Consent of a Mental Retarded for Abortion necessary -Has the Supreme Court Erred?
Note: This article deals with two aspects; one being the Supreme Court’s judgment in Suchita Srivastava and the other being the legal right of consent of mentally retarded persons under the Medical Termination of Pregnancy Act, 1971.
On 28th August 2009, the Hon’ble Supreme Court passed a landmark judgment upholding Suchita Srivastava’s appeal for the continuation of her pregnancy, quashing the order of the High Court of Punjab & Haryana. This was the first time the Supreme Court was faced with a legal question on the “reproductive rights of a mentally retarded person and their consent” with respect to Abortion under the Medical Termination of Pregnancy Act, 1971. In Suchita Srivastava & Anr v. Chandigarh Administration, the appellant a “mentally retarded woman” challenged the order of termination of pregnancy passed by the High Court of Punjab & Haryana without her consent. Under the MTP Act, consent is essential for a termination of pregnancy subject to certain exceptions. The case opened up unprecedented questions on the reproductive rights of a mentally retarded person. This judgment of the Apex Court has now led to various discussions on the most conflicting issues of abortion once again.
II. Abortion in India:
In India there is no proof or evidence of abortion being legal or illegal until the British Colonial Rule which punished an act of Abortion. Under the Indian Penal Code, 1860 abortion was treated as an offence and was allowed only to save the life of the pregnant woman. But, this strict law on abortion was often breached and women resorted to untrained and ill-advised methods and also to unqualified practitioners of medicine for abortion and this resulted in a high maternal mortality rate.
Abortion in India as of 1st April 1972 came to be governed by the Medical Termination of Pregnancy Act, 1971(hereinafter mentioned as the “MTP Act”). The MTP Act does not expressly use the word “abortion” but instead uses the term “medical termination of pregnancy”. This Act was largely based on the Abortion Act 1967 of UK. It came into effect on 1st April 1972 and clearly stated the conditions under which a pregnancy may be terminated and person who may conduct such terminations. The Act is stated to provide “for the termination of certain pregnancies by registered medical practitioners and matters connected therewith or incidental thereto.” The act was passed for liberalizing abortions and allowed the same under certain grounds.
Section 3 of the MTP Act envisages the conditions under which a pregnancy may be terminated by a medical practitioner. Abortion is permitted in the following conditions:
(a) As a Health Measure (Therapeutic Ground)- When there is a danger or risk to the life or risk of physical or mental health of the pregnant woman (includes contraceptive failure)
(b) On Humanitarian Grounds- when a pregnancy arises out of a sex crime like rape or intercourse with a lunatic woman (now “mentally ill”).
(c) On Eugenic Grounds- when there is substantial risk that the child, if born would suffer from abnormalities.
The Act, however, places a limit within which a pregnant woman may seek for abortion on the above grounds. If the pregnancy is within 12 weeks, then the opinion of one registered medical practitioner and if it is within 20 weeks, then the opinion of two medical practitioners.
Lastly, in all the above situations, the consent of a pregnant woman is essential for a termination of pregnancy subject to certain exceptions. The principal moot point which the court faced was whether a person suffering from ‘mild mental retardation’ is legally competent to give ‘consent’ under this Act. The Supreme Court observed:
“Persons with borderline, mild or moderate mental retardation are capable of living in normal social conditions eventhough 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 retardation’”
III. What is Mental Retardation?
The American Association on Intellectual and Developmental Disabilities (AAID, formerly American Association on Mental Retardation) defines ‘mental retardation’ as an ‘intellectual disability’ and reads-
“Intellectual disability is a disability characterized by significant limitations both in intellectual functioning (reasoning, learning, problem solving) and in adaptive behavior, which covers a range of everyday social and practical skills.”
The World Health Organization (WHO) in its International Statistical Classification of Diseases and Related Health Problems 10th Revision (ICD-10) under code F70 -99 classifies the various degrees of mental retardation. Accordingly, it defines ‘mental retardation’ as-
“A condition of arrested or incomplete development of the mind, which is especially characterized by impairment of skills manifested during the developmental period, skills which contribute to the overall level of intelligence, i.e. cognitive, language, motor, and social abilities.”
Under, F70 of ICD-10 it classifies ‘mild mental retardation’-
“Person with an Approximate IQ range of 50-69(in adults, mental age from 9 to under 12 years)”
Further, persons classified as ‘mentally retarded’ have deficits in social functioning and have very limited behavioral abilities, including the tendency to go alone, coping with unusual stress and self-sustenance and require supervision and assistance. The WHO in its ICD-10 classification of mental retardation has also stressed that adults who suffer from ‘mild mental retardation’ have a mental age between 9-12 years.
IV. Consent under law:
‘Consent’ is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side. It means voluntary agreement by a person in the possession and exercise of mental capacity to make an intelligible choice to do something proposed by another. It supposes a physical power to act, a moral power of acting, and a serious, determined, and free use of these powers. Hence, under law ‘consent’ requires a conscious and voluntary act of exercise of intelligence
Section 90 of the Indian Penal Code, states what cannot be deemed as a valid consent. Consent will not be free if given under fear of injury or misconception of fact or under the unsoundness of mind or in an intoxicated state, or by a child below twelve years of age. The Indian Penal Code under Section 90 includes all mental disorders under unsoundness of mind and as such, the said provision is to protect persons who are mentally challenged from exploitation. As such, such an act is impossible for any person whose mental faculties are underdeveloped. The Hon’ble Supreme Court in Tulshidas Kalolkar v. State of Goa, included ‘mental retardation’ under the expression ‘unsound mind’ and observed,
“A mentally challenged girl cannot legally give a consent which would necessarily involve understanding . . . . . . . . . . to have suffered sexual intercourse with consent”
Therefore, when a person’s mental age is between 9-12 years old, they are as such incapable of forming an independent decision. As such, such persons are incapable of giving a valid consent as their minds are not fully developed to understand things which a major is required to understand. The above medical literature clearly shows that persons suffering from “mild mental retardation” have a mental age of about between 9-12 years of age, and as such the Indian law has stated 18 years as the age of majority as the law considers a person who is 18 years of age to have a well developed mental faculty capable of grasping things and making an independent decision.
