
(ii) The Dean at Sion Hospital is requested to
immediately constitute a team for undertaking the
medical termination of pregnancy of the minor in
respect of whom the Medical Board has submitted its
report dated 20 April 2024;
(iii) Arrangements shall be made by the State for
transportation of the minor to the Hospital and for her
return home after the completion of the procedure;
(iv) The State has agreed to bear all the expenses in
connection with the procedure and all medical
expenses required in the interest of the safety and
welfare of the minor; and
(v) Post-termination if any further medical care is
required, this may be ensured in the interest of the
minor.”
9. The above direction requesting the Dean at Sion hospital to constitute a
team of doctors for undertaking the medical termination of pregnancy of ‘X’ was
based on the specific request of the appellant who is her mother.
10. Subsequently, a communication dated 26 April 2024 was addressed by the
Dean at Sion hospital to Ms Aishwarya Bhati, Additional Solicitor General. The
communication reads thus:
“ Sub:-Guidance regarding Case No.9163/2024 order
dated 22.04.2024.
Ref:- Case No.9163/2024.
Respected Madam,
Order was given by Hon. Supreme Court of India to
Dean at LTMMC & LTMGH, Sion to immediately
Page 6 of 22
constitute a team for undertaking the Medical
termination of pregnancy of the minor in respect of
whom the Medical Board has submitted its report
dated 20.04.2024. On the basis of the order the
patient has been admitted at LTMMC & LTMGH, Sion
on 23.04.2024 under the expert care of Dr.
Amarjitsingh Bawa, Associate Professor & Unit Chief
Department of Gynecology.
The Team for undertaking the termination of
pregnancy is formed as below:-
1. Dr. Arun Nayak, Prof & Head, Department of
Obst & Gynecology.
2. Dr. Rahul Mayekar, Prof & Unit Chief,
Department of Obst & Gynecology.
3. Dr. Amarjitsingh Bawa, Asso. Prof & Unit Chief,
Department of Obst & Gynecology.
4. Dr. Swati Manerkar, Adhoc Prof & Head (I/C),
Department of Neonatology.
5. Dr. Nilesh Shah, Prof & Head, Department of
Psychiatry.
We request guidance of Hon. Supreme Court of India
before proceeding for termination of pregnancy in
the said case of minor girl in view of.
1. We would like to humbly bring to the attention of the
Honorable Supreme Court of India that the minor girl's
mother is changing her statements. On 24.04.2024
father and mother of the minor girl gave in writing
that they gave permission to stop the baby's heart in
utero by injecting medicine in the heart. They also
gave permission for attempting normal delivery of the
minor girl by giving medicine. During this, if the
pregnant minor girl suffers any problem, under such
circumstances cesarean section operation may be
needed, and they gave permission for the same. If
even after giving injection baby is born alive, then
they would like to give the baby for adoption.
2. On 25.04.2024 minor girl's mother said that she
wanted alive baby & she wanted to give live baby to
her relative for adoption. Thus we noticed that the
mother of the said girl was changing her statements.
3. On 26.04.2024 the mother of the girl said in front of
Medical team that she wants termination of
Page 7 of 22
pregnancy after the baby's heart is stopped by
injecting medicine in the heart.
4. Hence, due to the changing statements made by
the girl's parents and the fact that the sonography
done at our hospital on 25.04.2024 reveled 30.2 weeks
with baby weight of 1593grams, we humbly request
Hon. Supreme Court of India to guide us whether
(1) The baby should be delivered alive.
OR
(2) After injecting intracardiac injection KCL to end
the life of the fetus in utero as per
a. The Government of India guidelines MOHFW D.O No.
M. 12015/58/2017- MCH dated 14.08.2017, vide
section Ve (Copy attached).
b. . . / / / . /
जा क्र पीसीपीएनडीट ȣ क ¢ ८ ड नस्ती क्र ५०७ २०
राकुकका
/ .
आठवडयाप ͧलकडील वैद्यक ȧय गभर्पात मा उच्च न्यायालय आदेश
/
स्थायी वैद्यक ȧय मंडळ व मान्यता प्राप्त वैद्यक ȧय गभर्पात क Ʌ द्रांनी
(SOPs) / :-
कायर्मागर्दशर्क तत्वे Ǒदनांक ०
अनुसरावयाची
. . . vide section IVc (Copy attached)
१८ ०१ २०२०
5. We are ready to do the termination of pregnancy as
per the directives of the Hon. Supreme Court of India.
If the baby is born alive, we are ready to keep the
baby in the Neonatal Intensive Care Unit if required
under the care of neonatologist.”
11. On the communication being drawn to the attention of the Registrar
(Judicial – I), the proceedings were listed before the Court on 29 April 2024, which
was the first available working day.
