Holding

Termination of pregnancy cannot be ordered without the consent of a mentally retarded woman who is above the age of majority, and the High Court’s direction was not in her best interests.

Summary

The case concerned a 19‑20‑year‑old woman with mild to moderate mental retardation, an orphan residing in a government welfare home, who became pregnant around the 19th week of gestation after an alleged rape. The Chandigarh Administration sought the High Court’s approval to terminate the pregnancy, invoking the Medical Termination of Pregnancy (MTP) Act, 1971. The High Court, after appointing an expert panel, directed termination despite the woman’s expressed willingness to bear the child. On appeal, the Supreme Court examined whether the MTP Act permits termination without the woman’s consent, the applicability of the ‘best interests’ test under the doctrine of Parens Patriae, and the distinction between ‘mentally ill’ and ‘mentally retarded’ persons. The Court held that the statute requires the consent of a mentally retarded woman who is an adult, that the State cannot act as her guardian for termination, and that the High Court’s order was not in her best interests. Consequently, the termination was barred and the court directed provision of medical and post‑natal care.

Issues considered

Whether a pregnancy of a mentally retarded woman can be terminated without her consent under the MTP Act, 1971.
Whether the State can act as guardian for an adult mentally retarded woman for the purpose of terminating pregnancy.
Whether the termination would be in the 'best interests' of the woman under the doctrine of Parens Patriae.
Interpretation of the terms 'mentally ill' versus 'mentally retarded' in the MTP Act.
Applicability of the 'best interests' test versus the 'substituted judgment' test in this context.

Legislation cited

Constitution of Indias. Article 21
Indian Penal Code, 1860s. 1208, s. 376
Medical Termination of Pregnancy Act, 1971s. 2(b), s. 3(2), s. 3(4)(a), s. 3(4)(b), s. 5(1)
National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995s. 2(i), s. 2(q), s. 2(r)

Subjects

reproductive rightsmedical termination of pregnancymental retardationconsentbest interests testparens patriaepersonal libertydisability lawArticle 21

Judgment

[2009] 13 (ADDL.) S.C.R. 989

~ SUCHITA SRIVASTAVA & ANR. A
v.
CHANDIGARH ADMINISTRATION
(Civil Appeal No.5845 of 2009)

AUGUST 28, 2009
B
[K.G. BALAKRISHNAN, CJI., P. SATHASIVAM AND DR.
-.( B.S. CHAUHAN, JJ.]
\"
MEDICAL TERM/NATION OF PREGNANCY ACT,
1971: c
ss. 3(4)(a) and (b)- Termination of pregnancy by medical
practitioners in certain cases - Mentally retarded orphan in
a Government run welfare home -Found pregnant - Petition
_;, by administration seeking approval to terminate the
D
pregnancy- Report of expert body that the ~rphan was in mild
-r to moderate mental retardation and was willing to bear a child
- High Court granting approval to terminate the pregnancy -
Held: The statute clearly contemplates that even a mentally
retarded woman should give her consent for termination of the
pregnancy - State must respect personal autonomy of a E
mentally retarded woman with regard to decisions about
:(
terminating a pregnancy - A woman's right to make
reproductive choices is also a dimension of 'personal liberty'
;.. under Article 21 of the Constitution - In view of the findings
of expert body in favour of continuation of the pregnancy, the F
· direction given by High Court to terminate the pregnancy was
not in victim's 'best interests' - It is directed that the bes(
medical facilities be made available to the victim so as to
ensure proper care and supervision during the period of
pregnancy as well as for post natal care - Constitution of
G
India, 1950 - Article 21 - United Nations Declaration on the
Rights of Mentally Retarded Persons, 1971 - Principle 7.

ss.2(b) and 3(4)(a) - 'Mentally ill person' - Held: Is
different from a person who is in mental retardation ....
989 H
990 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A, Legislative provisions clearly show that persons who are in a
condition of mental retardation should ordinarily be treated
differently from those who are mentally ill - Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 - ss.2(i), (q) and (r).
B
s. 3(4)(a) - Consent of guardian for terminating
pregnancy of a minor/mentally ill person - HELD: While a
guardian can make decisions on behalf of a 'mentally ill
person' the same cannot be done on behalf of a 'mentally
retarded person' - Besides, considering the distinct standards,
C namely 'best interests' and 'substituted judgment test' and the
doctrine of 'Parens Patriae~ in the instant case, 'best interests'·
standard would be applicable and keeping in view the 'best
interests' of the victim,· termination of pregnancy would not
serve the objective - Doctrine of 'Parens Patriae' - Best
D ~interests' and 'substituted judgment' tests.

WORDS AND PHRASES:

Expression 'mental illness' and 'mental retardation' -
Distinction between in the context of Medical Termination of
E Pregnancy Act.
A mentally retarded orphan aged 19-20 years,
sheltered in a governme·nt-run welfare home, was found
·in the 19th week of pregnancy. The respondent
F Administration approached the High court seeking its
approval for termination of the 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.
However, the High Court directed termination of the
G pregnancy.

In the instant appeal, the questions for consideration
before the Court were: (i) whether the victim's pregnancy
could b~ terminated even though she had expressed her
H willingness to bear a child and (ii) whether her 'best
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH 991
ADMINISTRATION

....._. interests' would be served by such termination. A

Disposing of the appeal, the Court
HELD: 1.1. State must respect the personal
autonomy of a mentally retarded woman with regard to
decisions about terminating a pregnancy. A woman's B
right to make reproductive choices is also a dimension
of 'personal liberty' as understood under Article 21 of the
Constitution of India. It is important to recognise that
reproductive choices can be exercised to procreate as
well as to abstain from procreating. The crucial C
consideration is that a woman's right to privacy, dignity
and bodily integrity should be respected. [Para 11 and 15]
[1008-G-H; 1011-G-H]
1.2. Section 3(4)(b) of the Medical Termination of
Pregnancy Act, 1971 clearly lays down that obtaining the D
consent of the pregnant woman is indeed an essential
condition for proceeding with the termination of her
pregnancy. A dilution of this requirement of consent
cannot be permitted since the same would amount to an
arbitrary and unreasonable restriction on the E
reproductive rights of the victim. Section 3 of MPT Act
makes it clear that ordinarily a pregnancy can be
)( terminated only in terms of the said section. When the
pregnant woman is below eighteen years of age or is a
'mentally ill' person, the pregnancy can be terminated if F
the guardian of the pregnant woman gives consent for
the same. [Para 12] [1009-G-H; 1010-A-B]

