SC Uses The Term "Pregnant Person," Not Pregnant Women, In Judgment

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The Supreme Court acknowledged the rights of non-binary individuals and transgender men in matters of pregnancy. In its ruling, the Court utilized the term “pregnant person” rather than “pregnant woman,” signifying a significant step towards inclusivity and recognition of diverse gender identities.

Supreme Court uses the term "Pregnant Person" in Judgment And Recognizes Pregnancy in Non-Binary Individuals and Transgender Men — Supreme Court uses the term “Pregnant Person” in Judgment And Recognizes Pregnancy in Non-Binary Individuals and Transgender Men

NEW DELHI: Last week (April 29), The Supreme Court noted that pregnancy is not exclusive to cisgender women but can also be experienced by individuals identifying as non-binary, transgender men, and various other gender identities. The clarification came during the adjudication of a case involving the termination of pregnancy for a 14-year-old girl who had been sexually assaulted.

The bench, composed of Chief Justice of India DY Chandrachud, Justices JB Pardiwala, and Manoj Misra, issued a clarification on their use of the term ‘pregnant person’ instead of ‘pregnant woman’. The court stated, “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 emphasized the importance of considering the physical and mental health of the pregnant person, regardless of their gender identity.

“In a footnote, the Court clarified its use of the term ‘pregnant person,’ acknowledging that pregnancy is not exclusive to cisgender women but can also be experienced by individuals identifying as non-binary, transgender men, and other gender identities,”

The minor girl in question had approached the Bombay High Court seeking permission for the termination of her pregnancy when she was over 27 weeks pregnant. A medical board initially deemed her physically and mentally fit for the procedure, subject to the High Court’s permission. However, a subsequent clarificatory opinion from another medical board, without directly examining the girl, denied the termination based on the gestational age of the fetus and the absence of congenital abnormalities.

On appeal, the Supreme Court ordered a re-examination of the girl’s pregnancy by the medical board. In its report, the board approved the termination, stating that continuing the pregnancy would negatively impact the physical and mental well-being of the girl. Consequently, on April 22, the Supreme Court allowed the termination.

The Court emphasized the importance of the medical board’s opinion under the Medical Termination of Pregnancy Act, 1971 (MTP Act), particularly regarding the impact of pregnancy on the physical and mental health of the individual.

“…the court relies on the opinion of the medical board constituted under the MTP Act for their medical expertise. The court would thereafter apply their judicial mind to the opinion of the medical board. Therefore, the medical board cannot merely state that the grounds under Section 3(2-B) of the MTP Act are not met. The exercise of the jurisdiction of the courts would be affected if they did not have the advantage of the medical opinion of the board as to the risk involved to the physical and mental health of the pregnant person. Therefore, a medical board must examine the pregnant person and opine on the aspect of the risk to their physical and mental health.”

However, due to the delay caused by the parents’ decision-making process, the girl’s health was deemed at high risk due to the advanced stage of her pregnancy, which exceeded 30 weeks. Taking into account the parents’ concern for their daughter’s health and the minor’s intention of giving birth to the fetus for subsequent adoption, the Supreme Court recalled its earlier order.

The court further highlighted that the clarificatory opinion provided by the medical board before the High Court failed to address the impact of the pregnancy on the physical and mental health of the pregnant person, as required by the Medical Termination of Pregnancy Act, 1971 (MTP Act).

In light of this case, the Supreme Court issued specific directions to medical boards:

The MTP Act protects practitioners and medical boards when they form an opinion in good faith regarding the termination of pregnancy.
Medical boards, while forming their opinions on termination of pregnancies, should not restrict themselves to the criteria defined under Section 3(2-B) of the MTP Act. They must also evaluate the physical and emotional well-being of the pregnant person.
When issuing clarificatory opinions, medical boards must provide sound and cogent reasons for any change in opinion and circumstances.
The consent of the pregnant person holds paramount importance in decisions related to reproductive autonomy and termination of pregnancy. In cases where there is a divergence of opinions between the pregnant person and their guardian, the opinion of the minor or mentally ill pregnant person must be considered as a significant factor in arriving at a just conclusion.