Medical Board must examine pregnant person and opine on the aspect of risk to their physical and mental health: Supreme Court

New Delhi: Criticising the approach of the medical board of JJ hospital for declaring a minor rape survivor unfit for pregnancy termination of 28 weeks citing the absence of congenital abnormalities in the fetus, the Supreme Court observed that the report of the Medical Board had not dealt with the impact of the pregnancy on the physical and emotional well-being of the minor.  

"The MTP Act protects the RMP and the medical boards when they form an opinion in good faith as to the termination of pregnancy. 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," observed bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra.

This case pertains to the 14-year-old minor who was sexually assaulted in September 2023. However, the incident came to light on 20 March 2024 when she was about 25 weeks into her pregnancy. After her medical examination, she was transferred to the JJ Group of Hospitals, Mumbai for termination of her pregnancy.

Also read- An Exceptional Case: SC Allows 14-Year-Old Rape Survivor To Terminate 30-Week-Old Pregnancy

On 28 March 2024 the medical board of the Grant Government Medical College & Sir JJ Group of Hospitals, Mumbai constituted under the Medical Termination of Pregnancy Act 1971 opined that the minor was physically and mentally fit for termination of her pregnancy subject to the permission of the High Court.

On 3 April 2024, the medical board issued a ‘clarificatory’ opinion, without reexamining ‘X’. The report denied the termination of pregnancy on the ground of the gestational age of the foetus and the fact that there no substantial abnormalities that could affect the girl’s mental and physical health. Following this, the High Court dismissed the writ petition on the ground that the pregnancy exceeded the statutory period of twenty-four weeks.

In response to an appeal filed by the girl’s parents, the court on 22 April allowed termination of the pregnancy. Later, however, on being informed that the girl’s mother gave contradictory statements to the board of doctors that was asked to terminate the pregnancy, the top court re-heard the matter.

After a detailed personal deliberation with the parents, the bench on 29 April recalled its week-old order to allow the girl to carry on with her pregnancy. This was after the parents desired to give away the baby for adoption to their relatives.

Further, the bench recalled in X v. State (NCT of Delhi) that "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."

In its judgment, the bench observed "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 v. State of Gujarat,11 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.

Hence, the medical board must examine the pregnant person to give an absolute view on the aspect of the risk to a pregnant person’s physical and mental health, the court said.

"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," added the court. 

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 thinks 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 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 the notion that a substantially abnormal fetus will inflict the most aggravated form of injury to the pregnant person," added the court.

Further, the top court faulted the second medical board’s opinion for not favouring a medical termination, saying this kind of change “may cause undue trauma and exertion to a pregnant person whose mental health is understandably under distress”. If the medical board wants to clarify its earlier opinion, it must state its reasons.

The judgment also talks about the importance of a medical board’s opinion under MTP. The purpose of this opinion, it said, is to protect the health of a pregnant person, to facilitate a safe, hygienic, and legal abortion, and to enable the court to exercise its jurisdiction and decide a plea for termination effectively. The absence of a medical view would affect the court’s functioning when hearing petitions filed by those who seek abortion of their foetus beyond the gestation period, the bench observed.

“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,” the court said.

Therefore, a medical board’s opinion must not compromise a pregnant person’s fundamental right. 

In conclusion, the court said "When issuing a clarificatory opinion the medical board must provide sound and cogent reasons for any change in opinion and circumstances. The consent of a pregnant person in decisions of reproductive autonomy and termination of pregnancy is paramount. 

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." 

To view the court order click on the link below: 

Also read- SC Directs Medical Examination Of 14-Year-Old Rape Victim Seeking Termination Of 28-Week Pregnancy