1.3. It is apparent from the definition of the
expression 'mentally ill person', as provided in s.2(b) of
MTP Act, that 'mental illness' is different from 'mental G
retardation'. A similar distinction can also be found in the
provisions of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation)
Act, 1995. Clause (i) of s.2 of the said Act while defining
'disability' categorises 'mental retardation' differently H
992 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A than 'mental illness'; and further, clause (q) of s.2 defines _........._
'mental illness' whereas clause (r) thereof defines 'mental
retardation' distinctly. Thus, the legislative provisions
clearly show that persons who are in a condition of
'mental retardation' should ordinarily be treated
B differently from those who are found to be 'mentally ill'.
While a guardian can make decisions on behalf a
'mentally ill person' as per s.3(4)(a) of the MTP Act, the
same cannot be done on behalf of a person who is in a 'f-
condition of 'mental retardation'. [Para 14 and 15] (1011- -f

A-F]
c
1.4. While the distinction between the statutory
categories of 'mentally ill' and 'mentally retarded' can be
collapsed for the purpose of provjding affirmative action
in public employment and education as well as for
-D implementing discrimination measures and empowering .\--
the respective classes of persons, the same distinction ,.....
cannot be disregarded so as to interfere with the
personal autonomy that has been accorded to mentally ~
retarded persons for exercising their reproductive rights.
(Para 16] (1012-E-G]
E
1.5. 1n 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 x
pregnancy is only permitted when the conditions ~

F specified in the applicable statute have been fulfilled.
Thus, the provisions of the MTP Act, 1971 can also be
viewed as reasonable restrictions that have been placed
--
on the exercise of reproductive choices. [Para 11) [1009 ..
C-0) •
G 1.6. The principles contained in the United Nations
Declaration on the Rights of Mentally Retarded Persons,
1971 (G.A. Res. 2856 (XXVI) of 20 December, 1971), and r ..... >

specially Principle 7, prescribe that a fair procedure
should be used for the 'restriction or denial' of the rights
H guaranteed to mentally retarded persons, which should
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH 993
ADMINISTRATION

ordinarily be the same as those given to other human A
beings. While respecting the personal autonomy of
mentally retarded persons with regard to the
reproductive choice of continuing or terminating a
pregnancy, the MTP Act lays down such a procedure. It
is also significant to note that India has ratified the B•
Convention on the Rights of Persons with Disabilities on
October 1, 2007 and the contents of the same are binding
\ on our legal system. [Paras 25 and 26] [1017-0-E; 1018-
F-H]
2.1. The doctrine of 'Parens Patriae' has been evolved C
in common law and is applied in situations where the
State must make decisions in order to protect the
interests of those persons who are unable to take care
of themselves. Courts in other common law jurisdictions
have developed two distinct standards, namely, the 'best c
interests' test and the 'substituted judgment' test. The
'best interests' test requires the court to ascertain the
course of action which would serve the best interests of
the person in question. In the context of the instant case,
this means that the court must undertake a careful E:
inquiry of the medical opinion on the feasibility of the
pregnancy as well as social circumstances faced by the
victim. It is important to note that the court's decision
should be guided by the interests of the victim alone and
not those of other stakeholders such as guardians or
society in general. It is evident that the woman in question f"'
will need care and assistance which will in turn entail
some costs. However, that cannot be a ground .for
denying the e~ercise of reproductive rights. [Para 18 and
19] [1013-C-H]
(
2.2. 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 test can only ~
994 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.

~
A be applied to make decisions on behalf of persons who
are conclusively shown to be mentally incompetent. In
the. instaht 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
B 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
c communications. In light of these findings, it is the 'best
interests' test alone which should govern the inquiry In
the instant case and not the 'substituted judgment' test.
[Para 20] [1014-A-D].
~
D .. 2.3. Besides, persons with borderline mild or
.,.__.
moderate mental retardation are capable of living in
normal social conditions even though they may need
some supervision and assistance from time to time. A '
developmental delay in mental intelligence should not be
equated with mental incapacity and as far as possible the
E
law should respect the decisions made by persons who
are found to be in a state of mild to moderate 'mental
retardation'. [Para 21] [1014-F-G] ~

·~
3.1. In the instant case, the victim has expressed her
IF willingness to carry the pregnancy till its full term and •
bear a child. As per the findings of the expert body, the
victim is physically capable of continuing with the
pregnancy and the possible risks to her physical health
are similar to those of any other expecting mother. There
""
..;J
is also no indication that the prospective child may be
born with any congenital defects. At the time of the order
dated 17.7.2009 passed by the High Court, the victim ttad {'
already been pregnant for almost 19 weeks. By the time
the matter was heard by this Court on an urgent basis
on 21.7.2009, the statutory limit for terminating a
-I
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH 995
ADMINISTRATION
pregnancy, i.e. 20 weeks, was fast approaching. There is A
~- a clear medical consensus that an abortion performed
during the later stages of a pregnancy is very likely to
cause harm to the physical health of the woman who
undergoes the same. [Para 22 and 23] [1014-H; 1015-A-
C-F-G] 8
Roe v. Wade, 410 US 113 (1973), referred to.
3.2. In view of the fact that the expert body's findings
were in favour of continuation of the pregnancy and that
the victim had clearly expressed her willingness to bear
a child, the High Court erred in directing termination of
c
the same. This is because 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. Thus, the direction given by
the High Court in jts order dated 17.7.2009 to terminate D
"'...,. the victim's pregnancy was not in pursuance of her 'be$t
interests'. Performing an abortion at such a late-stage
· could have endangered the victims' physical health and
the same could have also caused further mental anguish
to the victim since she had not ~onsented to such a E
procedure. [Para 10 and 24] [1006-G-H; 1007-A-B; 1011-
A-BJ
'X United Nations Declaration on the Rights of Mentally
Retarded Persons, 1971 [G.A. Res. 2856 (XXVI) of 20
r- ' December, 1971; Convention on the Rights of Persons with
Disabilities (CRPD) and 'Whose Egg is it anyway?
F

Reproductive Rights of Incarcerated, Institutionalized and
Incompetent Women', 13 Nova Law Review 405-456
(November 1989) by Susan Stefan, referred to.
G
4.1. It would also be proper to emphasize that
persons who are found to be in a condition of borderline,
~
l mild or moderate mental retardation are capable of being
good parents. Therefore, it is important to evaluate each ·
case in a thorough manner with· due weightage being
given to medical opinion for deciding whether a mentally H
996 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

