Suchita Srivastava v. Chandigarh Administration

The matter pertained to a 19-20 year old, “mentally retarded”, woman (the victim) whose mental capacity was that of a nine year old. She was living in a welfare institution (the Institution) established by the Chandigarh Administration, having previously lived in a government institute for mentally retarded children. She became pregnant while living in the Institution. The victim was already nine weeks pregnant when it was noticed by the staff of the Institution. Subsequently a hospital in Chandigarh established a medical board (the Board), which recommended termination of the pregnancy, then into its eleventh week.

Consequently the High Court of Punjab and Haryana (the High Court) was moved to determine a statutory basis to implement the Board’s recommendation. The High Court sought recommendations from an expert body (the Expert Body), to determine what was in the best interest of the victim. The Expert Body recommended that even though the victim was “unable to appreciate and understand the consequences of her own future and that of the child”, her condition did not warrant termination of pregnancy. The High Court however directed the termination of the pregnancy.

The main point of law in the case was Section 3 of The Medical Termination of Pregnancy Act 1971 (the MTP Act). The section allows abortion under certain conditions. Apart from the consent of the woman, the conditions to be fulfilled are dependent on the stage of the pregnancy and the mental and physical health of primarily the mother and also the child.

Linking a woman’s reproductive right to her right to life and liberty under Article 21, the Court held that reproductive rights were a dimension of a woman’s liberty rights and her right to “privacy, dignity and bodily integrity” should be respected. A woman’s reproductive rights included her right to see the pregnancy to its full term

On the nature and scope of a woman’s reproductive right, the Court held that though a woman had full rights over her body, she only had a “qualified right to abortion.” According to the Court, this right was qualified since there was a “compelling state interest” in protecting the life of the prospective child. The MTP Act embodied the qualifications or reasonable restriction on the exercise of the right.

The Court also held that the victim was neither a minor nor did her condition of mental retardation warrant her consent to be negated and replaced by the State’s decision. It held that the MTP Act “clearly respects the personal autonomy of mentally retarded persons who are above the age of majority.” The Court disagreed with the High Court’s application of “substituted judgment test” under the common law doctrine of Parens Patriae. The Court held that in light of the findings of the Expert Body, the correct test to be applied was the “best interest test” since delay in mental development was not the same as mental incapacity. The Court further held that the High Court’s decision to have the pregnancy terminated was not in the best interest of the victim. Termination could have caused physical injury to the victim since the pregnancy was in its 19^th week and also mental agony since she had not consented to it.

Perusing through various legislations on mental disability, the Court held that there was a difference between mental retardation and mental illness. Under the MTP Act, a guardian can take decisions on behalf of a person with mental illness but not on behalf of a person in a condition of mental retardation. The Court held that consent of the woman being an essential requirement under the MTP Act, its dilution could not be allowed as that would “amount to an arbitrary and unreasonable restriction on the reproductive rights of the victim.”

To bolster its views on personal autonomy, mental retardation and the MTP Act, the Court referred to the United Nations Declaration on the Rights of Mentally Retarded Persons, 1971 where it is stated that mentally retarded persons have the “same rights as other human beings.” The Court also referred to the Convention on the Rights of Persons with Disabilities, 2007 the contents of which were binding on India.

“[R]eproductive 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…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.” – (2009) 14 SCR 989,  para. 10.

“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.” Para. 11.

“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… 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.” Para. 15.