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The Supreme Court on Thursday gave a 27-year-old woman 24 hours to reconsider her plea for immediate termination of her 26-week pregnancy, a day after a two-judge bench sharply differed on the case.
A three-judge bench led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud said that the highest court of the land cannot overlook the rights of an unborn child when it has to deal with cases of abortion. The woman had approached the court, saying she was unaware of her third pregnancy due to a disorder called lactational amenorrhea, and suffered from postpartum depression and poor financial conditions.
Also read: Explained: Abortion laws in India
“Cognisant as we are of a woman’s autonomy in these cases, we cannot be oblivious to the rights of an unborn child…We cannot kill the child,” said the bench, as it asked the woman’s lawyer Rahul Sharma and additional solicitor general Aishwarya Bhati, who appeared for the Union government, to explain the court’s preliminary views to the woman and come back with her answer on Friday.
“What do you want us to tell the doctors — ‘you stop the foetal heart?’ And if that is not what you want, then, if the child is born alive today, the child will have serious mental and physical deformities. We have to also balance out the rights of an unborn child. Whatever you do today is going to affect the rights of the child too,” said the bench, also comprising justices JB Pardiwala and Manoj Misra.
The larger bench was set up a day after a bench comprising two women judges delivered a split verdict on the Centre’s plea to recall an order passed on October 9, allowing the married mother of two to end her pregnancy owing to her vulnerable physical and psychological conditions.
Justices Hima Kohli and BV Nagarathna had, on Monday, allowed the woman to end her pregnancy, but two days later, sharply differed on whether the abortion could go forward, after a medical report said the “foetal heart” would have to be stopped as part of the procedure. The split verdict came on a recall petition by the Centre.
Justice Kohli said she was not willing to proceed with the earlier decision and wondered which court would ask to stop the “heartbeat of a foetus that has life”. But justice Nagarathna remained firm on the October 9 order, prioritising the woman’s decisional autonomy in matters of pregnancy. Following the divergence of views, the matter was referred to the CJI on the administrative side to set up a larger bench.
The 2021 Medical Termination of Pregnancy (MTP) Act allows both married and unmarried women to undergo termination of pregnancy up to 20 weeks following an opinion by a registered medical practitioner. Certain categories of vulnerable women, such as rape survivors, minors and mentally infirm women, can undergo abortion up to 24 weeks under the law. Abortion after 24 weeks is permitted only in cases when there are serious threats to the life or well-being of a woman or for substantial foetal abnormalities. Such cases usually land up before courts that set up medical boards to help it taking a call.
When the three-judge bench took up the Centre’s plea on Thursday, Bhati argued that the right to decisional autonomy and reproductive rights are not absolute rights, like any other rights. “They are subject to a legal regime (MTP Act), which has withstood the scrutiny of the court as well. To go against the law and medical opinion will be difficult and chaotic for the country,” said the ASG, adding it could be difficult for the court to go only by the choice of a woman, who in the doctor’s opinion, was vacillating in her response.
Bhati suggested that the woman could be counselled because allowing her plea in such a state of mind could eventually prove detrimental to her. The law officer further said that postpartum depression was one of the most common medical conditions for women after having children.
At this point, the bench asked the woman’s lawyer, Rahul Sharma, if she wanted the foetus“to be put to death”. “Today, it’s a viable child and not strictly a medical termination of pregnancy. The doctors are in a serious ethical dilemma because they will have to stop the foetal heart. They are asking us, “Mr Supreme Court, direct us to stop the foetal heart.” In plain English, what you are asking for is putting the child to the death under the orders of this court,” it told Sharma.
Responding, Sharma said that she does not want the foetus to be killed. But the court said that there is an “inherent danger” in what the woman wants.
“What your client says is — “Relieve me today and do whatever you need to do”. But since she does not want the foetal heart to be stopped, it means that if the child is delivered today, there are great chances of the child being born with serious deformities,” it said.
The bench asked Sharma why his client would rather take the consequences of a child getting born physically and mentally deformed instead of waiting for a few more weeks when she has already waited for 26 weeks.
“You leave us with two options with what you want today — either we kill the child, or we let the child be born with severe physical and mental deformities. We find it difficult to come to terms with it. A judge’s task is all about balancing rights and duties. The child will not be able to be given up in adoption if it is born with mental and physical deformities. Nobody will adopt such a child. In our country it’s a hard fact. That child will have nobody,” the bench flagged.
The court asked Sharma why the woman cannot consider carrying the pregnancy for a few more weeks so that the health of the foetus is not affected and then the State could take care of the child. “Also look at this way. She has postpartum depression today. But doctors say she will have the same postpartum depression even after she delivers the child prematurely today,” it added.
Sharma said that the question of viability of foetus is being put to his client only because she is married, and had it been a minor or unmarried woman, this would not be an issue. The bench replied: “Does it not make a critical difference that you are married? It is not a case of a minor or a rape survivor…And what about a mother who knows that if I deliver today, the child will be physically and mentally disabled. It is a Hobson’s choice.”
A spate of recent cases before the Supreme Court has underscored the complex labyrinth of laws and the barriers faced by women in accessing safe and legal abortions. In an array of judgments, the top court has marshalled women’s right to reproductive and decisional autonomy. In September 2022, the top court ruled that the rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman. In August this year, the top court held that there must be a “sense of urgency” instead of a “lackadaisical attitude” in attending to the cases of termination of pregnancy, as it asked all courts to grant immediate hearing to such cases.
Utkarsh Anand is Legal Editor at the Hindustan Times. He writes on law, judiciary and governance.
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