A retarded person is capable of performing parental 4
responsibilities. [Para 28] [1019-F-G; 1020-8-D]
'Sterilization of Mentally Retarded Persons: Reproductive
Rights and Family Privacy', Duke Law Journal 806-865
(November 1986) by Elizabeth C. Scott, referred to.
B
4.2. As regards victim's mental capacity to cope with
the demands of carrying the pregnancy to its full term,
the act of delivering a child and subsequent childcare, it 'f-
is directed that the best medical facilities be made -1

c available so as to ensure proper care and supervision
during the period of pregnancy as well as for post-natal
care. Since there is an apprehension that the woman in
question may find it difficult to cope with maternal
responsibilities, the Chairperson of the National Trust for
Welfare of Persons with Autism, Cerebral Palsy, Mental
D Retardation and Multiple Disabilities constituted under ).;-
the similarly named 1999 Act has stated in an affidavit that 't""-
the said Trust is in coordination with Chandigarh
Administration and PGIMER, Chandigarh, and is prepared
to look after the interests of the woman in question which
E will include assistance with childcare. If any grievances
arise with respect to the same subject matter in the future,
the respondent can seek directions from the High Court
of Punjab and Haryana under its writ jurisdiction. [Para ~
31] [1021-C-G]
'~
F CIVIL APPELLATE JURISDICTION : Civil Appeal No. ..,
5845 of 2009.
From the Judgment & Order dated 9.6.2009 and
17. 7.2009 of the High Court of Punjab & Haryana at
G Chandigarh in CWP No. 8760 of 2009.
Colin Gonsalves, Tanu Bedi, D.P. Singh, Sanjay Jain,
Suchita Srivastava, Kamini Jaiswal, Anupam Gupta, Ashish
Rawal for the appearing parties.
r
H The following order of the Court was delivered by
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH 997
ADMINISTRATION

~~
ORDER A

K.G. BALAKRISHNAN, CJI. 1. Leave granted.

2. A Division Bench of the High Court of Punjab and
Haryana in C.W.P. No. 8760 of 2009, by orders dated 9.6.2009
and 17.7.2009, ruled that it was in the best interests of a B
mentally retarded woman to undergo an abortion. The said
woman (name withheld, hereinafter 'victim') had become
-¥
\- pregnant as a result of an alleged rape that took place while
she was an inmate at a government-run welfare institution
located in Chandigarh. After the discovery of her pregnancy, c
the Chandigarh Administration, which is the respondent in this
case, had approached the High Court seeking approval for the
termination of her pregnancy, keeping in mind that in addition
! to being mentally retarded she was also an orphan who did not
have any parent or guardian to look after her or her prospective D
""'......, child. The High Court had the opportunity to peruse a
preliminary medical opinion and chose to constitute an Expert
Body consisting of medical experts and a judicial officer for the
purpose of a more thorough inquiry into the facts. In its order
dated 9.6.2009, the High Court framed a comprehensive set
of questions that were to be answered by the Expert Body. In E
such cases, the presumption is that the findings of the Expert
Body would be given due weightage in arriving at a decision.
)'
However, in its order dated 17.7.2009 the High Court directed
, the termination of the pregnancy in spite of the Expert Body's
findings which show that the victim had expressed her F
willingness to bear a child.

3. Aggrieved by these orders, the appellants moved this
Court and the second appellant - Ms. Tanu Bedi, Adv.
appeared in person on 20.7.2009 and sought a hearing on an
urgent ba5's because the woman in question had been G
pregnant for more than 19 weeks at that point of time. We
~ agreed to the same since the statutory limit for permitting the
termination of a pregnancy, i.e. 20 weeks was fast
approaching. We issued notice to the Chandigarh
H
998 SUPREME COURT REPORT~ [2009] 13 (ADDL.) S.C.R.

A Administration, pursuant to which Mr. Anupam Gupta, Adv. ~
appeared before us and made oral submissions on behalf of
the respondent. In the regular hearing held on 21.7.2009, both
sides presenting compelling reasons in support of their
respective stands. Mr. Colin Gonsalves, Sr. Adv. also appeared
B on behalf of an intervenor in support of the Chandigarh
Administration's stand. After hearing the counsel at length we
had also considered the opinions of some of the medical
experts who had previously examined the woman in question. y-
Subsequent to the oral submissions made by the counsel ~nd -f

the medical experts, we had granted a stay on the High Cpurt's
c orders thereby ruling against the termination of the pregnancy.

4. The rationale behind our decision hinges on two broad
considerations. The first consideration is whether it was correct
on part of the High Court to direct the termination of pregnancy
D without the consent of the woman in question. This was the ~
foremost issue since a plain reading of the relevant. provision ~

in the Medical Termination of Pregnancy Act, 1971 .clearly
indicates that consent is an essential condition for performing
an abortion on a woman who has attained the age of majority
and does not suffer from any 'mental illness'. As will be
E
explained below, there is a clear distinction between 'mental
illness' and 'mental retardation' for the purpose of this statute. ~

The second consideration before us is that even if the said ~
woman was assumed to be mentally incapable of making an
informed decision, what are the appropriate standards for a
F 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
G 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. r
5. Before explaining both of the above-mentioned
considerations at length, it will be useful to present an overview
H
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH 999
ADMINISTRATION [K.G. BALAKRISHNAN, CJI.]

of the fact-situation which led to the present proceeding. The A
+-- woman in question is an orphan who had been abandoned by
her parents at an early age and subsequently she had been
under the guardianship of the Missionaries of Charity, New
Delhi. Thereafter, she had been admitted in the Government
Institute for Mentally Retarded Children located in Sector 32, B
Chandigarh and was later on brought to the 'Nari Niketan' a
welfare institution in Sector 26, Chandigarh. On 13.3.2009, she
was shifted to 'Ashreya' - a newly established welfare
~
\ institution. Both 'Nari Niketan' and 'Ashreya' are government-
run institutions run by the Chandigarh Administration which fall
under the administrative control of the Director, Social Welfare c
and the Director-Principal, Government Medical College and
Hospital (GMCH), Sector 32, Chandigarh respectively.

~
6. On 16.5.2009, a medical social worker and a staff nurse
working at 'Ashreya' observed that the victim was showing D
.,;..
signs of nausea and had complained about pain in her lower
.....,. abdomen in addition to disclosing the fact that she had missed
her last two menstrual periods. Acting on their own initiative,
the medical social worker and the staff nurse conducted a
pregnancy test with a urine sample and found it to be positive.
E
Following this development, a medical board consisting of two
gynaecologists and a radiologist was constituted on 18.5.2009.
The gynaecologists then examined the victim in a clinical
)' environment and concluded that she had been pregnant for 8-
10 weeks at the time. The radiologist also confirmed the fact
' of pregnancy on the basis of an ultrasound examination and
recorded a gestation of approximately 9 weeks on the same
F

day.

