Guardian nod not needed for abortion of a retarded woman: Supreme Court

The apex court has held that the fundamental concept relating to a woman's "bodily integrity" and "personal autonomy" have to be given due respect. 

A bench headed by Justice Dipak Misra awarded additional Rs 10 lakh compensation to a mildly mentally retarded destitute woman who was allegedly raped but not allowed to abort her 26-week pregnancy after a medical board's opinion that the abortion could risk her life. 

"The fundamental concept relating to bodily integrity, personal autonomy and sovereignty over her body have to be given requisite respect while taking the decision and the concept of consent by a guardian in the case of a major should not be over emphasised," the bench, also comprising Justices Amitava Roy and A M Khanwilkar, said. 

Referring to an earlier verdict of the Punjab and Haryana High Court, the bench said it was held that a guardian can take decisions on behalf of a "mentally ill person" as per provisions of the Medical Termination of Pregnancy (MTP) Act of 1971. 

It, however, said that the same cannot be done in the case of a person who is in a condition of "mental retardation" as there is a difference between the two conditions as per law. 

The apex court said that the MTP Act and the earlier judgement of the Punjab and Haryana High Court prominently emphasises on personal autonomy of a pregnant woman to abort. 

"In the case at hand, the appellant (woman) is a victim of rape. She suffers from mild mental retardation and she is administered psychiatry treatment, but she is in a position to express her consent. Under the statutory framework, she was entitled to give her consent for termination of pregnancy," the bench said. 

It, however, said that the legislature was aware of the concern and recently Parliament has passed the Mental Healthcare Act, 2017 which has received the assent of the President on April 7. 

Cautioning the hospitals for insisting on the consent of guardians, the bench said that it has to be borne in mind that the element of time was extremely significant in cases of pregnancy as each day mattered. 

"The hospitals should be absolutely careful and treating physicians should be well advised to conduct themselves with accentuated sensitivity so that the rights of a woman are not hindered," Justice Misra who wrote the judgement for the bench said. 

The apex court had on May 9 granted Rs three lakh compensation to the woman from the victim compensation scheme, after denying her nod to terminate her pregnancy medically. 

It said India has ratified the Convention on the Elimination of All Forms of Discrimination Against Women in 1993 and is under an international obligation to ensure that the woman's right in her reproductive choices is protected. 

"In the instant case, it is luminescent that the appellant has suffered grave injury to her mental health. The said injury is in continuance. It is a sad thing that despite the prompt attempt made by this Court to get her examined so that she need not undergo the anguish of bearing a child because she is a victim of rape, it could not be so done as the medical report clearly stated that there was risk to the life of the victim," the bench said. 

It said the continuance of injury created a dent in her mind and she was compelled to suffer it and "one may have courage or cultivate courage to face a situation, but the shock of rape is bound to chain and enslave her with the trauma she has faced and cataclysm that she has to go through". 

The bench said though her condition cannot be reversed, she has to be compensated so that she can live her life with dignity and the 'negligent authorities' would understand such lapses should not have been committed. 

It said that Rs 10 lakh compensation should be kept in a fixed deposit in her name so that she may enjoy the interest. 

"We have so directed as we want that the money to be properly kept and appropriately utilised. It may also be required for the child's future. That apart, it is directed, that the child to be born, shall be given proper treatment and nutrition by the State and if any medical aid is necessary, it shall also be provided," the apex court said. 

While setting aside the High Court order, the apex court said that it should have been more alive to the provisions of the Act and the necessity of consent only of the woman in the facts of the case. 

After being raped on a footpath in Patna, the destitute woman had come to know about her pregnancy for the first time around the 13th week, and that too after she was rescued by Shanti Kutir, a women's rehabilitation centre, and taken a pregnancy test on January 26 this year. 

The woman had expressed her desire to get her pregnancy terminated on March 4 to a research officer of Koshish, a Field Action Project of Tata Institute of Social Sciences, with whom she was in contact.