Do women with intellectual disabilities have reproductive autonomy? What the law says

The Karnataka High Court permitted the parents of a 23-year-old woman with severe intellectual and developmental disabilities a total abdominal hysterectomy, or the surgical removal of the uterus, last week.

Her parents had approached the court stating that their daughter’s cognitive impairments made her incapable of understanding or managing menstrual hygiene, which had led to recurring infections and prolonged medical complications. After a multidisciplinary medical board confirmed that the woman lacked the capacity to give informed consent and recommended the surgery for her well-being, the court allowed the procedure.

The judgment was the latest instance of courts’ intervention in the reproductive autonomy of women with intellectual disabilities — decisions that often involve the complex intersection of law, medicine, and human rights.

Why approach courts?

Historically, women with intellectual disabilities have been highly vulnerable to forced sterilisations and non-consensual medical procedures, often justified by caregivers as a matter of convenience or under the guise of protecting them from the consequences of sexual abuse.

To prevent this, Indian law places strict safeguards on procedures that permanently alter a person’s reproductive capacity. Section 10 of the Rights of Persons with Disabilities Act, 2016, prevents persons with disability from being subjected to any medical procedure leading to infertility without their free and informed consent.

A legal dilemma, however, arises when a woman’s intellectual disability is so severe that she lacks the cognitive capacity to understand the nature, risks, and consequences of a procedure, rendering her unable to give “informed consent”.

In such scenarios, caregivers and doctors cannot unilaterally make the decision and must approach a court. The courts invoke what is known as “parens patriae” — a legal doctrine wherein the court steps into the shoes of a guardian for individuals unable to care for themselves. The court does not simply substitute its own judgment for the individual’s; it conducts an inquiry to determine what course of action lies in the “best interests” of the person — that prioritises their health, dignity, and bodily integrity.

Guidelines on hysterectomies

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The issue of consent and medical necessity in hysterectomies was addressed by the Supreme Court in the 2023 case of Dr Narendra Gupta v. Union of India, a public interest litigation that highlighted that “unnecessary hysterectomies” were being carried out on women, particularly from marginalised communities, under government health insurance schemes. These procedures were often allegedly performed in private hospitals without informing the women about the side-effects or obtaining their informed consent.

Recognising this as a serious violation of the fundamental right to health under Article 21 of the Constitution, the Supreme Court directed all states and Union Territories (UTs) to strictly implement the Union Health Ministry’s 2022 Guidelines to Prevent Unnecessary Hysterectomies. The court mandated the formation of hysterectomy monitoring committees at the national, state and district levels to audit such surgeries and directed the blacklisting of hospitals found performing the procedure without medical necessity or informed consent.

The abortion dilemma

While the Karnataka case dealt with a hysterectomy, most of the jurisprudence regarding the reproductive rights of intellectually disabled women in India revolves around pregnancies, often resulting from sexual assault.

Here, the Medical Termination of Pregnancy Act, 1971, comes into play. Under the Act, if a pregnant woman has a mental illness, a pregnancy can be terminated with the written consent of her guardian. The law, however, does not extend this guardian-consent provision to women with intellectual disabilities. For them, their own consent remains an absolute legal requirement for an abortion.

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This distinction came to the fore in Suchita Srivastava v. Chandigarh Administration, a landmark 2009 Supreme Court judgment. In this case, a woman with mild intellectual disability residing in a state-run welfare home in Chandigarh was raped and became pregnant. The UT’s administration approached the judiciary seeking to terminate the pregnancy, assuming she was unfit for motherhood. The woman, however, expressed a desire to keep the child.

The case reached the Supreme Court, which ruled in her favour, holding that a woman’s right to make reproductive choices is a fundamental dimension of “personal liberty” guaranteed under Article 21 of the Constitution. The court noted that because she suffered from mental retardation and not a mental illness, the state could not force an abortion without her consent. The court directed the government to provide her with the best medical facilities and support to raise the child.

Another Supreme Court judgment a few years later highlighted the hurdles intellectually disabled women face when they seek an abortion. In Z v. State of Bihar (2017), a destitute woman with mild intellectual disability and HIV was raped and sought to terminate her pregnancy. Despite her willingness, the government hospital delayed the procedure, insisting on obtaining consent from her estranged husband or her father.

The Supreme Court criticised the state authorities, noting that the case reflected a “retardant attitude and laxness to the application of the provisions of law”. Because of the insistence on third-party consent, the pregnancy crossed the statutory legal limit for abortion, forcing the woman to carry the pregnancy to term. The court noted that “for the negligence and carelessness of the hospital, the [woman] has been constrained to suffer” and awarded her financial compensation in lieu thereof.

When medical risk outweighs choice

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Courts are also frequently forced to balance reproductive autonomy with the physical survival of the mother and the medical complexities of late-stage pregnancies.

In 2020, the Orissa High Court heard the case of a mother seeking permission to terminate the pregnancy of her unmarried, physically handicapped, and intellectually disabled daughter who had been raped. The pregnancy had advanced to 24 weeks. A medical board reported that terminating the pregnancy at that late stage would result in life-threatening complications for the woman.

Due to this, the High Court declined to permit the abortion, noting that doing so would endanger the woman’s life. Instead, it ordered the state government to provide ex-gratia compensation, long-term financial deposits, and comprehensive medical and postnatal care for both the mother and the child.

More recently, in July 2024, the Gujarat High Court allowed the termination of a 28-week pregnancy of a 15-year-old tribal girl with mild intellectual disability who was raped. Relying on a medical board’s report that continuing the pregnancy would be physically and psychologically harmful to the girl, the court permitted the late-stage abortion, noting that she would face severe problems raising a child, given her mental condition and young age.