In a ruling last week, the Supreme Court indicated that in addition to cisgender women, non-binary individuals, and transgender men can also become pregnant, among other gender identities.
Chief Justice of India, DY Chandrachud, Justices JB Pardiwala and Manoj Misra’s bench clarified why it used the word “pregnant person” rather than “pregnant woman” while resolving a case concerning the termination of a 14-year-old underage girl’s pregnancy in Maharashtra.
“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 stated in a footnote while delivering the judgment.
The young girl in this instance was sexually abused resulting in her pregnancy. She was deemed physically and mentally fit for a pregnancy termination by a medical board, subject to the High Court’s approval. She was more than 27 weeks pregnant when she filed a termination request with the Bombay High Court.
In a subsequent clarifying opinion, the medical board rejected the termination of the pregnancy because the baby was not congenitally defective and had not yet reached full term without viewing the girl. By using the clarifying opinion, the High Court rejected the termination plea.
Following an appeal, the Supreme Court ordered the medical board to reevaluate the girl’s pregnancy. The board reported that it was in favour of terminating the fetus and that the girl’s physical and mental health would suffer if the pregnancy went on. As a result, the Supreme Court had approved the termination on April 22.
But by the time the girl’s parents made a choice, they had concluded that the girl’s health was now in jeopardy because of the pregnancy, which was more than 30 weeks old. The top court reaffirmed its April 22 ruling, taking into account the minor’s plan to give birth to the fetus and subsequently offer it for adoption, as well as the parents’ desire to protect their daughter’s health.
The Court further pointed out that, in violation of the Medical Termination of Pregnancy Act, 1971 (MTP Act), the board’s clarificatory opinion before the High Court did not express a view on how the pregnancy would affect the expectant mother’s physical and mental health.
“This highlights the need for giving primacy to the fundamental rights to reproductive autonomy, dignity, and privacy of the pregnant person by the medical board and the courts. The delays caused by a change in the opinion of the medical board or the procedures of the court must not frustrate the fundamental rights of pregnant people. 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 court noted.
The Court has also issued guidelines to medical boards regarding the termination of pregnancy, emphasizing the protection of practitioners and medical boards when forming an opinion in good faith as to the termination of pregnancy. The board must evaluate the pregnant person’s physical and emotional well-being, provide reasons for changes, and consider the consent of the pregnant person in decisions regarding reproductive autonomy and termination, the court further suggested.
