Last week, the Supreme Court issued a ruling highlighting that pregnancy is not exclusive to cisgender women; it can also be experienced by individuals identifying as non-binary or transgender men, among other gender identities. The apex court used the term, ‘pregnant person,’ instead of a pregnant woman in the ruling, mentioning that pregnancy can also be experienced by “some non-binary people and transgender men among other gender identities.”
The ruling is being called out as another woke attempt to hit Sanatn values and culture, where the sacred feature defining a woman is being attacked. The term pregnant person will surely evade the struggle a woman undergoes to be a mother.
A three-judge bench, led by Chief Justice D.Y. Chandrachud, also added a footnote in the verdict to explain why it preferred to use the term.
“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,” said the bench, also comprising Justices J.B Pardiwala and Manoj Mishra.
The judgment expanded upon the significance of the “primary consent of the pregnant individual in abortion” and emphasised that “if there is a disagreement between the pregnant individual and their guardian, the perspective of the minor or mentally ill pregnant individual must be duly considered as a crucial factor in facilitating the court to reach a fair decision”.
Penned by CJI Chandrachud, the 21-page judgment revisited a previous ruling permitting a 14-year-old girl to terminate her pregnancy, which was over 30 weeks old. Released on April 29, the comprehensive judgment, opting to allow the girl to proceed with the full-term pregnancy, has now been made public.
In April of the preceding year, the CJI sparked controversy with observations suggesting that the concept of “man” or “woman” was not absolute and that categorisation based solely on biological genitalia was overly simplistic. These remarks were made during deliberations on petitions seeking legal recognition for same-sex marriage, as part of a five-judge bench. The bench, with a majority decision, dismissed the petitions.
Upon being instructed to proceed with the procedure, hospital authorities sought further clarification, expressing concerns that the girl’s mother was altering her statements due to the potential risks associated with an MTP at such an advanced stage of pregnancy.
Subsequently, the bench engaged in discussions with the medical team at Sion Hospital and the parents on April 29, ultimately opting to retract its previous order. Additionally, the bench mandated that Sion Hospital cover all expenses related to the minor’s prior hospitalisation and any future re-admission required for delivery. In the event that the minor and her parents decide to offer the child up for adoption after birth, the State Government was directed to undertake all necessary measures in accordance with applicable legal provisions. The bench clarified that this directive does not compel the parents or the minor and that the State should respect their wishes when expressed at the appropriate juncture.
Despite being oral, the CJI’s comments elicited a pointed response from Solicitor General Tushar Mehta, who contended that such a fluid understanding of gender would render many laws impractical, as they rely on the distinction between biological males and females.
The Supreme Court observed that following the girl’s filing of a rape case, the medical board of Grant Government Medical College & Sir JJ Group of Hospitals, Mumbai, issued a report dated March 28, 2024, indicating that termination of the pregnancy might be warranted due to the girl’s physical and mental health. However, since the gestational age of the fetus exceeded 24 weeks, the permissible limit for termination under the MTP Act, they sought permission from the High Court.
Upon reaching the High Court, the medical board issued a contradictory “clarificatory” opinion dated April 3, 2024, without re-evaluating the case. This report opposed termination of the pregnancy, citing a gestational age of 27 to 28 weeks and the absence of fetal abnormalities.
Discussing the legislative intent of the MTP Act, the Supreme Court emphasized that the health of the woman takes precedence, including the mitigation of risks associated with resorting to unsafe and illegal abortion methods. Additionally, it highlighted that denying termination doesn’t eliminate abortions but rather forces individuals towards unsafe practices. The Court stressed the importance of the opinion of Registered Medical Practitioners (RMP) and medical boards in balancing the mandates of the MTP Act with the fundamental rights of pregnant individuals seeking termination.
Highlighting that the apprehension of legal repercussions among registered medical practitioners poses a hurdle for pregnant individuals seeking safe abortion, the Supreme Court emphasised that the MTP Act shields RMPs from prosecution under the Indian Penal Code if abortions are conducted in accordance with the law. The Court underscored that no penalty should be imposed on RMPs for forming opinions, in good faith, regarding the termination of pregnancies, as mandated and empowered by the MTP Act. It emphasised that the bona fide nature of their actions should be unquestioned, extending this assurance to medical boards established under Sections 3(2-C) and 3(2-D) of the MTP Act.
Addressing various concerns brought before it, the bench clarified that medical boards, when forming opinions on pregnancy termination, must also consider the physical and emotional well-being of the pregnant individual, as outlined in previous judgments. Furthermore, when issuing clarificatory opinions, the medical board must provide solid and cogent reasons for any alterations in their stance and the circumstances surrounding such changes.
Prior to this, in the Supreme Court’s March 4 judgment in the case of Sita Soren vs Union of India, CJI Chandrachud, writing for the bench, opted to replace the conventional term “founding fathers of the Constitution” with “founding parents”.
Notably, this isn’t the first instance where the Chief Justice of India (CJI) has employed a gender-neutral term in a verdict he authored. Back in March of this year, presiding over a seven-judge bench, the CJI penned a judgment regarding the extent of parliamentary privileges. In this ruling, he utilised the term “founding parents” in place of “founding fathers.”