7. After the discovery of the pregnancy, the concerned
authorities had informed the Chandigarh Police who filed FIR G
No. 155 (dated 18.5.2009) under Sections 376 and 1208 of
~
the Indian Penal Code at the Police Station located in Sector
! 26, Chandigarh. Subsequently, an ossification test conducted
on the victim on 20.5.2009 had indicated her bone age to be
-1 around 19-20 years. The Director-Principal of the GMCH
~
' H
1000 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A thereafter constituted a three member medical board on
25.5.2009 whiGh was headed by the Chairperson of the ---+ I
I
Department of Psychiatry in the said :hospital. Their task was
to evaluate the mental status of the victim and they opined that
the victim's condition was that of 'mild mental retardation'.
B Thereafter another multi-disciplinary medical board was.
constituted ~Y the same authority which consisted of a
gynaecologist, a radiologist, a paediatrician and a psychiatrist.
This board was asked 'to submit its considered opinion as to ¥-
the consequences of continuation of pregnancy and the -f
capability of the victim to cope with the same'. Board's opinion
c was submitted on 27.5.2009, which recommended the
termination of the victim's pregnancy. '

8. Since there was no clear statutory basis for proceeding
with the abortion, the Chandigarh Administration moved the High ,..
D Court of Punjab and Haryana seeking a judicial opinion on the ~
said matter. In its order dated 9.6.2009 the High Court had
taken note of the opinion given by the multi-disciplinary medical 1-·

board on 27.5.2009. However, as a measure of abundant
caution the High Court directed the authorities to constitute an
Expert Body consisting of medical experts and framed a set
E of questioi:-s to be answered by this Body. The High Court
stressed on the need for ensuring that this Expert Body would
be independent from the administrative control 9r any form of
influence by the Chandigarh Administration. The intention was 'f
that the Expert Body's findings would enab!e the High Court to
F ascertain the 'best interests' of the womar. in question. In
pursuance of these directions, the Director of the f?ost Graduate
'
Institute of Medical Education and Research (PGIMER),
Chandigarh constituted an expert body comprising of (1) Dr.
Ajit Awasthi, Department of Psychiatry (2) Dr. Savita Kumari,
G Department of Internal Medicine -(3) Dr. Vanita Jain,
Department of Obstetrics and Gynaecology, and (4) Dr. Meenu
Singh, Department of Paediatrics. The High Court had also
directed Smt. Raj Rahul Garg, Additional District and Sessions f ,.
Judge, Chandigarh to act as the member-cum-coordinator of 1
the Expert Body. t
H
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH 1001
ADMINISTRATION [K.G. BALAKRISHNAN, CJI.]
9. At this juncture, it would be pertinent to refer to the A
Expert Body's findings which were duly recorded by the High
Court in its order dated 17.7.2009. The text of the same is
reproduced below:

Question framed by High Expert Body's findings .
Court in its order dated B
9.6.2009 in C.W.P.
8760 of· 2009

(i)The mental condition of the She suffers from mild to
retardee moderate mental retardation C

(ii) Her mental and physical A case of mild to moderate
condition and ability for self- mental retardation,
sustenance Pregnant: Single live foetus
corresponding to 13 weeks D
3 days +/- 2 weeks, Post-
operative scars for spinal
surgery, HbsAG positive.

Her mental status affects her
ability for independent socio- E
occupational functioning and
self-sustenance. She would
need supervision ·and
assistance.
F
(iii) Her understanding about As per her mental status,
the distinction between the she is incapable of making
child born out of and outside the distinction between a
the wedlock as well as the c~ild born before or after
social connotations attached marriage or outside the G
thereto. wedlock and is unable to
understand the social
connotations attached
thereto.
H
1002 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

A I .., ·<' i

(iv) Her capability to She knows that she is
acknowledge the present and bearing a child and, is keen
consequences of her own to have one. However, she
future and that of the child she is unable to appreciate and
is bearing understand the
B consequences of her own
future and that of the child
she is bearing.

(v) Her m'ental and physical She is a young primigravida
c capacity to bear and raise a with abnormalities of gait
child and spinal deformity and
Hepatitis B surface antigen
positive status. However, she
has adequate physical I
Ii-
D capacity to bear and raise a
child. --

She is a case of mild to
moderate mental retardation
which often limits the mental
E
capacity to bear and raise a
child in the absence of
adequate social support and
supervision

F (vi) Her perception about She has grossly limited
bringing up a child and the role perception about bringing up
of an ideal mother a child and the role of an
ideal mother
0

G (vii) Does she believe that she She has a limited
has been impregnated through understanding of the sexual
unvolunteered sex? act and relationship and {
even the concept of getting
pregnant. She did not
H volunteer for sex and did not
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH 1003
ADMINISTRATION [K.G. BALAKRISHNAN, CJI.]

like the sexual act. A

(viii) Is she upset and/or She has no particular
anguished on account of the emotions on account of the
pregnancy alleged to have pregnancy alleged to have
been caused by way of rape/ been caused by way of rape/ B
un-willing sex? un-willing sex. She is happy
with the idea that she has a
"\ baby inside her and looks
forward to seeing the same.

(ix) Is there any risk of injury to Her internal environment of
c
the physical or mental health of pregnancy does not pose
the victim on account of her any particular risk of injury to
present foreseeable the physical health of _the
environment? victim. Her mental health. can
be further affected by the D
stress of bearing and raising
a child.

Her external environment in
terms of her place of stay E
and the support available
thereof is difficult to
comment on because of our
lack of familiarity with the
same. She definitely needs a F
congenial and supportive
environment for her as well
as for the safety of the
pregnancy.
G
(x) Is there any possibility of Her mental state indicates
exerting undue Influence high suggestibility because
through any means on the of her reliance on rote
decision-making capability of memory and imitative
the victim?, behaviour for learning. Being
H
1004 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.

A highly suggestible her
decision-making can be --.Jr
easily influenced.

(xi) Do the overall surroundings We are not familiar with her
B provide reasonable space to overall surroundings, hence
the victim to indulge in unable to comment.
independent thinking process
and take firm decisions on the
issues vital to her life
prospects?
c
(xii) What is the possible As per the neurosurgeo_r:i_._
nature of the major spinal spinal surgery during
surgery. alleged to have been childhood could have been
. undergone by the victim during due to neural tube defect or
D her childhood? Does it directly spinal cord tumour. This
or indirectly relate to the bony could have been confirmed
abnormalities of the victim? by MRI tests, but the same
Can such abnormalities have a could not be carried through
genetic basis to be inherited as those were considered to
E by the baby? be potentially hazardous for
the foetus. There is no history
I records available for the
spinal surgery, hence, the
safety profile issues relevant
F for the patient undergoing
MRI like the possibility of use
of any mental screws to .fix
the spine wherein MRI can
be hazardous cannot be
G definitely commented upon
in this case. The neural tube
defect in the patient can lead
to an increased chance of
neural tube defect in the
H baby. However, these
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH 1005
ADMINISTRATION [K.G BALAKRISHNAN, CJI.]

defects can be detected by A
blood tests of the mother and
ultrasound. Presence of
neural tube defect in the
parent is not an indication for
termination of pregnancy. It is , B
not possible to comment on
the inheritance of spinal cord
tumours without knowing the
exact nature of the tumour.
c
(xiii) Is there a genuine The possibility of
possibility of certain complications like abortion,
complications like chances of hypertension, prematurity,
abortion, anaemia, low birth weight baby and-
hypertension, prematurity, low foetal distress are similar to
D
birth weight baby, foetal any pregnancy in a woman of

- distress including chanees of
anaesthetic complications, if
the victim in the present case
is permitted tor carry on the
this age group.
Due to the spinal abnormality
and gait defect she has a
higher chance of operative E
pregnancy?
delivery and associated
anaesthetic complications.
Spinal and gait
abnormalities are not an
indication for termination of F
pregnancy.

