Doctors need not disclose identity of minors seeking abortion: Takeaways from Supreme Court judgment
The Court held that in cases where minors seek termination of their pregnancy, Registered Medical Practitioners need not disclose the identity of the minor to police, even though the same is requ
In a significant judgment expanding and re-affirming the right to abortion, the Supreme Court on Thursday held that in cases where minors seek termination of their pregnancy, Registered Medical Practitioners (RMPs) need not disclose the identity of the minor to the police, as is mandated under the Protection of Children from Sexual Offences (POCSO) Act [X v The Principal Secretary Health and Family Welfare Department, Delhi NCT Government & Anr.].
A bench of Justices DY Chandrachud, AS Bopanna and JB Pardiwala noted that this requirement of the POCSO Act may deter minors from availing safe abortion, especially if the pregnancy was a result of a “consensual” sexual relationship.
Therefore, the Court held that, for the limited purpose of the Medical Termination of Pregnancy Act (MTP Act), if requested by the minor and their guardian, RMPs need not disclose the identity of the minor in the information provided to the police or in any criminal proceedings that may follow.
“For the limited purposes of providing medical termination of pregnancy in terms of the MTP Act, we clarify that the RMP, only on request of the minor and the guardian of the minor, need not disclose the identity and other personal details of the minor in the information PART E 50 provided under Section 19(1) of the POCSO Act. The RMP who has provided information under Section 19(1) of the POCSO Act (in reference to a minor seeking medical termination of a pregnancy under the MTP Act) is also exempt from disclosing the minor’s identity in any criminal proceedings which may follow from the RMP’s report under Section 19(1) of the POCSO Act,” the judgment stated.
At the very outset of the judgment, the Court also said that the use of the term “woman” in the judgment, includes not just cis-gender women but also persons of other gender identities who may require access to safe medical termination of their pregnancies.
Apart from the direction for RMPs with regard to minor pregnant persons, below are some of the significant points from the judgment in which the top court gave a purposive interpretation of the MTP Act:
- Married and unmarried/single women have equal status
The Court held that Rule 3B of the MTP Rules cannot be interpreted in a restrictive manner so as to deny right of abortion to unmarried woman beyond 20 weeks and doing so would be violative of Article 14 of the Constitution.
“If Rule 3B(c) was to be interpreted such that its benefits extended only to married women, it would perpetuate the stereotype and socially held notion that only married women indulge in sexual intercourse, and that consequently, the benefits in law ought to extend only to them. This artificial distinction between married and single women is not constitutionally sustainable…….The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes “permissible sex”, which create invidious classifications and excludes groups based on their personal circumstances,” the bench held.
- Marital rape falls within definition of ‘rape’ for purpose of MTP
The Court acknowledged the fact that intimate partner violence is a reality and when it goes as far as rape, it may result in unwanted pregnancy.
“It is not inconceivable that married women become pregnant as a result of their husbands having “raped” them. The nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry…It is only by a legal fiction that Exception 2 to Section 375 of the IPC removes marital rape from the ambit of rape, as defined in Section 375.”
Therefore, it held that for the purposes of MTP Act, marital rape has to be considered as falling within the meaning of ‘rape’ in order to save women from forceful pregnancy.
However, it clarified that it is not striking down Exception 2 to Section 375 of the IPC, especially since a challenge to said provision is pending before a different bench of the Court.
- RMPs must refrain from imposing extra-legal requirements; only woman’s consent required
The Court noted that RMPs often insist on compliance with conditions such as consent from the woman’s family, documentary proofs, or judicial authorisation. Observing that this only adds to the many barriers to safe abortion, the Court said that such requirements must not be imposed on women seeking safe abortion.
“It is only the woman’s consent (or her guardian’s consent if she is a minor or mentally ill) which is material. RMPs must refrain from imposing extra-legal conditions on women seeking to terminate their pregnancy in accordance with the law,” the bench underlined.
- Woman’s opinion should be given importance while evaluating “injury to mental health” under MTP Act
As per Section 3(2)(b) of the MTP Act, to avail an abortion, not less than two RMPs must be of the opinion that the continuation of the pregnancy would involve (i) a risk to the life of the woman; (ii) grave injury to her physical health; or (iii) grave injury to her mental health.
The Court stated that a woman’s environment and social, economic and cultural background must be taken into account when assessing the threat to mental health, giving significant weight to the woman’s own opinion.
“We are of the opinion that significant reliance ought to be placed on each woman’s own estimation of whether she is in a position to continue and carry to term her pregnancy,” the Court ruled.
- State must take steps to ensure right to reproductive autonomy and dignity for all citizens
The Court asserted that the decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman and stripping them of this right, is an affront to their dignity.
It then opined that reproductive rights also include in its ambit,
right to access education and information about contraception and sexual health;
right to decide whether and what type of contraceptives to use;
the right to choose whether and when to have children;
the right to choose the number of children;
the right to access safe and legal abortions;
and the right to reproductive healthcare.
“The MTP Act recognises the reproductive autonomy of every pregnant woman to choose medical intervention to terminate her pregnancy. Implicitly, this right also extends to a right of the pregnant woman to access healthcare facilities to attain the highest standard of sexual and reproductive health. It is meaningless to speak of the latter in the absence of the former.”
Therefore, the Court directed the state to ensure that the whole gamut of rights that make up reproductive rights are provided to all citizens, irrespective of region, religion, case, economic