New Delhi: In a case that has judges of the Supreme Court divided, a three-judge bench Thursday pondered over whether a woman who is over 26 weeks pregnant should be allowed to abort her foetus.
A bench comprising Chief Justice of India D.Y. Chandrachud, Justices J.B. Pardiwala and Manoj Misra was hearing an application filed by the central government after a two-judge bench delivered a split verdict in the case. The split verdict came a day after the two-judge bench had allowed the woman to medically terminate her pregnancy.
During the hearing, Chandrachud asserted that while it is cognisant of the autonomy of the mother, the court must “also think of the rights of the unborn child”.
“Who is appearing for the unborn child?” the court asked, emphasising that the foetus is “living, viable”.
The bench further stated that if the woman delivers a few weeks later, the child would have a “chance of survival”, else would have “mental and physical deformities”. It also noted that the other option would be for the court to allow “foeticide”.
“Choice is either we kill the child or have a deformed child by delivering now…? Of course we will not kill the child in the facts of this case,” the CJI was quoted as saying by Bar and Bench.
The bench asked Additional Solicitor General Aishwarya Bhati as well as the petitioner’s lawyer to talk to the petitioner woman and come back to the court Friday, when the matter will be heard again.
On Wednesday, the Supreme Court had delivered a split verdict in the case. The difference in opinion arose in a bench comprising Justices Hima Kohli and B.V. Nagarathna. Kohli said that her “judicial conscience” does 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”. Such a position, she asserted, would be contrary to Articles 21 (protection of life and personal liberty) and 15(3) (State’s powers to make special provisions for women and children) of the Constitution. ThePrint has a copy of the judgment.
On Monday, 9 October, the same bench had permitted the woman to terminate her pregnancy. However, the next day, the central government filed an application demanding recall of the order, and that the court “consider protecting the right to life of the unborn child so that the child has a fair chance of survival”.
This was after Bhati received an email from an AIIMS doctor clarifying 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 court was hearing a petition filed by a 27-year-old married woman who demanded permission for terminating her pregnancy, claiming that “she is neither physically, mentally, psychologically or financially prepared to continue with the unwanted pregnancy,” according to the apex court’s 9 October judgment.
‘Pregnancy came as a shock’
The woman has two sons — a four-year-old and a one-year-old, said the 9 October judgment, noting, “The earlier deliveries of the petitioner were C-section deliveries and both she and her husband were satisfied that their family is complete.”
It said the woman 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 also submitted that she is a homemaker, and her husband has to support his family, as well as his parents and sister. She told the court that they have approached several doctors for an abortion, but her requests were declined because of the statutory bar under the Medical Termination of Pregnancy Act 1971.
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.
The petitioner appeared before a medical board in AIIMS on 6 October, when the foetus was found to be 25 weeks and 5 days old. The board report suggested that “termination of pregnancy may be reconsidered”, noting that “the baby is viable and has a reasonable chance of survival”.
The apex court order noted that when the bench assembled on 9 October morning, the petitioner’s lawyer as well as ASG Bhati told the court that they had interacted with the petitioner and had persuaded her to continue with her pregnancy. However, the court felt it appropriate to interact with the petitioner themselves, before passing any order.
When the bench re-assembled at noon, the petitioner and her husband logged on to the hearing virtually. In their interaction with the court, the couple expressed their reluctance to continue with the pregnancy. They said they are not only worried about the petitioner’s mental, physical and psychological health, but also the fact that she has been under treatment for depression and been prescribed strong medication which could have had an adverse impact on the health of the foetus.
At the end of the conversation, the petitioner again sought the court’s permission to terminate her pregnancy.
‘Married couples ought to be careful’
In its order passed 9 October, the Supreme Court noted that one of the grounds on the basis of which a pregnancy may be permitted to be terminated is when continuing with it could seriously imperil the mental health of the woman.
It emphasised on the right of a woman over her body, and observed, “If an unwarranted pregnancy results in a child being brought into the world, a major part of the responsibility of rearing the child is bound to fall on the petitioner as a mother and a primary caregiver, which onerous responsibility, she does not consider herself fit to shoulder at this point of time.”
