22 Sep 2009

SC on medical Termination of Pregnancy of Mentally Retarded Women: A blow on equity???

The difference between 'law' and 'equity' has traditionally been explained as equity supplementing the black-and-white letter of the law. Where law is silent, equity steps in and even where the law provides for a particular treatment of a particular situation, equity might step in to avoid harsh consequences. The traditional distinction between 'courts of law' and 'courts of equity' has been on this grounds only where the person not having a right under the notified cannons of law approached the courts of equity for relief. The things are different now as these courts have merged now and courts of law are expected to deliver their decisions taking note of the equitable concerns and reasonably estimating the consequences of their decisions. The consequences of this merger are for one to find.

A recent decision of the Supreme Court relating to medical termination of pregnancy of a mentally retarded child perhaps would throw some light on the continuing non-adoption of equitable concerns on judicial decisions. The case before the Supreme Court related to the challenge (in appeal) to a decision passed by the High Court of Punjab and Haryana. The Supreme Court reversed the decision of the High Court which had "ruled that it was in the best interests of a mentally retarded woman to undergo an abortion. The said woman ('victim') had become pregnant as a result of an alleged rape that took place while she was an inmate at a government-run welfare institution located in Chandigarh. After the discovery of her pregnancy, the Chandigarh Administration, which is the respondent in this case, had approached the High Court seeking approval for the termination of her pregnancy, keeping in mind that in addition to being mentally retarded she was also an orphan who did not have any parent or guardian to look after her or her prospective child. The High Court had the opportunity to peruse a preliminary medical opinion and chose to constitute an Expert Body consisting of medical experts and a judicial officer for the purpose of a more thorough inquiry into the facts. In its order the High Court framed a comprehensive set of questions that were to be answered by the Expert Body. In such cases, the presumption is that the findings of the Expert Body would be given due weightage in arriving at a decision. However, in its (subsequent) order the High Court directed the termination of the pregnancy in spite of the Expert Body's findings which show that the victim had expressed her willingness to bear a child."

Forbearing the considerations involved, the Supreme Court noted that; "The rationale behind our decision hinges on two broad considerations. The first consideration is whether it was correct on part of the High Court to direct the termination of pregnancy without the consent of the woman in question. This was the foremost issue since a plain reading of the relevant provision in the Medical Termination of Pregnancy Act, 1971 clearly indicates that consent is an essential condition for performing an abortion on a woman who has attained the age of majority and does not suffer from any `mental illness'. As will be explained below, there is a clear distinction between `mental illness' and `mental retardation' for the purpose of this statute. The second consideration before us is that even if the said woman was assumed to be mentally incapable of making an informed decision, what are the appropriate standards for a Court to exercise `Parens Patriae' jurisdiction? If the intent was to ascertain the `best interests' of the woman in question, it is our considered opinion that the direction for termination of pregnancy did not serve that objective. Of special importance is the fact that at the time of hearing, the woman had already been pregnant for more than 19 weeks and there is a medico-legal consensus that a late-term abortion can endanger the health of the woman who undergoes the same."

For starters, 'Parens Patriae' relates to the obligation cast on the nation/state to take due care of its citizens/subjects as a legal guardian of any individual who requires its support and where none is forthcoming from other quarters. 

Before the High Court, the recommendation of a three-member board constituted by the Director of a Government Medical College had been that in its opinion, taking note of the consequences of continuation of pregnancy and the capability of the victim to cope with the same, it was best advised to terminate the pregnancy. However the problem arose there was no clear statutory basis for proceeding with the abortion and thus the Government approached the High Court. 

Nonetheless the High Court, taking extra measures to ascertain the factual position, constituted another committee to examine the physiological and medical position of the girl to bear the child. The Committee clearly noted that even though "she knows that she is bearing a child and is keen to have one. However, she is unable to appreciate and understand the consequences of her own future and that of the child she is bearing." In these circumstances the High Court directed the termination of her pregnancy.

However, the Supreme Court held a different view. The judges noted that they "disagree with this conclusion since the victim had clearly expressed her willingness to bear a child. Her reproductive 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. We have adopted this position since the 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."


