New Delhi: A three-judge bench of the Supreme Court Monday declined to allow a 27-year-old woman to terminate her pregnancy of over 26 weeks saying that it cannot go beyond the law, as per which termination of pregnancy beyond 24 weeks is allowed only in case of foetal abnormalities or to save the life of the pregnant woman.
The Chief Justice of India D.Y. Chandrachud-led bench rejected the woman’s plea after taking into account a report by the All India Institute of Medical Sciences (AIIMS), in which a nine-member committee of medical experts ruled out any risk to the woman’s life who had moved the Supreme Court last week with a plea to terminate her pregnancy. The committee favoured continuation of the pregnancy and further opined that with proper medical care, treatment and appropriate medical supervision, she and the baby “can be managed well during pregnancy and postpartum”.
The report was furnished to the bench Monday itself by additional solicitor general Aishwarya Bhatti, who informed the court that the board was constituted in terms of the court’s 13 October direction.
The bench referred to this latest medical opinion as well as to the previous one of 6 October to hold that neither indicated that termination of pregnancy is necessary to save the woman’s life. More importantly, the medical diagnosis of the foetus did not detect any abnormalities.
The court said it was averse to direct the doctors to stop the heartbeat of the foetus which, it added, was not even wished by the petitioner.
Paving the way for the child’s delivery, the bench directed AIIMS to carry out the delivery at the appropriate time and ordered the central government to provide the couple support. The Union of India shall also help the couple give the child for adoption, in case the latter agrees for it after the delivery.
The court’s order came on a petition filed by the woman who was 25 weeks and 5 days pregnant when she moved SC, requesting its approval to abort the foetus. The petition threw up questions regarding a woman’s right to choose against an unborn child’s right to survive. A mother of two, the woman said she wasn’t prepared for the pregnancy as after the delivery of her second child, she had adopted the LAM (lactational amenorrhea method), which implies absence of menstruation due to continuing breastfeeding as a contraceptive method.
She was forced to seek court’s intervention in the matter because several doctors had turned down her request for abortion on the grounds that there was a statutory bar under the Medical Termination of Pregnancy Act, 1971 (MTP).
The Act allows an abortion of a pregnancy up to 20 weeks by a registered medical practitioner, and that up to 24 weeks of pregnancy for certain categories of women, including survivors of sexual assault or rape or incest.
Also read: Abortion plea before CJI: Woman cites postpartum psychosis, SC seeks AIIMS report on her & foetus
‘No longer pro-choice issue, now about preterm delivery’
On 6 October, a medical board examined the woman and stated in its report that the “baby is viable and has a reasonable chance of survival”.
However, a two-judge bench of justices Hima Kohli and B.V. Nagarathana on 9 October allowed the woman to end her pregnancy. But an email sent to the court, through Bhatti, by an AIIMS doctor, split the two judges to take a divergent view on their own order.
In the email, the doctor had clarified that “the baby is currently viable (will show signs of life and have a strong possibility of survival), and therefore termination can only be done if it is preceded by a foeticide (stopping of the foetal heart).”
The email explained, “If foeticide is not performed, this is not a termination, but a preterm delivery where the baby born will be provided treatment and care. A baby who is born preterm and also of such low birth weight will have a long stay in intensive care unit, with a high possibility of immediate and long term physical and mental disability which will seriously jeopardise the quality of life of the child. In such a scenario, a directive needs to be given as to what is to be done with the baby?”
In her view, Justice Kohli said that her “judicial conscience” did not allow her to permit termination of the pregnancy.
However, Nagarathna did not agree, and asserted that, “It would be incongruous to conclude that the foetus has a separate identity from the mother and in spite of the physical or mental health of a mother being under threat, she will have to continue her pregnancy until the foetus is born, which would endanger her delicate health.”
Due to this divergence of opinion, the matter was listed before a three-judge bench headed by Chandrachud, which on 13 October detected discrepancies in the medical reports of the woman. Thereafter, it requested a new report from the AIIMS board, asking it to assess the health condition of the mother and foetus.
The court asked for a definite assessment on whether the woman is suffering from mental or physical disorders and if the foetus has any abnormalities due to the medicines the mother has been consuming as part of her postpartum depression treatment.
It wanted to be sure on whether continuation of pregnancy would in any manner be jeopardised due to the drugs prescribed for the woman’s treatment.
As per the latest medical board’s report, which ThePrint has accessed, the foetus does not have any “anomaly at the present time”. However, the board clarified that all abnormalities cannot be picked up in ultrasound scans.
Comprising nine medical experts from the departments of gynaecology, paediatrics, psychiatry and general administration, the board met twice during the weekend and carried out a repeat assessment of the woman. Similarly, a repeat ultrasound examination of the foetus was also conducted to detect any foetal structural anomalies.
The report also said that the continuation of pregnancy to full term, while the woman is on revised medication, as advised by the psychiatrist, “is not likely to significantly increase the risk of adverse outcomes for the mother and foetus,” as compared to the other pregnant women.
With regard to the woman’s past history of postpartum psychosis, the board found that the same is currently under control on medications. On a review of the same, her medications have been revised “for other optimal management”, the board submitted.
“It is felt that with proper care and treatment under appropriate medical supervision, the mother and baby can be managed well during pregnancy and postpartum, as has been previously evidenced by her response to medications, in case of worsening of symptoms, she may be admitted and treated,” stated the board.
While declining medical termination of pregnancy, the bench weighed in on its power under Article 142, which allows it to utilise its extraordinary powers to do justice. It said the said constitutional provision can be used to do complete justice, “but it should not be used in every case,” the bench cautioned.
With regard to the case at hand, the bench said, “Here the doctors will face a viable foetus” and added that termination would mean directing the doctors to “stop its heart beat”, which the bench was averse to.
A pre-term delivery of a viable foetus, the bench further said, would be faced with the risk of life-long abnormalities.
In her brief submission, Bhatti said that the matter was no longer about being pro-choice or otherwise. “Now it is about preterm delivery and on-time delivery. An on-time delivery will give the child a fighting chance. I will stand by that. After 24 weeks, once it is a viable life choice, termination goes once the medical report says that the child is fine,” Bhatti said.
However, the woman’s advocate asserted that her client’s right to choose was supreme and that the act permitted termination beyond 24 weeks in case pregnancy’s continuation risked a woman’s life, which, in his submission, is a combination of both physical and mental well-being.
(Edited by Zinnia Ray Chaudhuri)
Also read: ‘Foeticide’ vs ‘mother’s autonomy’ — what is abortion plea that split SC bench & is now before CJI