Supreme Court ignites gender debate; uses expression ‘pregnant persons’ 42 times in verdict

Satya Prakash

New Delhi, May 6

Noting that pregnancy can also be experienced by some non-binary people and transgender men, the Supreme Court has for the first time used the term “pregnant persons” instead of “pregnant woman” or “pregnant girl” in a judgment.

A three-judge Bench led by Chief Justice of India DY Chandrachud – which on April 29 recalled its earlier order allowing termination of 31-week pregnancy of a minor rape victim from Mumbai – has used the expression ‘pregnant person/s’ 42 times in its 22-page verdict (including footnotes) released on Monday.

“We use the term ‘pregnant person’ and recognise that in addition to cisgender women, pregnancy can also be experienced by some non-binary people and transgender men among other gender identities,” the Bench explained.

The top court gave primacy to the opinion of a pregnant person — even if minor or mentally ill – in deciding whether to allow abortion of an over 24-week-old foetus. “The consent of a pregnant person in decisions of reproductive autonomy and termination of pregnancy is paramount. In case there is a divergence in the opinion of a pregnant person and her guardian, the opinion of the minor or mentally ill pregnant person must be taken into consideration as an important aspect in enabling the court to arrive at a just conclusion,” it said.

It ordered that the medical board, in forming its opinion on the termination of pregnancies, must not restrict itself to the criteria under Section 3(2-B) of the MTP Act but must also evaluate the physical and emotional well-being of the pregnant person.

The top court also raised questions over the “value judgment” of Parliament about Section 3(2-B) of the Medical Termination of Pregnancy Act, 1971, which allows termination of pregnancy of more than 24 weeks if the medical board opines that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

“The legislation has made a value judgment in Section 3(2-B) of the Act, that a substantially abnormal foetus would be more injurious to the mental and physical health of a woman than any other circumstance. In this case, the circumstance against which the provision is comparable is rape of a minor. To deny the same enabling provision of the law would appear prima facie unreasonable and arbitrary,” it said.

“The value judgment of the legislation does not appear to be based on scientific parameters but rather on a notion that a substantially abnormal foetus will inflict the most aggravated form of injury to the pregnant person. The provision is arguably suspect on the grounds that it unreasonably alters the autonomy of a person by classifying a substantially abnormal foetus differently than instances such as incest or rape,” the top court said, adding, “This issue may be examined in an appropriate proceeding should it become necessary.”