12. In view of the communication of the Dean at Sion hospital, we had the
benefit of hearing submissions of counsel again. We considered it appropriate to
thereafter interact with the parents of ‘X’ as well as with the medical team at Sion
hospital. We have had an elaborate discussion with the medical team consisting
of Dr Arun H Nayak, Professor and Head of the Department of Obstetrics and
Page 8 of 22
Gynecology and Dr Amarjeet Kaur Bava, Associate Professor and Unit Chief,
Department of Obstetrics and Gynecology, over the video conferencing
platform.
13. Dr Arun H Nayak has indicated that after the order of this Court dated 22
April 2024, the medical team followed requisite procedures by carrying out
medical investigations and seeking the consent of the parents. According to the
medical team, while initially the parents were agreeable to the stoppage of the
fetal heart on 24 April 2024, on 25 April 2024 the appellant stated that she desires
that the pregnancy be taken to term and that she would thereafter give the child
in adoption. Subsequently, on 26 April 2024, the appellant stated that she desired
a termination of pregnancy.
14. The doctors stated that in view of the changing views of the appellant and
her spouse and the above background, they had moved the Additional Solicitor
General with a communication dated 26 April 2024 of the Dean of the Sion
hospital, as extracted above. Dr Nayak and Dr Bava have stated that in terms of
the guidelines of the Union Government dated 14 August 2017, medical steps
would have to be taken by giving an intracardiac injection, KCL, to end the life of
the fetus in utero. An SOP has also been issued by the State Government on 18
January 2020. The doctors have stated that the pregnancy of the minor is at an
advanced stage. In terms of the applicable guidelines, 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
Page 9 of 22
may involve a certain degree of risk to the minor which cannot be ruled out
bearing in mind the late stage of the pregnancy.
15. The parents of ‘X’ have conversed with the doctors and with the Court on
the video conferencing platform in Hindi. Their 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. We appreciate the concerns of the parents and their
anguish, particularly having regard to the backdrop in which the pregnancy is
stated to have arisen. The issue is about the way forward at the present stage.
16. During the course of the conversation online, the doctors have deliberated
on whether a delivery can be induced at this stage. However, both the doctors
ruled out such a course of action bearing in mind that inducing a delivery at this
stage may have real risks of a deformed child as a result of the premature birth.
The situation has been duly explained to the parents of the minor.
17. It has emerged during the course of the discussion that both the parents of
‘X’ 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. During the course of the discussion, Dr
Bava indicated to the parents that Sion hospital is ready and willing to let ‘X’ be in
the care of the hospital from now until the date of the delivery. However, the
father of the minor has specifically stated the he would prefer to take the minor
home where she would be in more congenial surroundings with the members of
her family. The doctors have indicated to the father and the mother that they
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should bring the minor back to the hospital for regular antenatal checkups.
18. This Court by its earlier order had authorized the medical team at the Sion
hospital to carry out the termination of pregnancy. The reasons on the basis of
which such a course was adopted have been elaborated upon in the earlier
order, which is extracted above. Even when the Court passed the order on the
previous occasion, the minor was in the thirtieth week of her pregnancy. She is
now nearing the end of the thirty first week of pregnancy.
19. The sole and only consideration which must weigh with the Court at this
stage is the safety and welfare of the minor. We are conscious of the trauma which
the minor will face in having to continue the pregnancy for approximately five
weeks, if the course of action which has been suggested by her parents is
accepted. The Court has been informed that the minor is ready and willing to
accept the decision of her parents which is in her best interest. 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. Bearing in mind the detailed discussion which took place,
the parents of the minor have chosen not to press ahead with the termination of
the advanced pregnancy at the present point of time. This decision, should, in our
view, be accepted bearing in mind all that has been set out in the earlier part of
this order. As a consequence, the earlier order of this Court dated 22 April 2024
shall stand recalled.
20. Before parting with this judgment we would like to shed light on two issues
which have caught our attention in these proceedings. First, the opinion of the
Page 11 of 22
medical board constituted under the MTP Act must reflect the effect of the
pregnancy on the pregnant person's physical and mental health. Second, the MTP
Act and the reproductive right of a pregnant person gives primacy to their
consent.
Role of the RMP and medical board under the MTP Act
4
21. In X v. State (NCT of Delhi) , a three-judge bench of this Court had
5
recognised that the fear of prosecution among registered medical practitioners
6
is a barrier for pregnant persons to access safe and legal abortions. The opinion
of the RMP is decisive in matters of termination of pregnancy under the MTP Act.
The 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. The right to abortion is a concomitant right of dignity,
autonomy and reproductive choice. This right is guaranteed under Article 21 of
the Constitution. The decision to terminate pregnancy is deeply personal for any
person. The choice exercised by a pregnant person is not merely about their
reproductive freedom but also about their agency as recognised by this court in
7
X v. State (NCT of Delhi) . 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.
