Consent to abort: Supreme Court in error? Law

The Indian Apex Court has ruled that a physically major and mentally minor girl, who has no concept of sexual intercourse, pregnancy or motherhood, has the right to decide whether or not she wants to give birth to a child conceived of rape.

Since under the Medical Termination of Pregnancy Act, 1971 (MTP Act) pregnancy cannot be terminated without express consent of the mother, the moot question was whether a mentally retarded woman is capable of consenting to the termination of pregnancy or not.

High Court of Punjab and Haryana had had an Expert Body to obtain an independent expert opinion on the issues in question. The Expert Body concluded that victim suffered from mild to moderate mental retardation, was “incapable of making the distinction between a child born before or after marriage or outside the wedlock” and was “unable to understand the social connotations attached thereto.”

Therefore, the victim is incapable of forming an opinion in the social context, which means the social acceptability or otherwise of the child has no relevance for her. A normal woman may undergo abortion solely on account of the social stigma. So, the woman in question is simply incapable of applying a decisive criterion that a normal woman in her circumstances is very likely to. The incapacity to take into account all relevant factors indicates that the victim’s willingness to deliver the baby is not an ‘informed decision’, and is, for that reason, deficient. And since, in this case, ‘willingness to deliver’ necessarily means ‘not consenting to abort’, it follows that the latter is also deficient. One could argue that if the victim was capable of fully understanding her circumstances, she would have elected to abort because that is what many – if not most – of the women would do in her situation.

Furthermore, the pregnancy in this case is not just outside wedlock but is a result of forced intercourse. Regarding the victim’s understanding of sexual act, the Expert Body concluded that:

She has a limited understanding of the sexual act and relationship and even the concept of getting pregnant. She did not volunteer for sex and did not like the sexual act.

Since she has limited understanding of the sexual act and pregnancy, she cannot possibly connect the rape and the pregnancy as cause and effect, which means she has no understanding of the true nature of her pregnancy itself, much less of its social connotations. This does not mean that on account of her mental retardation the rape was not as mentally devastating to her as it normally is. Just that in the victim’s mind the rape and the pregnancy are two distinct, unconnected events. Human conception of any event is incomplete and inadequate unless he has some idea of the cause. Furthermore, when it comes to children born of rapes, the ‘cause’ of pregnancy is the single most important factor that determines whether or not the victim consents to abortion. How far it weighs with the legislature in this regard is quite evident from Explanation 1 to Section 3 of the MTP Act, which reads as follows:

Explanation 1. − Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Therefore, in the opinion of the legislature pregnancies caused by rape fall in a class different and distinct from ‘unwanted pregnancies’ of other kinds, and the victims in such cases would in all probability want to undergo abortion on account of the cause of the pregnancy alone. But in this case the victim is incapable of factoring in the cause of pregnancy making her ‘willingness to deliver’ or ‘unwillingness to abort’ inherently deficient.

SCTherefore, if the Court was to step into the shoes of the victim employing the test of ‘Substituted Judgment’, it would have found ruling against abortion extremely difficult. However, the Court was of the opinion that it was not a fit case for the application of the abovementioned test for want of complete mental incapability on part of the victim. In this regard the Court observed:

The application of the ‘Substituted Judgment’ test requires the court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if she was competent to do so. This is a more complex inquiry but this test can only be applied to make decisions on behalf of persons who are conclusively shown to be mentally incompetent. In the present case the victim has been described as a person suffering from ‘mild mental retardation’. This does not mean that she is entirely incapable of making decisions for herself. The findings recorded by the Expert Body indicate that her mental age is close to that of a nine-year old child and that she is capable of learning through rote-memorisation and imitation. Even the preliminary medical opinion indicated that she had learnt to perform basic bodily functions and was capable of simple communications. 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.

The Court seems to have attached undue weight to the expression ‘mild mental retardation’ without considering that it is a relative expression incapable of quantifying retardation. She is not ‘mentally incompetent’. Understood. But that does not answer any relevant questions either. Simply because she has ‘learnt to perform basic bodily functions’ and is ‘capable of simple communications’ does not make her mentally competent to take a decision pertaining to unwanted pregnancy. She is mentally 9-years-old, and this is the only age relevant to the question of ‘consent’. Her physical age is of absolutely no consequence in this regard. So, the question actually is if a 9-year-old girl competent to ‘consent’ in law? Under the MTP Act the consent of a minor is irrelevant. In this case the Court could – and should – have acted as the guardian to decide on behalf of the victim. The rationale put forth by the Court against the use of ‘Substituted Judgment’ is, without doubt, severely inadequate.

This does not mean that no ‘mentally retarded’ woman is competent to ‘consent’. A 35-year-old woman whose mental age is around 20 years is competent to consent under the MTP Act despite being mentally retarded. So, mental retardation alone does not render someone incompetent to consent. This is where the distinction between ‘mental retardation’ and ‘mental illness’ becomes relevant under the MTP Act. The Court, after analyzing the distinction between the two expressions, concluded:

While a guardian can make decisions on behalf a ‘mentally ill person’ as per Section 3(4)(a) of the MTP Act, the same cannot be done on behalf of a person who is in a condition of ‘mental retardation’. The only reasonable conclusion that can be arrived at in this regard is that the State must respect the personal autonomy of a mentally retarded woman with regard to decisions about terminating a pregnancy.

This is not a very correct understanding of the legislative intent because, as discussed above, the distinction between ‘mental retardation’ and ‘mental illness’ exists simply because if one’s mental retardation does not render one incapable of consenting to an abortion, the woman’s being mentally retarded has no bearing on the issue at all. And if one’s mental retardation makes one incapable of ‘consent’ for want of mental maturity, one would automatically be treated as a minor and the consent of the guardian would be necessarily required. The issue of ‘personal autonomy of a mentally retarded woman’ does not arise because the ‘mentally retarded’, so long as they are capable of making an informed reproductive choice, do not make a distinct class for the purpose of the MTP Act, as they stand in the same position as any normal person despite their mental retardation.

The other two factors that weighed with the Court were that the victim was very willing to give birth and was physically capable of delivering the baby. Both of these factors are irrelevant in the present case, as the victim is mentally a minor. A girl of around 15 years of age, born, brought up and educated in a modern day metropolis is physically capable of giving birth and may also be willing to do so with a far better understanding of the nature of her pregnancy and the consequences of delivering and aborting compared to the victim in the present case. However, no amount of willingness and physical ability to give birth would be able to substitute the legal necessity of the competence to consent.

The Court also said:

It can also be reasoned that while the explicit consent of the woman in question is not a necessary condition for continuing the pregnancy, the MTP Act clearly lays down that obtaining the consent of the pregnant woman is indeed an essential condition for proceeding with the termination of a pregnancy.

Incapacity to consent works both ways. The one incapable of consenting to abortion is necessarily incapable of ‘consenting’ to giving birth because ‘consent’ implies the ability to choose consciously. So, if one is only capable of saying ‘yes’ and not ‘no’, the ‘yes’ is meaningless.

Since the victim in this case was demonstrably incapable of making an informed decision, there was no way the Court could avoid employing ‘Substituted Judgment’ to decide if a normal woman in the circumstances of the victim would choose to abort or keep the baby. The Supreme Court could have decided against abortion in this case for any reason other than ‘lack of consent’ to abort, which is where it seems to have made a grave error.

Originally written for and published in LAWYERS UPDATE [November 2009 Issue; Vol. XV, Part 11]

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