New Delhi : The Supreme Court has observed that in addition to cisgender women, pregnancy can also be experienced by non-binary people and transgender men, among other gender identities.
The observation was made by a three-judge bench led by Chief Justice of India D Y Chandrachud and comprising justices J B Pardiwala and Manoj Misra, in a judgment delivered on April 29, in which the court recalled its earlier order, which allowed the abortion of the 30-week pregnancy of a 14-year-old rape victim.
The apex court reversed its earlier order, allowing the minor to undergo abortion, after the parents of the minor expressed their desire to have the baby delivered in normal course. The parents said that there were concerns in connection with the safety of their daughter’s health, therefore they wish to keep the baby.
The CJI, who authored the judgment on behalf of the bench, clarified on why the apex court used the term 'pregnant person' instead of 'pregnant woman'.
"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," said the CJI, in a footnote in the judgment.
The apex court said: “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 CJI said 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”, he said.
The bench, recording its conclusions, said the Medical Termination of Pregnancy (MTP) Act protects the medical practitioner and the medical boards when they form an opinion in good faith as to the termination of pregnancy. “The medical board, in forming its opinion on the termination of pregnancies must not restrict itself to the criteria under Section 3(2-B) of the MTP Act but must also evaluate the physical and emotional well-being of the pregnant person in terms of the judgment”, said the bench.
It added that when issuing a clarificatory opinion the medical board must provide sound and cogent reasons for any change in opinion and circumstances. “The consent of a pregnant person in decisions of reproductive autonomy and termination of pregnancy is paramount. In case there is a divergence in the opinion of a pregnant person and her guardian, the opinion of the minor or mentally ill pregnant person must be taken into consideration as an important aspect in enabling the court to arrive at a just conclusion”, said the CJI.
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