No court can force minor to carry pregnancy against her will: Supreme Court

Observing that no court can force a woman, especially a minor, to carry a pregnancy against her will, the Supreme Court on Friday allowed a 15-year old girl to medically terminate her over seven-month pregnancy.

A bench of Justices BV Nagarathna and Ujjal Bhuyan said the choice of the pregnant woman is relevant rather than that of the child to be born and stressed that continuation of such a pregnancy could have long-lasting repercussions on the minor’s mental health, educational prospects, social standing and overall development.

The top 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.

“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. The right cannot be rendered ineffective by imposing unreasonable restrictions, especially in cases involving minors and unwanted pregnancies such as in the instant case.

“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 decision autonomy but also inflict grave mental, emotional and physical trauma in case she is compelled to give birth,” the bench said.

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 is a fundamental right.

The apex court said the choice of the pregnant woman is relevant rather than that of the child to be born.  “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, she must give birth to the child.

“That cannot be a consideration 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, therefore, 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.

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

The top 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.