4
(2023) 9 SCC 433
5
“RMP”
6
We use the term ‘pregnant person’ and recognize that in addition to cisgender women,
pregnancy can also be experienced by some non-binary people and transgender men
among other gender identities.
7
(2023) 9 SCC 433
Page 12 of 22
22. Section 3(1) of the MTP Act protects the registered medical practitioner
8
from penal provisions against abortion, under the Indian 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.
23. The opinion of the RMP or the medical board, as the case may be, is
indispensable under the scheme of the MTP Act. This inadvertently gives the power
to the RMP or the medical board to stand in the way of a pregnant person
exercising their choice to terminate the pregnancy. When there is fear or
apprehension in the mind of the RMP or the medical board it directly jeopardises
the fundamental freedoms of pregnant persons guaranteed under the
Constitution. 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.
24. In the present case, the medical board of the Grant Government Medical
College & Sir JJ Group of Hospitals, Mumbai had prepared a report dated 28
March 2024 stating that the pregnancy may be terminated in view of the physical
and mental health of ‘X’. The report however sought the permission of the High
Court since the gestational age of the fetus was above twenty four weeks, which
8
“IPC”
Page 13 of 22
is the permissible age for termination of pregnancy under the MTP Act. What is
inexplicable is the diametrically opposite view taken by the medical board in its
‘clarificatory’ opinion dated 3 April 2024. As we have noted above, the medical
board issued a clarification without re-examining ‘X’. Moreover, the opinion did
not elaborate on the change in circumstances which prompted the board to issue
a clarification on its earlier opinion.
25. From a perusal of the MTP Act, its statement of object and reasons as well
as the recommendation of the Shah Committee which examined the issue of
9
liberalising abortion laws in India, two clear postulates emerge as to the legislative
intent of the MTP Act. Firstly, the health of the woman is paramount. This includes
the risk avoided from the woman not availing unsafe and illegal methods of
abortion. Secondly, disallowing termination does not stop abortions, it only stops
safe and accessible abortions. 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. However, as
10
noticed above and by this Court in X v. State (NCT of Delhi) 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 April 2024 fell into this error by denying termination on the ground that the
9
Report of the Committee to Study the Question of Legislation of Abortion, Ministry of Health
and Family Planning, Government of India, dated December 1966.
10
(2023) 9 SCC 433
Page 14 of 22
gestational age of the fetus is above twenty-four weeks and there are no
congenital abnormalities in the fetus.
26. 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. This court in XYZ
11
v. State of Gujarat , 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. In light of the peculiar circumstances of that case
where the pregnancy was detrimental to the physical and mental health of the
pregnant person, this Court held that:
“ 10. We find that in the absence of even noticing the
aforesaid portion of the report, the High Court was
not right in simply holding that “the age of the foetus
is almost 27 weeks as on 17.08.2023 and considering
the statements made by the learned advocate for
the petitioner-victim and the averments made in the
application the petition for medical
termination of pregnancy stands rejected”, which, in
our view is ex facie contradictory...
…
19. The whole object of preferring a Writ Petition
under Article 226 of the Constitution of India is to
engage with the extraordinary discretionary
jurisdiction of the High Court in exercise of its
constitutional power. Such a power is vested with the
constitutional courts and discretion has to be
exercised judiciously and having regard to the
facts of the case and by taking into consideration
the relevant facts while leaving out irrelevant
considerations and not vice versa.”
11
2023 SCC OnLine SC 1573
Page 15 of 22
27. The powers vested under the Constitution in the High Court and this Court
allow them to enforce fundamental rights guaranteed under Part III of the
Constitution. When a person approaches the court for permission to terminate a
pregnancy, 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. 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.
28. 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. 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 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. In this case, the circumstance against which the provision is
Page 16 of 22
comparable is rape of a minor. To deny the same enabling provision of the law
would appear prima facie unreasonable and arbitrary. The value judgment of the
legislation does not appear to be based on scientific parameters but rather on a
notion that a substantially abnormal fetus will inflict the most aggravated form of
injury to the pregnant person. This formed the basis for this Court to exercise its
powers and allow the termination of pregnancy in its order dated 22 April 2024.
The provision is arguably suspect on the ground that it unreasonably alters the
autonomy of a person by classifying a substantially abnormal fetus differently than
instances such as incest or rape. This issue may be examined in an appropriate
proceeding should it become necessary.
