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No MTP without consent even if woman is retarded: Supreme Court

Legal Correspondent

“Otherwise, it will amount to unreasonable curb on reproductive rights”


Right to reproductive choices is also dimension of ‘personal liberty’ under Article 21

There is a compelling state interest in protecting life of prospective child


New Delhi: Medical Termination of Pregnancy (MTP) cannot be done without the consent of the woman even if she is mentally retarded and not in a position to understand the consequences, the Supreme Court held on Friday.

A Bench consisting of Chief Justice K.G. Balakrishnan and Justices P. Sathasivam and B.S. Chauhan on July 21 stayed the MTP of a rape victim, staying in a home for the mentally challenged in Chandigarh, and said the reasons would be given later.

Writing the final order, the CJI said the MTP on a person found in a condition of borderline, mild or moderate mental retardation, “is anti-democratic and violative of the guarantee of ‘equal protection before the law’ as laid down in Article 14 of our Constitution.”

The Bench said: “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. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. 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.”

Her willingness

The Bench said: “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 congenital defects.”

The Bench noted that the MTP Act clearly indicated that consent was an essential condition for performing abortion on a woman, who had attained the age of majority and did not suffer from any ‘mental illness.’ None of the exceptions provided under the Act was applicable in the present case.

“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.”

Even if the said woman was assumed to be mentally incapable of making an informed decision, “if the intent was to ascertain the ‘best interests’ of the woman in question, it is our considered opinion that the direction [of the High Court] for termination of pregnancy did not serve that objective. There is also a compelling state interest in protecting the life of the prospective child.”

“Ensure proper care and supervision”

The Bench, quoting a decision of the Supreme Court of the United States and the principles contained in the United Nations Declaration on the Rights of Mentally Retarded Persons, held that her pregnancy could not be terminated.

It directed that the best medical facilities be made available to her by the Chandigarh Administration to ensure proper care and supervision during the period of pregnancy as well as for post-natal care.

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