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Updated: August 29, 2009 20:44 IST

No abortion without consent even if she is mentally retarded: Supreme Court

Legal Correspondent
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UPHOLDING REPRODUCTIVE RIGHTS: The Supreme Court on August 29, 2009, held that pregnancy cannot be terminated without the consent of a woman, even if she is mentally retarded.
The Hindu UPHOLDING REPRODUCTIVE RIGHTS: The Supreme Court on August 29, 2009, held that pregnancy cannot be terminated without the consent of a woman, even if she is mentally retarded.

Medical Termination of Pregnancy (MTP) cannot be done without the consent of a 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 mentally retarded woman, a victim of rape, 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 MTP on a person found to be 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 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.”

“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.”

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

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.”

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 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.

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

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

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The decision of the Court is no doubt appreciable and in the best interests of the society, yet the Court has left a question open, as to the competency of the mother to take the requisite care of the child.

from:  Payal
Posted on: Aug 31, 2009 at 21:31 IST

The court's decision is mature and commendable. On another note, what does the rape of this woman say about the Indian state's capacity to protect its most vulnerable citizens?

from:  Astitva
Posted on: Aug 30, 2009 at 19:58 IST

The usage of the phrase 'mentally retarded' is crude and reprehensible it would have been better if the article could avoid it.

from:  Philip
Posted on: Aug 29, 2009 at 21:13 IST
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