Pregnancy in women with
Hepatitis B surface antigen
positive status is usually
G
uneventful. The prenatal
transmission from mother to
infant can be prevented by
giving immunoprophylaxis to
the neonate. Acute or
H
1006 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A

B (xiv) What can be .the most Her physical status poses no
prudent course to be followed major physical
in the best interest of the contraindications to continue
victim? with the pregnancy. The
health of foetus can be
monitored for any major
c congenital defects. Her
mental state · indicates
limited mental capacity
[intellectual,· social adaptive
. '• .. , . and emotional capacity] to
D ~·

bear and raise the child.
Social .support ~nd care fo~
both the mother and the child .
. _is . anoth~r . crucial
component. Therefore, ,any
decision that is tak'en
keeping her best interests in ·
·mind a$ we)I as those of her
unborn child ..::.. has to be :
based on the holistic ~--

F . assessment of physical,
psychological and social
parameters.

TERMINATION OF PREGNANCY CANNOT BE
G PERMITTED WITHOUT THE CONSENT OF THE VICTIM
1.N r.H1·s· CAs. e ·· · ·A~ -~ • ~·-

10. 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.
H · We dls'agree with this conclusion since the victim had clearly_
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH 1007
ADMINISTRATION [K.G. BALAKRISHNAN, CJI.]
-J.~- expressed her willingness to bear a child. Her reproductive A
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 B
statute clearly contemplates that even a woman who is found
to be 'mentally retarded' should give her consent for the
i, termination of a pregnancy. In this regard we must stress upon
· the language of Section 3 of the Medical Termination of
Pregnancy Act, 1971 [Hereinafter also referred to as 'MTP
Act'] which reads as follows:- c

-
---.

...J....
"3. When pregnancies may be terminated by registered
medical practitioners. - ( 1) Notwithstanding anything
contained in the Indian Penal Code [45 of 1860), a
registered medical practitioner shall not be guilty of any
offence under that Code or under any other law for the time
D
,.__,,
being in force, if any, pregnancy is, terminated by him in
-"' accordance with the provisions Of this Act.
(2) Subject to the provisions of sub-section (4), a
pregnancy may be terminated by a registered medical E
practitioner:-

)- (a) where the length of the pregnancy does not exceed

.. ~
twelve weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve
weeks but does not exceed twenty weeks, if not less than
two registered medical practitioners are,
F

_. of opinion, formed in good faith, that -
(i) the continuance of the pregnancy would involve a
risk to the life of the pregnant woman or of grave G
inju,ry to her physical or mental health; or '
~ - • • 1 • , ~ ·. j • ' ' ' :· Ii.

(ii) there is a substantial risk that if the child were born,
it would suffer from such. physical or mental
abnormalities as to be seriously handicapped,
H
1008 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

A 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.
B Explanation 2. - Where any pregnancy occurs as a result
of failure of any device or method used by any married
woman or her husband for the purpose of limiting ttie
number of children, the anguish caused by such unwanted ,t--
pregnancy may be presumed to constitute a grave injury
c to the mental health of the pregnant woman. '
(3) In determining whether the continuance of a pregnancy
would involve such risk of injury to the health as is
mentioned In sub-section (2),_ account may be taken of the \

pregnant woman s actual or reasonable foreseeable
D environment. +
-.-
(4) (a) No pregnanty of a woman who has not attained the
age of eighteen years, or, who, having attained the age of
eighteen years, is a mentally ill person, shall be terminated
except with the consent in writing of her guardian.
-
E
(b) Save as otherwise provided in clause (a), no pregnancy
shall be terminated O}\~pt with the consent of the pregnant
woman." ...,
.,
-
11. A plain reading.of the above-quoted provision makes
F it clear that Indian law allows for abortion only if the specified
conditions are met. When the MTP Act was first enacted in
1971 it was largely modelled on the Abortion Act of 1967 which--

G
had been passed in the Uitited Kingdom. The legislative intent
was to provide a qualified 'right to abortion' and the termination
of pregnancy has never been recognised as a normal recourse
for expecting mothers. There is no doubt that a womari;s. right ·
-
to make reproductive choices is also a dimension of 'personal
liberty' as understood under Article 21 of the Constitution of
r
India. It is important to recognise that reproductive choices ean
be exercised to procreate as well as to abstain from
H
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH 1009
ADMINISTRATION [K.G.. BALAKRISHNAN, CJI.)

procreating. The crucial consideration is that a woman's right A
--..- to privacy, dignity and bodily integrity should be respected. This
means that there should be no restriction whatsoever on the
exercise of reproductive choices such as a woman's right to
refuse participation in sexual activity or alternatively the
insistence on use of contraceptive methods. Furthermore, B
women are also free to choose birth-control methods such as
undergoing sterilisation procedures. Taken to their logical
·-i conclusion, reproductive rights include a woman's entitlement
~ to carry a pregnancy to its full term, to give birth and to
. I

subsequently raise children. However, in the case of pregnant
women there is also a jcompelling state interest' in protecting c
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 D
~....,
reproductive choices.

.. 12. A perusal of the above mentioned provision makes it
clear that ordinarily a pregnancy can be terminated only when
a medical practitioner is satisfied that a 'continuance of the
pregnancy would involve a risk to the life of the pregnant woman E
or of grave injury to her physical or mental health' [as per
Section 3(2)(i)] or when 'there is a substantial risk that if the
)- child were born, it would suffer from such physical or mental
abnormalities as to be seriously handicapped' [as per Section
t 3(2)(ii)]. While the satisfaction of one medical practitioner is
~
F
required for terminating a pregnancy within twelve weeks of the
gestation period, two medical practitioners must be satisfied
about either of these grounds in order to terminate a pregnancy
between twelve to twenty weeks of the gestation period. The
explanations to this provision have also contemplated the
G
termination of pregnancy when the same is the result of a rape
or a failure of birth-control methods since both of these
~ eventualities have been equated with a 'grave injury to the
mental health' of a woman. In all such circumstances, the
consent of the pregnant woman is an essential requirement for
proceeding with the termination of pregnancy. This position has H
1010 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R

