Reproductive autonomy of mother-to-be must be accorded highest importance, says SC

 

Observing that the reproductive autonomy of a mother-to-be must be accorded the highest importance, the Supreme Court has allowed a 15-year-old girl to medically terminate her pregnancy of more than 28 weeks.

The top court has said when constitutional courts are approached by unintending mothers seeking termination of pregnancy, they ought not take a prohibitory approach.

A bench of Justices BV Nagarathna and Ujjal Bhuyan said the pregnant woman’s choice is relevant rather than that of the child to be born and stressed 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.

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.

“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.

“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.

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.

“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.

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.

“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.