Even if the said woman was assumed to be mentally incapable of making an informed decision, what are the appropriate standards for a Court to exercise`Parens Patriae' jurisdiction? If the intent was to ascertain the `best interests' of the woman in question, it is our considered opinion that the direction for termination of pregnancy did not serve that objective. Of special importance is the fact that at the time of hearing, the woman had already been pregnant for more than 19 weeks and there is a medico-legal consensus that a late-term abortion can endanger the health of the woman who undergoes the same.
Even though the Expert Body's findings were in favour of continuation of the pregnancy, the High Court decided to direct the termination of the same in its order dated 17.7.2009. We disagree with this conclusion since the victim had clearly expressed her willingness to bear a child. Her reproductive choice should be respected in spite of other factors such as the lack of understanding of the sexual act as well as apprehensions about her capacity to carry the pregnancy to its full term and the assumption of maternal responsibilities thereafter. We have adopted this position since the applicable statute clearly contemplates that even a woman who is found to be `mentally retarded' should give her consent for the termination of a pregnancy. In this regard we must stress upon the language of Section 3 of the Medical Termination of Pregnancy Act, 1971
In the case of pregnant women there is also a `compelling state interest'in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices.
In light of these findings, it is the `Best Interests' test alone which should govern the inquiry in the present case and not the `Substituted Judgment' test.
One immediate query could be whether the Court was correct in discussing at length the HC's June 9 judgment, when arguments were heard by the Supreme Court Bench only on the HC's June 17 judgment on whether the woman in question could continue her pregnancy. The June 9 judgment involved substantial questions, including the validity of the 2002 amendment to the MTP and whether a mentally retarded woman could give informed consent. Obviously, the Supreme Court has overruled the June 9 HC's judgment too.
Curiously, the SC has also pronounced on another issue,whether termination of pregnancy after 20 weeks would be correct. By defending the MTP's ban on abortions after 20 weeks, has the SC decided without hearing, another SLP before it?
(Readers are requested to use the MTP label to read our previous posts on the subject)