A been unambiguously stated in Section 3(4)(b) of the MTP Act, -~
1971. The exceptions to this rule of consent have been laid
down in Section 3(4)(a) of the Act. Section 3(4)(a) lays down
that when the pregnant woman is below eighteen years of age
or is a 'mentally ill' person, the pregnancy can be terminated if
B the guardian of the pregnant woman gives consent for the
same. The only other exception is found in Section 5(1) of the
MTP Act which permits a registered medical practitioner to ·~
proceed with a termination of pregnancy when he/she is of an
opinion formed in good· faith that the same is 'immediately
necessary to save the life of the pregnant woman'. Clearly, none
'
c of these exceptions are applicable to the present case.
13. In the facts before us, the State could claim that it is
the guardian of the pregnant victim since she is an orphan and
has been placed in government-run welfare institutions.
However, the State's claim to guardianship cannot be -l..
D mechanically extended in order to make decisions about the
'r·
termination of her pregnancy. An ossification test has revealed
that the physical age of the victim is around 19-20 years. This ..
. conclusively shows that she is not a minor. Furthermore, her
condition has been described as that of 'mild mental
E retardation' which is clearly different from the. condition. of a
'mentally ill person' as c':!~t;:-,1plated by.Section 3(4)(a)of the
MTP Act. It is pertinent to note that the MTP Act had been
1
amended iri 2002, by way of which the word 'lunatic' was
replaced by the expression 'mentally ill person' in Section 1
...
F 3(4)(a) of the said statute. The said amendment also amended
Section. 2(b) of the MTP Act, where the erstwhile definition of
the word 'lunatic' was replaced by the definition of the
expression 'mentally ill person' which reads as follows:
..
"2(b) 'mentally ill person' means a person Who is in need
G of treatment by reason of any mental disorder other than
me.ntal retardation."
•, ' .•;
~I \\_,i<(~'.., . . ~ 'o,_.'·~ ~+~;

14. The 2002 amendment to the MTP Act indicates that
r
the legislative i!)tent was to narrow down the class of persons
on behalf of whom their guardians could make decisions about
H
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH 1011
ADMINISTRATION [K.G. BALAKRISHNAN, CJI.]

the termination of pregnancy. It is apparent from the definition A
+- of the expression 'mentally ill person' that the same is different
from that of 'mental retardation'. A similar distinction can also
be found in the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995. This
legislation treats 'mental illness' and 'mental retardation• as two B
different forms of 'disability'. This distinction is apparent if one
refers to Section 2(i), (q) and (r) which define 'disability', 'mental
illness' and 'mental retardation' in the following manner:
"2(i) 'disability' means - (i) blindness; (ii) low vision; (iii)
leprosy-cured; (iv) hearing impairment; (v) locomotor c
disability; (vi) mental retardation; (vii) mental illness;
2(q) 'mental illness' means any mental disorder other than
mental retardation
2(r) 'mental retardation' means a condition of arrested or
4 D
incomplete development of mind of a person which is
... specially characterised by subnormality of int~lligence."
... 15. The same definition of 'mental retardation' has also .
been incorporated in Section 2(g) of The National Trust for
Welfare of Persons with Autism, Cerebral Palsy, Mental E
Retardation and Multiple Disabilities Act, 1999. These
legislative provisions clearly show that persons who are in a
condition of 'mental retardation' should ordinarily be treated
r- differently from those who are found to be 'mentally ill'. 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 F
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. It can also be G
reasoned that while the explicit consent of the woman in
j 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. H
1012 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A As mentioned earlier, in the facts before us the victim has not --+-
given consent for the termination of pregnancy. We cannot •
permit a dilution of this requirement of consent since the same
would amount to an arbitrary and unreasonable restriction on
the reproductive rights of the victim. We must also be mindful
of the fact that any dilution of the requirement of consent
B
contemplated by Section 3(4)(b) of the MTP Act is liable to be
misused in a society where sex-selective abortion is. a
pervasive social evil. .....
I
16. Besides placing substantial reliance on the preliminary
c medical opinions presented before it, the High Court has noted
some statutory provisions in the Persons with Disabilities
(Equal Opportunities, Protection of Rights an~ Full
Participation) Act, 1995 as well as The National Trust for
Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999 where the .\-
D. distinction between 'mental illness' and 'mental retardation' has
r-
been .collapsed. The same has been done· for the purpose of
providing affirmative- action in public employment and education ,.i

as well as for the purpose of implementing anti-discrimination
measures. The High Court has also taken note of provisions
E in the IPC which lay down strong criminal law remedies that can
be sought in cases involving the sexual assault of 'mentally ill'
and 'mentally retarded' persons. The High Court points to th~
blurring of these distinctions and uses this to support its
,.
conclusion that 'mentally ill' persons and those suffering from i
F 'mental retardation' ought to be treated similarly under the MTP
Act, 1971. We do not agree with this proposition. We must
emphasize that while the distinction between these statutory
categories can be collapsed for the purpose of empowering
the respective classes of persons, the same distinction cannot ...
be disregarded so as to interfere with the personal autonomy
G that has been accorded to mentally retarded persons for .
exercising their reproductive rights. ~
f
TERMINATION OF PREGNANCY IS NOT IN THE 'BEST
INTERESTS' OF THE VICTIM
H 17. In the impugned orders, the High Court has in fact
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH 1013
ADMINISTRATION [K.G BALAKRISHNAN, CJI.]
agreed with the proposition that a literal reading of Section 3 A
-1- - of the MTP Act would lead to the conclusion that a mentally
retardeQ woman should give her consent in order to proceed
with the termination of a pregnancy. However, the High Court
has invoked the doctrine of 'Parens Patriae' while exercising
its writ jurisdiction to go beyond the literal interpretation of the B
statute and adopt a purposive approach. The same doctrine
has been used to arrive at the conclusion that the termination
of pregnancy would serve the 'best interests' of the victim in
\ the present case even though she has not given her consent
for the same. We are unable to accept that line of reasoning.
c
18. The doctrine of 'Parens Patriae' has been evolved in
common law and is applied in situations where the State must
make decisions in order to protect the interests of those
persons who are unable to take care of themselves.
Traditionally this doctrine has been applied in cases involving
...J D
the rights of minors and those persons who have been found
~ o; to be mentally incapable of making informed decisions for
.. . themselves. Courts in other common law jurisdictions have
developed two distinct standards while exercising 'Parens
Patriae' jurisdiction for the purpose of making reproductive
decisions. on behalf of mentally retarded persons. These two E
standards are the 'Best interests' test and the 'Sub$tituted
judgment' test.
)'
19. As evident from its literal description, the 'Best
interests' test requires the Court to ascertain the course of
~
' action which would serve the best interests of the person in F
question. In the present setting this means that the Court must
undertake a careful inquiry of the medical opinion on the
feasibility of the pregnancy as well as social circumstances
faced by the victim. It is important to note that the Court's
decision should be guided by the interests of the victim alone G
and not those of other stakeholders such as guardians or
~ society in general. It is evident that the woman in question will
need care and assistance which will in tum entail some costs.
However, that cannot be a ground for denying the exercise of
reproductive rights. H
,-

1014 SUPREME COURT REPORTS [2009) 13 (AODL.) S.C.R.

A 20. 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
B 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 !
I

findings recorded by the Expert Body indicate that her mental
c 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
D Interests' test alone which should govern the inquiry in the ~
present case and not the 'Substituted Judgi:nent' test. ,. ..
21. We must also be mindful of the varying degrees of
mental retardation - namely those described as borderline,
.
mild, moderate, severe and profound instances of the same.
E Persons suffering from severe and profound mental retardation
usually require intensive care and supervision and a perusal of
academic materials suggests that there is a strong preference
for placing such persons in an institutionalised environment. ~
However, persons with borderline, mild or moderate mental
F retardation are capable of living in normal social conditions even +
though they may need some supervision and assistance from
time to time. A developmental delay in mental intelligence
should not be equated with mental incapacity and as far as
possible the law should respect the decisions made by persons
who are found to be in a state of mild to moderate 'mental
G retardation'.