V. Has the Supreme Court Erred in Suchita Srivastava?
The moot point is whether the Supreme Court has erred in its consideration that persons who are mentally retarded are capable of giving consent in the legal context. The MTP Act does not provide for any separate provision for a mentally retarded person and the only place where it refers to mentally retarded persons are under Section 2 (b) of the MTP Act where it defines a “mentally ill person” as a person who is need of treatment by reason of any mental disorder other than mental retardation. As such a plain and literal reading of the section shows that persons who are mentally retarded have to give consent for the termination of their pregnancy. But, there is an inherent fallacy in the interpretation of this legislative intent. The distinction between “mentally ill” and “mentally retarded” persons exists because one’s mental retardation does not render one incapable of consenting to an abortion. The Court should first find out the mental age of the persons suffering from “mental retardation”
In Suchita Srivastava the Supreme Court in para 29 of the judgment observed:
“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.”
But as such this is not a correct understanding of the legislative intent. If one’s mental retardation makes one incapable of consent due to lack of “mental maturity”, one would automatically be in the position of a minor and automatically the guardian’s consent would be necessary. But, this does not mean that a person who is mentally retarded is incapable of giving consent. If a mentally retarded person has a mental age of 18 years or above then that person has the legal sanctity to give consent under the MTP Act.
The question therefore in Suchita Srivastava is whether a girl between 9-12 years of age competent to give consent under law? Let us consider a hypothetical scenario-
“A” is a nine-year old girl in the care of her parents living in a normal residential area. She studies in class IV in the local school near her house. “B” is an auto driver who drops her to her school and after school back to her place every day. One day, after school “B” before dropping her at her home, rapes this nine-year old child on the pretext that there was a “scary beast inside her which he was trying to remove”. This girl is unaware of the sexual act in which she was engaged in for she never knew what a “sexual intercourse” was in the first place and doesn’t tell her parents as “B” had told her what he did was to remove a scary beast which was hiding below her tummy. One day the girl complains to her parents of a “tummy-ache” and accordingly her parents take her to a doctor. The doctor after examining the child is bewildered to find that she is pregnant. The parents are also equally bewildered and upon questioning the child, the child repeats the incident which happened with “B”. In the present case, the parents as natural guardians are justified on two counts if they opt to terminate the pregnancy of the child.
(i) As the child is just 9 years old(minor) and as such incapable of understanding the sexual act, the maternal responsibility and also bear a child for she has not yet been educated upon all these.
(ii) It was caused by a diabolical act of rape, under humanitarian grounds the parents as natural guardians are justified in requesting for abortion.
By the above illustration, the author opines that the Supreme Court should have drawn a similar analogy before passing its judgment in Suchita Srivastava. The appellant although she was physically 18 years of age, had a mental age of that of a 9 year old owing to her mental under development. As such, she was not aware of what pregnancy was nor what it meant and neither what a sexual act was. The High Court had rightly invoked its parens patriae jurisdiction and acted in her “best interests”. Considering the appellant was a minor and further impregnated by a diabolical act of rape, the Court was justified on both counts to order for the termination of her pregnancy.
Therefore, where a pregnancy is caused by rape or the pregnant woman is as such incapable of giving consent under law owing to mental retardation, her guardian is justified and legally authorized to act in the best interests of the victim as they are independently incapable of making such decisions.
VI. Is the Supreme Court Partly Correct?
The author opines although the Supreme Court has erred in its judgment in Suchita Srivastava it is partly correct when it recognizes the reproductive rights of persons suffering from “mental retardation”. When a pregnancy is caused by a consensual act of intercourse between “mentally retarded persons” then the Court is justified in holding that in such scenario consent is as such unequivocally pertinent.
The situation in Suchita Srivastava although was different, where the victim had been impregnated by a diabolical act of rape and in such situations, the Court or the Guardians or the Parents of the victim should act in the best interests of the victim as they are independently incapable of making decisions.
The legislature should provide for a separate section under MTP Act which deals with pregnancies of mentally retarded persons arising out of wedlock or out of mutual consensus and also provide for appropriate measures for dealing with those for which guardian’s consent alone is optimal.
Persons who are found to be suffering from mental retardation should first be individually segregated into the level of their mental retardation when they approach for a medical termination of pregnancy. They should also be tested if they are capable of giving a valid consent under law and then accordingly continue with the termination. Although the Supreme Court erred in its judgment in Suchita Srivastava, it shed valuable light on the reproductive rights of mental retardees and as such, has now shown a ray of hope for persons with disabilities( also includes those suffering from “mental retardation”) to have children of their own.
 (2009) 9 SCC 1.
 Section 312 to 316, Indian Penal Code, 1860.
 Parliamentary Debates 1969 on MTP Bill at pp. 2717 and 2718.
 Section 3 of MTP Act, 1971- when pregnancies may be terminated.
 2002 Amendment.
 Section 3 (4) (a) –
No pregnancy 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.
Section 3 (4) (b) –
Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.
P. Ramanatha Aiyar’s The Law Lexicon 2nd Edition 1997.
 2003 (8) SCC 590, para 6.
 Sec. 3 of The Indian Majority Act,1875( No. 9 of 1875)
 (2009) 9 SCC 1.
The author can be reached at: firstname.lastname@example.org