Almost a decade after the Rights of Persons with Disabilities (“RPWD”) Act, 2016, women with intellectual disabilities (WID) continue to have their reproductive rights miscast as matters of protection rather than autonomy.This is reinforced by medical professionals who frequently rely on paternalistic presumptions that WID cannot comprehend/contemplate the outcomes of exercising reproductive rights. This assumption compromises their reproductive agency and perpetuates discrimination, violating the RPWD Act as well as their fundamental constitutional rights.

The RPWD Act requires “appropriate government” to provide WID with information about reproductive rights and legal capacity. Section 92 penalises terminating a pregnancy without ‘express consent’ of WID.

The Medical Termination of Pregnancy Act (“MTP”), 1971 centres consent of WID under Sections 3(4)(a) & 3 (4) (b) but exempts only ‘mentally ill’ women. Since the RPWD Act distinguishes “mental illness” from “intellectual disability,” the MTP Act’s exception doesn’t apply to WID, meaning no one may legally consent on their behalf. This distinction was absent under the repealed Persons With Disabilities Act, 1995 which referred only to mental illness and mental “retardation.”

In Suchita v. Chandigarh, the Supreme Court held while a mentally ill woman’s consent can be dispensed with under the MTP Act, a mentally ‘retarded’ woman is capable of consenting. The RPWD Act later replaced the term “mental retardation” with “intellectual disability,” aligning it with the Diagnostic and Statistical Manual Revision (DSM-V) standards, confirming WID need no psychiatric evaluation for pregnancy termination.

However, these protections remain largely textual as enforcement falters. In practice, doctors, often refer pregnant WID to psychiatrists to ascertain ‘free and informed’ consent. Such referrals constitute undue assessments that infringe WID’s autonomy, as no statute mandates psychiatric assessments. Though doctors cannot be penalised for caution, this practice will continue until the amendments clarify, if ever, such tests’ necessity.

Guardians unilaterally decide for WID, leading to forced abortions, coercive sterilisations and hysterectomies because no standardised processes exist to ascertain informed consent. Psychiatrists attesting “capacity to consent” apply assessments arbitrarily, erring on presumed incapacity. WID are frequently viewed as incompetent mothers or inherently asexual, enabling substituted decision-making by caregivers/state institutions. Although non-consensual abortions are penalised under the RPWD Act, the absence of coherent consent guidelines exposes WID to systemic abuse.

Limited guardianship under Section 14 of the RPWD Act are intended to be used only when a WID cannot make a legally enforceable decision even with support. In practice, this clause is vague about whether choices are genuinely “joint” or substituted, risking abuse. While the RPWD Act embraces assisted decision-making, it does not define how support persons should be chosen or their role.

The Court in Suchita’s case observed that consent cannot be reduced to what society considers to be in a woman’s best interests. It also stressed that a “developmental delay in mental intelligence should not be equated with mental incapacity” and the law should respect decisions made by persons with mild to moderate ‘mental retardation’. This judgement, while welcome, failed to set parameters for testing when a WID’s intellectual disability is “mild” / “moderate” enough for the stakeholders to respect her autonomy.

Reproductive agency of WID is a legally protected right and the law must operationalise it in line with evolving standards of rights-based jurisprudence. To assess WID’s capacity to consent, we suggest a two-pronged approach: First, the RPWD and MTP Acts should clarify that psychiatric evaluation is not mandatory for WID unless medically necessary. Second, standardised consent protocols must be adopted, grounded in two principles: (i) whether the disability prevents understanding the procedure’s nature, purpose, advantages; and (ii) whether she can convey her choice – assistive, nonverbal, or verbal. Section 4 of the UK’s Mental Capacity Act, 2005 also provides a model of the best interests principle that India can adopt. It states that if a person lacks capacity, decisions must follow their past and present wishes, beliefs, and values, not assumptions based on age, appearance, or behaviour. Such decisions must prioritise WID’s own interests, not societal notions of her welfare, as affirmed in Suchita. Building on the cue in the above-mentioned case, the Legislature should amend the RPWD/MTP Acts to establish clearer consent procedures and assisted decision-making frameworks to ensure WID’s benefits from the RPWD Act and move beyond its symbolic recognition.