SC allows 15-year-old to terminate 28-week pregnancy, affirms reproductive autonomy

The Supreme Court has observed that a pregnant woman’s control over her own body- reproductive autonomy- carries overriding weight, even in situations that fall outside the usual legal framework. In doing so, it permitted a 15-year-old girl to end a pregnancy that had already crossed 28 weeks.

The court further stated that constitutional courts should not take a prohibitory approach when moved by unintended mothers seeking termination of pregnancy.

The observation was made by a bench of Justices B V Nagarathna and Ujjal Bhuyan on April 24. The bench in its order further stated that the choice of the pregnant woman is more relevant than that of the child to be born.

Impact on minor’s life and health

It also said that the continuation of such a pregnancy could have long-lasting repercussions on the minor's mental health, educational prospects, social standing and overall development.

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The court remarked that the reproductive autonomy of a woman must be accorded the highest importance, and if a woman, carrying an unwanted pregnancy, is compelled to continue it, then her constitutional rights would be breached.

Right to bodily autonomy under Article 21

"The right to make decisions concerning one's body, particularly in matters of reproduction, is an integral facet of personal liberty and privacy under Article 21 of the Constitution of India. This right cannot be rendered ineffective by imposing unreasonable restrictions, especially in cases involving minors and unwanted pregnancies, such as in the instant case.

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"No court ought to compel any woman and more so, a minor child, to carry a pregnancy to full term against her express will. Such compulsion would not only disregard her decisional autonomy but could also inflict grave mental, emotional and physical trauma in case she is compelled to give birth," the bench said in an order passed on April 24.

Woman’s choice outweighs unborn child’s interest

In the circumstances, denying relief would compel the minor to endure irreversible consequences, and such an approach would be contrary to the constitutional and settled principles recognising reproductive choice as a fundamental right, the court pointed out.

It said the choice of the pregnant woman is relevant rather than that of the child to be born.

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"What is of relevance is the choice of the pregnant woman rather than the interest of an unborn child. It is easy to say that if the pregnant woman is not interested in raising the child, she may give away the child in adoption and therefore, must be compelled into giving birth to the child.

"However, that cannot be the correct approach, particularly, in cases where the child to be born is unwanted. In such a situation, directing the pregnant woman to give birth to the child against her wishes and to forcefully continue her pregnancy would negate the welfare of the pregnant woman and make it subordinate to the child yet to be born," the bench said.

‘Courts must weigh woman’s circumstances’

It said constitutional courts must weigh the circumstances in which a case, in relation to the welfare of a pregnant woman, has to be considered rather than a child to be born.

"The constitutional court ought to weigh all facts and circumstances from the lens of the party who intends to terminate the pregnancy and is willing to undertake the medical risks rather than directing completion of the pregnancy and giving birth to an unwanted child.

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"If the constitutional court states that even an unwanted pregnancy has to be continued, then instead of approaching the court for permission, parties then visit illegal abortion centres or secretly undergo termination of such a pregnancy which would make the pregnant woman more vulnerable and exposed to dangers," the bench said.

Warning against unsafe, illegal terminations

The court said a prohibitory approach will not be the cessation of late-term terminations, which will happen anyway, but only their displacement outside the law.

"Pregnant women may be driven to seek termination through unregulated means, often at a greater risk to their life and health. Thus, the unintended consequence of judicial reluctance to permit termination beyond the statutory period reinforces the very conditions that the Medical Termination of Pregnancy Act seeks to avoid, namely unsafe abortions," it said.

Role of constitutional courts beyond statute

The apex court said constitutional courts cannot overlook that parties approach them in such hard cases precisely because no effective statutory right is available.

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"The absence of a legal remedy under the MTP Act is the very reason for the court's jurisdiction being invoked in the first instance.

"Therefore, to refer mechanically to statutory limitations is to disregard the distinct role of the constitutional court in protecting individual rights even when no other statutory remedies exist. The effect of such an approach is to render the fundamental right to bodily autonomy nugatory," it said.

Termination permitted with safeguards

The court said the minor in this case is 15 years old and the pregnancy is unwanted and continuing the pregnancy is not in the interest of the pregnant minor, particularly when she has attempted to foreclose her life on two occasions.

"In the circumstances, we direct that the appellant's daughter (minor) is permitted to undergo medical termination of pregnancy. The appellant, on behalf of her minor child, shall furnish an undertaking consenting to the medical termination of pregnancy of her minor daughter.

"We direct that all medical safeguards shall be taken by the attending doctors, nurses and staff of the third respondent-AIIMS - where the procedure is to be conducted. We direct that aforesaid procedure shall be undertaken at the earliest," the bench said.

(With agency inputs)