Abortion Plea : Supreme Court Asks AIIMS To Examine If Medicines Taken By Petitioner For Post-Partum Psychosis Affected Foetus

In the ongoing petition for medical termination of the pregnancy of a married woman who is 26 weeks pregnant, Supreme Court on Friday doubted the authenticity of the post partum psychosis precription provided by the petitioner to the court. The bench comprising CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra granted liberty to AIIMS to conduct an independent evaluation of the mental and physical condition of the petitioner. It further directed the AIIMS medical board to examine if the medicines taken by the petitioner had any effect on the foetus.

The case at hand revolves around a plea for the medical termination of a pregnancy by a married woman, aged 26 years, and the proceedings have ignited discussions about the intersection of pro-choice legislations and the protection of fetal life. The petitioner, a mother of two, had approached the Apex Court for termination of her third pregnancy, now at 26 weeks, since she is suffering from post-partum psychosis and is not in a position to raise a third child, emotionally, financially and physically. Yesterday, the bench expressed serious concerns about allowing her application, stating that allowing termination at this stage, after the medical report has said that the foetus has a high chance of survival, may amount to foeticide. The bench had also directed the counsels to speak with the woman about the possibility of continuing the pregnancy.

The issue reached the three-judge bench after a special bench of Justice Hima Kohli and Justice BV Nagarathna had delivered a split verdict on the same. Concluding proceedings today, the CJI remarked– "One thing is clear, we are far ahead of other countries. We don't have the Roe v. Wade issue, we are quite liberal..."

Indian Law Is Pro-Choice, Liberal: ASG Bhati

Additional Solicitor General Aishwarya Bhati, opposing the medical termination of pregnancy in the case, commenced her arguments by informing the bench that the petitioner was unwilling to carry out her pregnancy full term. She said– "The petitioner is here. Unfortunately we have been unable to convince her. She is still vulnerable."

While underlining that India, with the Medical Termination of Pregnancy (MTP) Act, was a "pro-choice legislation", she asserted that the rights of an unborn child also had to be balanced. Highlighting the "liberal" nature of Indian abortion laws, she submitted that India was the only country which permitted for termination of pregnancy beyond 24 weeks in exceptional cases. She added that no other country permitting for such termination beyond 24 weeks was for a "good reason" as the same was "in consonance with nature".

Taking the bench through the provisions of the MTP Act, ASG Bhati specifically relied on Sections 3(2), 3(2B), and 5. Relying on these provisions, she stated that an unborn child was protected once it became "viable and healthy" and only in exceptional cases– where there existed a foetal abnormality or the life of the mother was in danger– would termination of pregnancy would be permitted beyond 24 weeks. Underling the rationale behind the same, she said–

"The rationale is- the continuance of pregnancy would involve grave physical or mental health risk to mother. This includes when pregnancy is caused by rape etc."

Referring to the provisions of the MTP, the CJI remarked that when the life of a woman was under threat, a foetus could be terminated regardless of its age.

"Our law gives paramountcy to the woman's life", the CJI referenced to an example from Ireland where a woman of Indian origin had died due to the inability to terminate her pregnancy, leading to a change in Irish law. 

The CJI also remarked that the rationale behind permitting termination beyond 24 weeks in cases of foetal abnormalities was that "a child born thereafter with a foetal abnormality - it would affect the quality of life of parents also. And second, it would affect the child's quality of life."

Present Case Different Than Judgement In X vs Principal Secretary: ASG Bhati

The ASG then sought to distinguish the present matter with the judgement in X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi.

In this judgement, the Supreme Court had declared that unmarried women were also entitled to seek abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship. This case had challenged Rule 3B of the Medical Termination of Pregnancy Rules, which differentiated between married and unmarried women was challenged. The court had held that the exclusion of unmarried women who conceive out of live-in relationship from the Rules was unconstitutional.

