SC directs for a re-scrutiny of conditions of woman seeking to end over 26-week pregnancy

SC directs for a re-scrutiny of conditions of woman seeking to end over 26-week pregnancy

The Centre said it was unable to convince the 27-year-old woman against the termination plea.

The Supreme Court on Friday called for a fresh report from the All India Institute Of Medical Sciences (AIIMS) on whether the foetus is suffering from any substantial abnormality, after it agreed to hear the plea and pass an order for the medical termination of a 26-week pregnancy following the Centre's submission that the court that it has not been able to persuade the married woman against her petition. The woman pleaded for an immediate termination of her pregnancy.

The bench led by Chief Justice of India DY Chandrachud also called for a fresh report on the health conditions of the woman in view of the drugs she had been taking for her postpartum depression. The next hearing of the case has been scheduled for Monday.

“The petitioner is here. Unfortunately, we have been unable to convince her. She is still vulnerable,” additional solicitor general Aishwarya Bhati earlier informed the bench.

On Thursday, the Supreme Court gave the 27-year-old woman 24 hours to reconsider her plea for immediate termination of her pregnancy, a day after a two-judge bench sharply differed on the case.

A three-judge bench led by CJI Chandrachud said 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.

“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 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.

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.

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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.

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