29. Moreover, we are conscious of the fact that the decision to terminate
pregnancy is one which a person takes seriously. The guidelines to terminate
pregnancy as well as the scheme of the MTP Act show the seriousness attached
to the well-being of the pregnant person throughout the process envisaged under
the MTP Act. Change in the opinion of the medical board may cause undue
trauma and exertion to a pregnant person whose mental health is understandably
under distress. While we understand the need for a medical board to issue a
clarificatory opinion based on the facts and circumstances of each case, the
board must explain the reasons for the issuance of the clarification and, in
particular, if their opinion has changed from the earlier report. Pregnant persons
seeking termination of pregnancy seek predictability for their future. The
uncertainty caused by changing opinions of the medical board must therefore
balance the distress it would cause to the pregnant person by providing cogent
and sound reasons.
Page 17 of 22
30. The opinion of the pregnant person must be given primacy in evaluating
12
the foreseeable environment of the person under Section 3(3) of the MTP Act. In
13
Z v. State of Bihar , this Court found that the state authorities had failed in not
terminating the pregnancy before the passage of twenty weeks which was
permissible under the law. While a pregnancy beyond the statutory prescription
would require the intervention of a constitutional court, the vitality of time
sensitivity was recognised by this Court. ‘X’ was taken for termination of her
pregnancy at the gestational age of twenty-five weeks in the present case. The
passage of time in seeking the permission of this Court after being unsuccessful
before the High Court matured the gestational age of the fetus to almost twenty-
nine weeks. This increased the risk involved in ending the pregnancy of ‘X’
inducing the voluntary change of opinion by ‘X’ and her parents to take the
pregnancy to term.
31. This highlights 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. We therefore hold that the medical board
evaluating a pregnant person with a gestational age above twenty-four weeks
must opine on the physical and mental health of the person by furnishing full
details to the court.
12
X v. State (NCT of Delhi), (2023) 9 SCC 433.
13
(2018) 11 SCC 572
Page 18 of 22
Primacy of the pregnant person’s consent in abortion
32. As noted above, the order of this court allowing ‘X’ to terminate her
pregnancy is recalled. This decision is made in light of the decisional and bodily
autonomy of the pregnant person and her parents. 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.
33. As stated above, 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 guardians of ‘X’, namely her parents, have also consented for
taking the pregnancy to term. This is permissible as ‘X’ is a minor and the consent
of the guardian is prescribed under Section 3(4)(a) of the MTP Act.
14
34. In Suchita Srivastava v. Chandigarh Admn. , a three-judge Bench of this
Court has held that the right to make reproductive choices is a facet of Article 21
of the Constitution. Further, the consent of the pregnant person in matters of
reproductive choices and abortion is paramount. The purport of this Court’s
decision in Suchita Srivastava (supra) was to protect the right to abortion on a firm
footing as an intrinsic element of the fundamental rights to privacy, dignity and
bodily integrity as well as to reaffirm that matters of sexual and reproductive
choices belong to the individual alone. In rejecting the State’s jurisdiction as the
parens patriae of the pregnant person, this Court held that no entity, even if it is
14
(2009) 9 SCC 1
Page 19 of 22
the State, can speak on behalf of a pregnant person and usurp her consent. The
choice to continue pregnancy to term, regardless of the court having allowed
termination of the pregnancy, belongs to the individual alone.
35. In the present case the view of ‘X’ and her parents to take the pregnancy
to term are in tandem. The right to choose and reproductive freedom is a
fundamental right under Article 21 of the Constitution. Therefore, where the
opinion of a minor pregnant person differs from the guardian, the court must
regard the view of the pregnant person as an important factor while deciding the
termination of the pregnancy.
Conclusion
36. In the facts and circumstances of this case, we issue the following directions:
(i) The Sion hospital shall 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; and
(ii) In the event that the minor and her parents desire to give the child in
adoption after the delivery, the State Government shall take all
necessary steps in accordance with the applicable provisions of law to
facilitate this exercise. This shall not be construed as a direction of this
Court binding either the parents or the minor and the State shall abide
by the wishes as expressed at the appropriate stage.
Page 20 of 22
37. In light of the issues which arose before this Court we record our conclusions
as follows:
(i) The MTP Act protects the RMP and the medical boards when they
form an opinion in good faith as to the termination of pregnancy;
(ii) 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;
(iii) When issuing a clarificatory opinion the medical board must provide
sound and cogent reasons for any change in opinion and
circumstances; and
(iv) 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.
38. In view of the above, the appeal is disposed of. There shall be no order as
to costs.
Page 21 of 22
39. Pending application(s), if any, disposed of.
….…...…...….......………………….....…CJI.
[Dr Dhananjaya Y Chandrachud]
…….……...…...….......………………....…..J.
[J B Pardiwala]
…….……...…...….......………………....…..J.
[Manoj Misra]
New Delhi;
April 29, 2024.
Page 22 of 22