Pregnancy Can Also Be Experienced By Some Non-Binary People & Transgender Men: SC Judgment Uses The Term ‘Pregnant Person’ Instead Of ‘Pregnant Woman’

The Supreme Court, in its judgment, used the term ‘pregnant person’ instead of ‘pregnant woman’.

In the footnote, CJI DY Chandrachud, who authored the judgment in A (Mother of X) v. State of Maharashtra, noted thus:

“We use the term ‘pregnant person’ and recognize that in addition to cisgender women, pregnancy can also be experienced by some non-binary people and transgender men among other gender identities.”

The Court was deciding a civil appeal preferred by a mother of sexual assault victim against the judgment of the Bombay High Court which denied her minor daughter, the permission to terminate her pregnancy.

The three-Judge Bench comprising CJI D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra observed, “This highlights the need for giving primacy to the fundamental rights to reproductive autonomy, dignity and privacy of the pregnant person by the medical board and the courts. The delays caused by a change in the opinion of the medical board or the procedures of the court must not frustrate the fundamental rights of pregnant people. We therefore hold that the medical board evaluating a pregnant person with a gestational age above twenty-four weeks must opine on the physical and mental health of the person by furnishing full details to the court.”

The Bench also held that the opinion of the pregnant person must be given primacy in evaluating the foreseeable environment of the person under Section 3(3) of the Medical Termination of Pregnancy Act, 1971 (MTP Act).

Advocate Shantanu M. Adkar appeared for the appellant while Additional Solicitor General Aishwarya Bhati appeared for the respondents.

Factual Background -

X, a minor aged about 14 years was alleged to have been subjected to sexual assault in September 2023 and the incident did not come to the fore till she revealed the same in March 2024 by which time she was about 25 weeks into her pregnancy. She always had irregular periods and could not have assessed her pregnancy earlier. An FIR was registered against the alleged perpetrator for the offences under Section 376 of the Indian Penal Code (IPC) and Sections 4, 8 and 12 of the Protection of Children from Sexual Offences Act 2012 (POCSO Act).

The victim was then taken to the hospital in March for medical examination and the medical board opined that she was mentally and physically fit for termination of pregnancy subject to the permission of the High Court. Hence, she moved the High Court and after some days, the medical board issued a clarificatory opinion without examining the victim. Its report denied the termination of pregnancy on the ground that the gestational age of the foetus was 27-28 weeks and that there were no congenital abnormalities in the same. The High Court dismissed the victim’s writ petition and therefore, she approached the Apex Court.

The Supreme Court in view of the facts and circumstances of the case noted, “The powers vested under the Constitution in the High Court and this Court allow them to enforce fundamental rights guaranteed under Part III of the Constitution. When a person approaches the court for permission to terminate a pregnancy, the courts apply their mind to the case and make a decision to protect the physical and mental health of the pregnant person. In doing so the court relies on the opinion of the medical board constituted under the MTP Act for their medical expertise. The court would thereafter apply their judicial mind to the opinion of the medical board. Therefore, the medical board cannot merely state that the grounds under Section 3(2-B) of the MTP Act are not met.”

The Court enunciated that the role of the RMPs (Registered Medical Practitioners) and the medical board must be in a manner which allows the pregnant person to freely exercise their choice and, in the case, the guardians of ‘X’, namely her parents, have also consented for taking the pregnancy to term. It added by saying that this is permissible as ‘X’ is a minor and the consent of the guardian is prescribed under Section 3(4)(a) of the MTP Act.

“… the view of ‘X’ and her parents to take the pregnancy to term are in tandem. The right to choose and reproductive freedom is a fundamental right under Article 21 of the Constitution. Therefore, where the opinion of a minor pregnant person differs from the guardian, the court must regard the view of the pregnant person as an important factor while deciding the termination of the pregnancy”, it observed.

Accordingly, the Apex Court disposed of the appeal and directed the hospital to bear all the expenses in regard to the hospitalization of the victim and her delivery.

Cause Title- A (Mother of X) v. State of Maharashtra & Anr. (Neutral Citation: 2024 INSC 371)

Appearance:

Appellant: Advocate Shantanu M Adkar, AOR Bharti Tyagi, and Advocate Mustafa A Khan.

Respondents: ASG Aishwarya Bhati, Advocates Akshaja Singh, Siddharth Dharmadhikari, AOR Aaditya Aniruddha Pande, Advocates Bharat Bagla, Sourav Singh, Aditya Krishna, Preet S. Phanse, Adarsh Dubey, and Yamini Singh.

Click here to read/download the Judgment