The Supreme Court took note of the provisions of the 'Medical Termination of Pregnancy Act' enacted by the Parliament and observed that "the ‘Best interests’ test requires the Court to ascertain the course of action which would serve the best interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court’s decision should be guided by the interests of the victim alone and not those of other stakeholders such as guardians or society in general. It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights." ... "The application of the ‘Substituted Judgment’ test requires the court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if she was competent to do so. This is a more complex inquiry but this test can only be applied to make decisions on behalf of persons who are conclusively shown to be mentally incompetent. In the present case the victim has been described as a person suffering from ‘mild mental retardation’. This does not mean that she is entirely incapable of making decisions for herself. The findings recorded by the Expert Body indicate that her mental age is close to that of a nine−year old child and that she is capable of learning through rote−memorisation and imitation. Even the preliminary medical opinion indicated that she had learnt to perform basic bodily functions and was capable of simple communications. In light of these findings, it is the ‘Best Interests’ test alone which should govern the inquiry in the present case and not the ‘Substituted Judgment’ test."

Thereupon the Court solely went by the factor that the alleged victim had shown interest in bearing the child and further that she had already been pregnant by 20 weeks by the time the matter was in Supreme Court, wherein termination of pregnancy may cause physical harm to her. The Court also referred to the famous decision of the United States Supreme Court in Roe v. Wade albeit on a different point than what it is famous for. The Court also did not see the medical experts in good light in as much as it observed that "while we must commend the counsel for their rigorous argumentation, this case also presents an opportunity to confront some social stereotypes and prejudices that operate to the detriment of mentally retarded persons. Without reference to the present proceedings, we must admit to the fact that even medical experts and judges are unconsciously susceptible to these prejudices."

The decision of the Court was also took note of the non-so-good condition of the government run institutions for the mentally challenged noting that "institutional upbringing tends to be associated with even more social stigma and the mentally retarded person is denied the opportunity to be exposed to the elements of routine living. For instance, if the victim in the present case had received the care of a family environment, her guardians would have probably made the efforts to train her to avoid unwelcome sexual acts. However, the victim in the present case is an orphan who has lived in an institutional setting all her life and she was in no position to understand or avoid the sexual activity that resulted in her pregnancy. The responsibility of course lies with the State and fact−situations such as those in the present case should alert all of us to the alarming need for improving the administration of the government−run welfare institutions."

While the High Court went beyond the provisions of law in exercise of its equity jurisdiction, the same did not find favour in the Supreme Court. The Supreme Court finally adopted what the law provided and declined to traverse the boundaries set forth by the Parliament. It concluded as under;


"The substantive questions posed before us were whether the victim’s pregnancy could be terminated even though she had expressed her willingness to bear a child and whether her ‘best interests’ would be served by such termination. As explained in the fore− mentioned discussion, our conclusion is that the victim’s pregnancy cannot be terminated without her consent and proceeding with the same would not have served her ‘best interests’. In our considered opinion, the language of the MTP Act clearly respects the personal autonomy of mentally retarded persons who are above the age of majority. Since none of the other statutory conditions have been met in this case, it is amply clear that we cannot permit a dilution of the requirement of consent for proceeding with a termination of pregnancy. We have also reasoned that proceeding with an abortion at such a late stage (19−20 weeks of gestation period) poses significant risks to the physical health of the victim. Lastly, we have urged the need to look beyond social prejudices in order to objectively decide whether a person who is in a condition of mild mental retardation can perform parental responsibilities."
In our opinion, perhaps the decision would be the correct appreciation of the Parliamentary law what is curious is that no account has been made for the child which would be born from such pregnancy. The Court may be right to hold that she has a right to bear the child but what happens when she is incapable of doing so? In such a situation, does the child-so-born also suffer being unable to receive the tender love and care of the mother? A lot of other questions also appear to an inquisitive mind, but in as much as we have this decision, these would be questions to which law does not have an answer excepting to oblige the Government to look after and thus the vicious circle of the so-called 'institutional care' continues.

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