-22. In the present case, the victim has expressed her
willingness to carry the pregnancy till its full term and bear a
1
child. The Expert body has found that she has a limited
H understanding of the idea of pregnancy and may not be fully
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH 1015
ADMINISTRATION [K.G. BALAKRISHNAN, CJI.]
~·- prepared for assuming the responsibilities of a mother. As per A
the findings, the victim is physically capable of continaing with
the pregnancy and the possible risks to her physical health are
similar to those of any other expecting mother. There is also
no indication that the prospective child may be born with any
congenital defects. However, it was repeatedly stressed before B
us that the victim has a limited understanding of the sexual act
and perhaps does not anticipate the social stigma that may be
\ attached to a child which will be born on account of an act of
rape. Furthermore, the medical experts who appeared before
us also voiced the concern that the victim will need constant
care and supervision throughout the pregnancy as well as for c
the purposes of delivery and childcare after birth. Maternal
responsibilities do entail a certain degree of physical, emotional
and social burdens and it was proper for the medical experts
.-;( to gauge whether the victim is capable of handling them. The
counsel for the respondent also alerted us to the possibility that D
r~
even though the victim had told the members of the Expert Body
that she was willing to bear the child, her opinion may change
in the future since she was also found to be highly suggestible.
23. Even if it were to be assumed that the victim's
willingness to bear a child was questionable since it may have E
been the product of suggestive questioning or because the
)'- victim may change her mind in the future, there is another
important concern that should have been weighed by the High
; Court. At the time of the order dated 17.7.2009, the victim had
already been pregnant for almost 19 weeks. By the time the F
matfer was heard by this Court on an urgent basis on
21. 7.2009, the statutory limit for terminating a pregnancy, i.e.
20 weeks, was fast approaching. There is of a course a cogent
rationale for the provision of this upper limit of 20 weeks (of
the gestation period) within which the termination of a pregnancy
is allowed. This is so because there is a clear medical
G
-f,
~ consensus thaJ an abortion performed during the later stages
of a pregnancy is very likely to cause harm to the physical health
of the woman who undergoes the same. This rationale was also
noted in a prominent decision of the United States Supreme
Court in Roe v. Wade, 410 US 113 (1973), which recognised H
1016 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.

A that the right of a woman to seek an abortion during the early- --~
stages of pregnancy came within the constitutionally protected
'right to privacy'. Even though this decision had struck down a
statutory provision in the State of Texas which had criminalized
the act of undergoing or performing an abortion, (except in
B cases where the pregnancy posed a grave risk to the health of
the mother) it had also recognised a 'compelling state interest'
in protecting the life of the prospective child as well as the
health of the pregnant woman after a certain point in the )..-
gestation period. This reasoning was explained in the majority ~

opinion delivered by Blackmun, J., 410 US 113, 162-163
c (1973): \

"In view of all this, we· do not agree that, by adopting one
theory of life, Texas may override the rights of the pregnant
woman that are at stake. We repeat, however, that the
State does have an important and legitimate interest in '°"
D ~
preserving
, and protecting the health of the pregnant
woman, whether she be a resident of the State or a non- ""~
resident who seeks medical consultation and treatment
there, and that it has still another important and legitimate
interest in protecting the potentiality of human life. These .•·
I
E interests are separate and distinct. Each grows in
substantiality as the woman approaches term and, at a
point during pregnancy, each becomes 'compelling'.
1
(internal citations omitted)
With respect to the State's important and legitimate
+
F
interest in the health of the mother, the 'compelling' point, t
in the light of present medi·cal knowledge, is at
approximately the end of the first trimester. This is so
. because of the now-established medical fact, (internal
citation omitted), that until the end of the first trimester ~
G mortality in abortion may be less than mortality in normal
childbirth. It follows that, .from and after this point, a State x,,.
·may regulate the abortion procedure to the extent that the
regulation reasonably relates to the preservation and
protection of maternal health ....
..
H
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH 1017
ADMINISTRATION [K.G. BALAKRISHNAN, CJI.]

~ 24. In light of the above-mentioned observations, it is our A
considered opinion that the direction given by the High Court
..(
(in its order dated 17. 7.2009) to terminate the victim's
pregnancy was not in pursuance of her 'best interests'.
Performing an abortion at such a late-stage could have
endangered the victims' physical health and the same could B
-'I have also caused further mental anguish to the victim since she
..( had not consented to such a procedure. We must also mention
\ that the High Court in its earlier order had already expressed
its preference for the termination of the victim's pregnancy (See
Para. 38 in Order dated 9.6.2009) even as it proceeded to
frame a set of questions that were to be answered by a Expert c
Body which was appointed at the instance of the High Court
itself. In such a scenario, it would have been more appropriate
for the High Court to. express its inclination only after it had
(' considered the findings of the Expert Body.
~
D
~ 25. Our conclusions in this case are strengthened by
~· some norms developed in the realm of international law. For
instance one can refer to the principles contained in the United
Nations Declaration on the Rights of Mentally Retarded
Persons, 1971 [G.A. Res. 2856 (XXVI) of 20 December, 1971)
which have been reproduced below:- E

. "1. The mentally retarded person has, to the maximum
degree. of feasibility, the same rights as other human
beings.
t
2. The mentally retarded person has a right to proper F
medical care and physical therapy and to such education,
training, rehabilitation and guidance as will enable him to
develop his ability and maximum potential.
3. The mentally retarded person has a right to economic
security and to a decent standard of living. He has a right G
to perform productive work or to engage in any other
meaningful occupation to the fullest possible extent of his
capabilities.
4. Whenever possible, the mentally retarded person should
live with his own family or with foster parents and H
1018 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.

