O R D E R
K.G. BALAKRISHNAN, CJI
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 in its order dated 9.6.2009 in C.W.P.
8760 of 2009
Expert Body's findings
(i)The mental condition of the retardee
She suffers from mild to moderate mental retardation
(ii) Her mental and physical condition and ability for self-
sustenance
A case of mild to moderate mental 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 distinction between the child born
out of and outside the wedlock as well as the social connotations
attached thereto.
As per her mental status, she is incapable of making the distinction
between a child born before or after marriage or outside the wedlock
and is unable to understand the social connotations attached
thereto.
(iv) Her capability to acknowledge the present and consequences of
her own future and that of the child she is bearing
She knows that she is bearing a child and is keen to have one.
However, she is 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 bear and raise a child
She is a young primigravida with 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 child and the role of an
ideal mother
She has grossly limited perception about bringing up a child and the
role of an ideal mother
(vii) Does she believe that she has been impregnated through
unvolunteered sex?
She has a limited understanding of the 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 account of the pregnancy
alleged to have been caused by way of rape/un-willing sex?
She has no particular emotions on account of the pregnancy alleged
to have 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 physical or mental health of
the victim on account of her present foreseeable environment?
Her internal environment of pregnancy does not pose any particular
risk of injury to the physical health of the victim. 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 undue influence through any
means on the decision-making capability of the victim?
Her mental state indicates high suggestibility because of her
reliance on rote memory and imitative behaviour for learning. Being
highly suggestible her decision-making can be easily influenced.
(xi) Do the overall surroundings provide reasonable space to the
victim to indulge in independent thinking process and take firm
decisions on the issues vital to her life prospects?
We are not familiar with her overall surroundings, hence unable to
comment.
(xii) What is the possible nature of the major spinal surgery
alleged to have been undergone by the victim during her childhood?
Does it directly or indirectly relate to the bony abnormalities of
the victim? Can such abnormalities have a genetic basis to be
inherited by the baby?
As per the neurosurgeon, spinal surgery during childhood could have
been due to neural tube defect or spinal cord tumour. This could
have been confirmed by MRI tests, but the same could not be carried
through as those were considered to be 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 complications like
chances of abortion, anaemia, hypertension, prematurity, low birth
weight baby, foetal distress including chances of anaesthetic
complications, if the victim in the present case is permitted to
carry on the pregnancy?
The possibility of complications like abortion, hypertension,
prematurity, low birth weight baby and foetal distress are similar
to any pregnancy in a woman of this age group.
Due to the spinal abnormality and gait 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 course to be followed in the best
interest of the victim?
Her physical status poses no major physical contraindications to
continue with 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.
.................................CJI
[ K.G. BALAKRISHNAN ]
....................................J.
[ P. SATHASIVAM ]
...................................J.
[ B.S. CHAUHAN ]
New Delhi;
August 28, 2009.
