Even non-binary persons and transgender men can be pregnant, says Supreme Court of India

NEW DELHI: Using the term ‘pregnant person’ instead of ‘pregnant woman’, in a recent verdict the Supreme Court of India has observed that it ‘recognizes that pregnancy can also be experienced by some non-binary people and transgender men’.

The verdict authored by the Chief Justice of India DY Chandrachud, mentions in a footnote, “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 said the same while disposing a case where a sexual assault victim’s mother had initially sought for permission to terminate her child’s pregnancy. The Supreme Court had granted the same.

The Bombay High Court had denied the minor girl permission to abort the child, which the mother had challenged in the Supreme Court initially. However, of the Supreme Court’s own admission, the time taken in this process increased the foetus’ age to 29 weeks.

“This increased the risk involved in ending the pregnancy of ‘X’ inducing the voluntary change of opinion by ‘X’ and her parents to take the pregnancy to term,” the Supreme Court noted.

Consequently, the mother-minor duo decided to take the pregnancy to term, therefore the Supreme Court recalled its own previous order.

Accordingly, it disposed of the appeal and directed the hospital to bear all the expenses in regard to the hospitalization of the victim and her delivery. 

It reasoned, “This decision is made in light of the decisional and bodily autonomy of the pregnant person and her parents. The MTP Act does not allow any interference with the personal choice of a pregnant person in terms of proceeding with the termination.”

The three-Judge Bench comprising CJI DY Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra also noted that delays caused by Court and Medical Board procedures under the Medical Termination of Pregnancy Act, 1971 (MTP Act) can frustrate the rights of pregnant people to choose freely.

However, this should not be the case. 

It therefore held “that the medical board evaluating a pregnant person with a gestational age above twenty-four weeks must opine on the physical and mental health of the person by furnishing full details to the court.”

Factual Background

The fact of X, a minor of around 14 years of age, being allegedly subjected to sexual assault came to light in March 2024. 

Upon examination it was found that she was pregnant, however, she was already 25 weeks pregnant by then.

The Medical Board constituted under the MTP Act opined that she was mentally and physically fit for termination of pregnancy, subject to the permission of the High Court.

The victim then moved the High Court, however, by then the medical board issued a clarificatory opinion denying the termination. 

It reasoned that the gestational age of the foetus was now 27-28 weeks and that there were no 
congenital abnormalities in the same, therefore, it could not be aborted.

The High Court dismissed the victim’s writ petition and therefore, she approached the Apex Court. 

Cause Title: A (Mother of X) v State of Maharashtra & Anr