Why the Supreme Court used ‘pregnant person’ instead of ‘pregnant woman’ in a judgment

In a ruling last week, the Supreme Court noted that pregnancy can not only be experienced by a cisgender woman, but also by non-binary people and transgender men, among others. (A (Mother of X) v. State of Maharashtra and another).

While ruling in a case relating to termination of pregnancy of a 14-year-old minor girl, a Bench of Chief Justice of India DY ChandrachudJudges JB Pardiwala And Manoj Misra has clarified why it 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,” the Court said in a footnote.

The minor girl in this case became pregnant after being sexually abused. A medical board found that she was physically and mentally fit for a termination of pregnancy, subject to High Court approval. By the time she approached the Bombay High Court seeking annulment, she was over 27 weeks pregnant.

In another clarifying opinion, the medical board, without examining the girl, denied the termination of pregnancy on the grounds of the gestational age of the fetus and the absence of congenital abnormalities in the fetus. The High Court rejected the termination plea on the basis of the clarifying opinion.

On appeal, the Supreme Court ordered the medical board to re-examine the girl’s pregnancy. In its report, the board approved the abortion of the fetus and said continuing the pregnancy will adversely affect the physical and mental well-being of the girl. Accordingly, on April 22, the Supreme Court allowed the termination.

But by the time the girl’s parents came to a decision, the ultimate conclusion was that the minor girl’s health was now at stake due to the thirty-plus week pregnancy. Considering the parents’ interest in protecting their daughter’s health and the minor’s intention to deliver the fetus and then place it for adoption, the Supreme Court reversed its April 22 order.

The Court also emphasized that the Board’s clarification opinion before the Supreme Court failed to reach an opinion on the impact of pregnancy on the physical and mental health of the pregnant person as required under the Medical Termination of Pregnancy Act, 1971 (MTP). action).

“…the court relies for their medical expertise on the opinion of the medical board established under the MTP Act. The court would then apply their judicial opinion to the opinion of the medical board. Therefore, the medical board can not merely state that the The grounds of section 3(2-B) of the MTP Act have not been met. The exercise of the jurisdiction of the courts would be compromised if they did not have the benefit of the medical advice of the board regarding the risk this poses to the physical body and mental health of the pregnant person. Therefore, a medical board should examine the pregnant person and advise on the risk to their physical and mental health.”

In this light, the Court has issued the following instructions to medical councils:

(i) The MTP Act protects doctors and medical councils when they form an opinion in good faith about the termination of pregnancy;

(ii) The medical board, in forming its opinion on the termination of pregnancy, should not limit itself to the criteria of Section 3(2-B) MTP Act, but should also assess the physical and emotional well-being of the pregnant person in terms of judgement;

(iii) When issuing a clarifying opinion, the medical council must give reasonable and convincing reasons for any change in opinion and circumstances; And

(iv) A pregnant person’s consent in decisions regarding reproductive autonomy and termination of pregnancy is of paramount importance. If there is a difference of opinion between the opinion of a pregnant woman and her guardian, the opinion of the minor or mentally ill pregnant woman must be taken into account as an important aspect to enable the court to reach a just conclusion.

Advocate-on-Record Bharat Tyagi, advocates Shantanu M Adkar and Mustafa A Khan appeared for the appellant.

Additional Solicitor General Aishwarya Bhati, Advocate-on-Record Aaditya Aniruddha Pande and Advocates Akshaja Singh, Bharat Bagla, Sourav Singh, Aditya Krishna, Preet S Phanse, Adarsh ​​Dubey and Yamini Singh appeared for the respondents.