Introduction 

• This is a landmark judgment which lays down that even a woman who is found to be ‘mentally retarded’ should give her consent for termination of pregnancy. 
• The Judgment was delivered by a 3- judge Bench consisting of Justice KG Balakrishnan, Justice P Sathasivam and Justice Dr. BS Chauhan 

Facts

• In the present case a mentally retarded orphan aged 19-20 years was pregnant. 
• She was sheltered in a government run welfare home and was found in the 19th week of pregnancy. 
• The respondent administration approached the High Court seeking approval for termination of pregnancy. 
• The High Court appointed an expert body which gave its findings that the victim was in mild to moderate mental retardation and that she expressed her willingness to bear a child. 
• The High Court directed termination of pregnancy.  
• Thus, the matter was before the Supreme Court. 

Issues Involved  

• Whether the victim's pregnancy could be terminated even though she had expressed her willingness to bear a child? 
• Whether her ‘best interests’ would be served by such termination? 

Observations 

• Right to make reproductive choices a part of Article 21 of Constitution of India, 1950 (COI): 
  • The Court observed that a woman’s right to make reproductive choices is a part of Article 21 of the COI. 
  • The Court however, observed that in case of a pregnant woman there is a ‘compelling State interest’ in protecting the life of the prospective child and the MTP Act, 1971. Therefore, termination of pregnancy is only allowed when the conditions mentioned in the MTP Act are fulfilled. 
  • Hence, MTP Act can be viewed as reasonable restriction that has been placed on the exercise of reproductive choices.  
• Consent of pregnant woman before termination: 
  • Section 3 (4) (b) of the MTP Act clearly lays down that obtaining consent of a woman is an essential condition for proceeding with the termination of her pregnancy. 
  • A dilution of the above requirement would amount to an arbitrary and unreasonable restriction on the reproductive rights of women. 
  • In case the pregnant woman is below eighteen years of age or mentally ill the pregnancy can be terminated if the guardian of the pregnant woman gives consent. 
• Mental illness and Mental retardation: 
  • It is to be noted that Section 2 (b) defines “mentally ill person” as a person who is in need of treatment by reason of mental disorder other than mental retardation. 
  • Thus, it is apparent from the definition that ‘mental illness’ is different from ‘mental retardation’. 
  • Therefore, the persons who are mentally ill must be treated differently from persons who are mentally retarded.  
  • While guardian can make a decision on behalf of a ‘mentally ill person’ as per Section 3 (4) (a), the same cannot be done on behalf of a person who is in a condition of ‘mental retardation’.  
  • The Court observed that the distinction between ‘mentally ill’ and ‘mentally retarded’ cannot be disregarded so as to interfere with the personal autonomy that has been accorded to mentally retarded persons for exercising their reproductive rights. 
• Doctrine of ‘Parens Patriae’: 
  • This doctrine has been evolved in common law and is applied in situations where the State must make decisions in order to protect the best interests of those persons who are unable to take care of themselves.  
  • Courts have developed two primary standards for exercising this doctrine: the 'best interests' test and the 'substituted judgment' test. 
  • The 'best interests' test requires the court to:  
    • Determine the most beneficial course of action for the individual. 
    • Carefully examine medical opinions about the feasibility of specific situations. 
    • Evaluate the social circumstances of the person. 
    • Make decisions solely based on the individual's interests. 
    • Disregard potential financial costs or societal considerations. 
  • The 'substituted judgment' test involves:  
    • The court attempting to make the decision the person would have made if they were mentally competent. 
    • This test is only applicable for individuals who are conclusively proven to be completely mentally incompetent. 
    • In cases of mild mental retardation, the 'best interests' test is more appropriate, as the individual is not entirely incapable of making decisions. 
    • The doctrine recognizes that individuals with borderline, mild, or moderate mental retardation:  
      • Can live in normal social conditions. 
      • May require some supervision and assistance. 
      • Should have their decisions respected to the greatest extent possible. 
    • The law emphasizes that developmental delays in mental intelligence should not be equated with complete mental incapacity, and legal decisions should preserve the individual's autonomy and dignity. 

Conclusion 

• The Court in this case finally held in favor of continuance of pregnancy. 
• This is because the applicable statute clearly contemplates that even a woman who is found to be ‘mentally retarded’ should give her consent for termination of pregnancy.