The court, therefore, allowed her petition, and directed her to visit the Obstetrics and Gynaecology Department, AIIMS, New Delhi, the next morning. It ordered, “AIIMS shall admit the petitioner for her to undergo the procedure of termination of her pregnancy at the earliest with follow-up as may be advised by the treating doctors.”
However, as a parting note, it said that “it is…expected of married couples to be careful in planning their families and take adequate timely precautions so that they do not end up knocking at the doors of the court at the eleventh hour, praying for termination of pregnancies that have crossed the critical period as in the instant case, 26 weeks.”
The court also emphasised on the absence of adequate family planning measures and said that this “ignorance” needs to be addressed by the central and state governments. In the case before it too, it said that the petitioner’s lawyer “has been candid enough to admit that his client was ignorant of the family planning procedures and she and her husband did not approach any doctor for guidance”.
The order said that the court is “acutely mindful of the patriarchal mindset in many parts of the country and the intense desire to beget a male child sought to be validated by having a ‘Kuldeepak’ to carry forward the name of the family.” This “regressive mindset”, it asserted, was responsible for female infanticide. The court, however, clarified that the situation before it is “different” and the petitioner has “offered valid reasons” for the court to allow her abortion.
Also read: ‘Journalism can’t be prosecuted as terrorism’ — media groups write to CJI on NewsClick raids
‘What is to be done with the baby?’
A day after this order was passed, the central government filed an application on 10 October, demanding recall of the order permitting the termination of the pregnancy.
The application was filed on the basis of a 10 October email sent by a member of the medical board earlier constituted on the Supreme Court’s direction. The doctor, a professor in the department of Obstetrics and Gynaecology at AIIMS, sent the email to ASG Bhati. The email, produced in the 11 October judgment, stated that “as the baby is currently viable (will show signs of life and have a strong possibility of survival)”, the doctors would need a directive from the Supreme Court “on whether a foeticide (stopping the foetal heart) can be done before termination”.
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 opinion, Justice Kohli acknowledged that if the parents agree to keep the baby, it will take a “major physical, mental, emotional and financial toll on the couple”, and if the baby is to go for adoption, the process needs to be spelt out clearly.
She found it unfortunate that this email was sent to the ASG a day after the court order. It said that these observations should have been made a part of the board’s earlier report, “for this court to have had a correct and clear perspective of the matter, which would have perhaps had a different connotation”.
The order also said that in the post lunch session, the petitioner and her husband were physically present in court. An affidavit by the petitioner said, “I have made a willful and conscious decision to medically terminate my pregnancy and don’t want to keep the baby even if it survives.”
“The government can take care of the baby in case it survives & can even give it in adoption or whatever deems suitable to them. I will never raise any objection or make any claim over the baby in the future,” her affidavit added.
‘Foetus not an individual personality’
Justice Nagarathna felt that “her (petitioner’s) decision must be respected by this court”.
She asserted that whether the child to be born is viable or if the child would be a healthy child are not relevant considerations in a case in which the woman is not interested in continuing with the pregnancy.
“What is to be focussed upon is whether the pregnant lady intends to give birth to a child or not,” she explained.
Justice Nagarathna emphasised on the right to reproductive health for a woman, and observed, “It may not be out of place to note that a foetus is dependent on the mother and cannot be recognised as an individual personality from that of the mother as its very existence is owed to the mother.”
She ruled in favour of allowing an abortion, observing, “In this case, when the petitioner has determined to terminate her pregnancy and has completely detached herself from the fact that she would be giving birth to her child shortly, she cannot be made worse off by this Court by declining to grant her the relief she has sought and thereby forcing her to continue with an unwanted pregnancy.”
She noted that the apprehension expressed in the 10 October email by one of the doctors does not find any mention in the earlier medical report filed in court. She then observed, “It was expected that the doctors at AIIMS would understand the import of the order of this Court and accordingly act on it and not seek clarification from this Court on medical procedures.”
She asserted that the contents of the email sent on 10 October were known to the doctors even on 6 October, when the report was submitted by the medical board. She further pointed out that it is not known whether or not this mail was sent on behalf of the entire medical board.
(Edited by Smriti Sinha)