A participate in different forms of community life. The family ~
with which he lives should receive assistance. If care in an
~
institution becomes necessary, it should be provided in '
surroundings and other circumstances as close as
possible to those. of normal life.
B 5. The mentally retarded person has a right to a qualified
guardian when this is required to protect his personal well- •
)
being and interests. ~
~
6. The mentally retarded person has a right to protection
from exploitation, abuse and degrading treatment. If
c prosecuted for any offence, he shall have a right-to due
process of law with full recognition being given to his
degree of mental responsibility.
7. Whenever mentally retarded persons are unable, ~

'i
because of the severity of their handicap, to exercise all ),.__
D
their rights in a meaningful way or it should become ..- .
necessary to restrict or deny some or all of these rights,
the procedure used for that restriction or denial of rights
must contain proper legal safeguards against every form
of abuse. This procedure must be based on an evaluation
e:
I of the social capability of the mentally retarded person by
qualified· experts and must be subject to periodic review
and to the right of appeal to higher authorities."
1
26. Special emphasis should be placed on Principle 7
(cited above) which prescribes that a faii procedure should be -t
F used for the 'restriction or denial' of the 1ights guaranteed to
mentally retarded persons, which st iould ordinarily be the same
as those given to other human beings. In respecting the
personal autonomy of mentally retarded persons with regard to
the reproductive choice of continuing or terminating a
G pregnancy, the MTP Act lays down such a procedure. We must
also bear in mind that India has ratified the Convention on the
Rights of Persons with Disabilities (CRPD) on October 1, j ;r
2007 and the contents of the same are binding on our legal
system.
H
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH 1019
ADMINISTRATION [K.G. BALAKRISHNAN, CJI.]

-..t _ 27. The facts of the present case indeed posed some A
complex questions before us. While we must commend the
counsel for their rigorous argumentation, this case also
presents an opportunity to confront some social stereotypes and
prejudices that operate to the detriment of mentally retarded
/ persons. Without reference to the present proceedings, we
must admit to the fact that even medical experts and judges
B
are unconsciously susceptible to these prejudices. [See
-.. generally: Susan Stefan, 'Whose Egg is it anyway?
'I Reproductive Rights of Incarcerated, Institutionalized and
Incompetent Women', 13 Nova Law Review 40q,-456
(November 1989)] We have already stressed that persons who c
are found to be in borderline, mild and moderate forms of
mental retardation are capable of living in normal social
conditions and do not need the intensive supervision of an
..a institutionalised environment. As in the case before us,
-rt institutional upbringing tends to be associated with even more D
.. ,. socieil stigma and the mentally retarded person is denied the
opportunity to be exposed to the elements of routine living. For
instance, if the victim in the present case had received the care
of a family environment, her guardians would have probably
made the efforts to train her to avoid unwelcome sexual acts.
E
However, the victim in the present case is an orphan who has
lived in an institutional setting all her life and she was in no
).. position to understand or avoid the sexual activity that resulted
in her pregnancy. The responsibility of course lies with the State
+ and fact-situations such as those in the present case should
alert all of us to the alarming need for improving the F
administration of the government-run welfare institutions.
28. It would also be proper to emphasize that persons who
are found to be in a condition of borderline, mild or moderate
mental retardation are capable of being good parents.
Empirical studies have conclusively disproved the eugenics G
~theory that mental defects are likely to be passed on to the next
generation. The said 'Eugenics theory' has been used in the
past to perform forcible sterilisations and abortions on mentally
retarded persons. [See generally: Elizabeth C. Scott,
'Sterilization of Mentally Retarded Persons: Reproductive H
:•
1020 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.

A Rights and Family Privacy', Duke Law Journal 806-865
(November 1986)] We firmly believe that such measures are -+
anti-democratic and violative of the guarantee of 'equal
protection before the law' as laid down in Article 14 of our
Constitution. It is also pertinent to note that a condition of
'mental retardation' or developmental delay is gauged on the
B basis of parameters such as Intelligence Quotient (l.Q.) and
Mental Age (M.A.) which mostly relate to academic abilities. It
is quite possible that a person with a low l.Q. or M.A. may ~
possess the social and emotional capacities that will enable
him or her to be a good parent. Hence, it is important to evaluate
c each case in a thorough manner with due weightage being
given to medical opinion for deciding whether a mentally
retarded person is capable of performing parental
responsibilities.

D
CONCLUSION AND DIRECTIONS .,_ """
29. With regard to the facts that led to the present
•'•
proceeding, the question of whether or not the victim was
capable of consenting to the sexual activity that resulted in her
pregnancy will be addressed in the criminal proceedings before
a trial court. An FIR has already been filed in the said matter
E and two security-guards from Nari Niketan are being
investigated for their role in the alleged rape.
30. The substantive questions posed before us were ~
whether the victim's pregnancy could be terminated even
-+
F though she had expressed her willingness to bear a child and
whether her 'best interests' would be served by such
termination. As explained in the fore-mentioned discussion, our
conclusion is that the victim's pregnancy cannot be terminated
without her consent and proceeding with the same would not
have served her 'best interests'. In our considered opinion, the
G language of the MTP Act clearly respects the personal autonomy
of mentally retarded persons who are above the age of majority.
Since none of the other statutory conditions have been met in }
this case, it is amply clear that we cannot permit a dilution of
the requirement of consent for proceeding with a termination
H
...
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH 1021
ADMINISTRATION [K.G BALAKRISHNAN, CJI.]

-+-- of pregnancy. We have also reasoned that proceeding with an A
abortion at such a late stage (19-20 weeks of gestation period)
poses significant risks to the physical health of the victim. Lastly,
we have urged the need to look beyond social prejudices in
order to objectively decide whether a person who is in a
.. condition of mild mental retardation can perform parental B
responsibilities.
31. The findings recorded by th~ Expert body which had
....
., examined the victim indicate that the continuation of the
pregnancy does not pose any grave risk to the physical or
mental health of the victim and that there is no indication that c
the prospective child is likely to suffer from a congenital
disorder. However, concerns have been expressed about the
victim's mental capacity to cope with the demands of carrying
., ·~
the pregnancy to its full term, the act of delivering a child and
subsequent childcare. In this regard, we direct that the best
D
medical facilities be made available so as to ensure proper
~" care and supervision during the period of pregnancy as well
as for post-natal care. Since there is an apprehension that the
woman in question may find it difficult to cope with maternal
responsibilities, the Chairperson of the National Trust for
Welfare of Persons with Autism, Cerebral Palsy, Mental E
Retardation and Multiple Disabilities (constituted under the
similarly named 1999 Act) has stated in an affidavit that the
). said Trust is prepared to look after the interests of the woman
in question which will include assistance with childcare. In the
• said affidavit, it has been stated that this Trust will consult the F
Chandigarh Administration as well as experts from the Post
Graduate Institute of Medical Education and Research
(PGIMER) in order to ensure proper care and supervision. If
any grievances arise with respect to the same subject matter
in the future, the respondent can seek directions from the High
G
Court of Punjab and Haryana under its writ jurisdiction.

~ 32. The present appeal is disposed off accordingly.
R.P. Appeal disposed of.