Referring to this, the ASG submitted–

"Please see the prayers. There was a challenge for termination before 24 weeks and then there was a challenge to the law which allowed distinction between married and unmarried women."

At this juncture, the CJI remarked– "In case of a sexual assault victim, our law says 24 weeks. Suppose there is a victim, a young minor, she may not even know she is pregnant. She may realise and keep it a secret from family. And then she comes to court- court may take a different view."

Medical Board's Opinion Must Be Given Primacy, Petitioner Herself Is Oscillating: ASG Bhati

ASG Bhati's next limb of submission was that the opinion of the medical board had to be given primacy. She argued that in other judgements where the medical termination of pregnancy was permitted- the opinion of the medical board was given preference. She argued– "Every time the court does look at the medical board's opinion. It has to be given primacy."

In the present case, ASG Bhati asserted, the medical board had clearly denied the termination "because the baby has a viable and reasonable chance of survival". She submitted that the board had initially denied the termination too and written to the Supreme Court after the court's first order permitting the termination. The CJI asked–

"So you're seeking recall on subsequent report of AIIMS...the second report doesn't say anything new so is there a ground of recall?"

ASG Bhati stated that the medical board had explained the views better in the second correspondence.

She added–

"The next submission is on the oscillating view of the petitioner herself. They say sometimes we have to save the person from themselves. She had agreed earlier...let the baby have a fighting chance for survival. The state will go out of our way to ensure...we will do whatever is required. We will give an undertaking."

The court asked the State if it was willing to bear the cost of all the medical expenses. ASG Bhati responded in an affirmative

Petitioner Suffers From Post Partum Psychosis, Unborn Child At Risk Due To Medications: Advocate Amit Mishra

Advocate Amit Mishra, representing the petitioner, argued that the woman had been under treatment for post-partum psychosis since October 2022(her second child birth was in September 2022) and had been taking medications unsuitable for pregnancy. Her condition had deteriorated rapidly, leading to her approach to the Supreme Court within days of discovering her pregnancy. Mishra emphasized the severity of her mental health condition, indicating a history of attempted suicide and self-harm, making a compelling case for the termination of her pregnancy.

Underlining her situation, he said–

"She delivered first child in 2019. After 2022, she gave birth to second child- both by cesarean. After second delivery, she got heavy symptoms of post partum psychosis. Post partum depression is different than post partum psychosis. She was under continuous treatment of a psychiatrist after second delivery. After ten days she got symptoms of post partum psychosis...she was taking medicines for the whole year. She came to know of pregnancy later on. These medicines are not safe for pregnancy. She took heavy dose of medicines of depression instead of taking medicines for iron deficiency. For the first time, the petitioner got to know of her pregnancy on 28th September. Within 5 days she came to Supreme Court. In those also 3 days were holidays. There was no delay in approaching the court."

Further elaborating on her condition, Mishra added that if the petitioner did not take her medicines for even a single day- she faces issues such as lack of sleep, suicide attempts, and hallucinations. "She even tried to harm her child. That's why the children are with mother in law," he said.

Doubt On Legitimacy Of Doctor's Prescription: Supreme Court

After going through the prescriptions, the CJI remarked that none of the handwritten prescriptions contained any reference to the nature of the petitioner's diagnosis or condition. In this context, he asked– "Are these prescriptions to be believed by the Supreme court? Or are they bought up to move us? It casts doubt on legitimacy of prescription. Or is it done on Sept 2023 to bolster the case?"

Mishra argued that the behaviour of doctor should not cause the petitioner to suffer. But the bench seemed unconvinced and orally remarked that the AIIMS medical board could examine whether the petitioner had any signs of having consumed the medications hence provided in the prescriptions. 

Accordingly, the bench passed an order stating that it would be necessary to have the medical opinion of the AIIMS medical board on the following–

1. Whether the foetus is suffering from any substantial abnormality as per Section 3(2B) of the MTP Act? 

2. Whether there is any evidence to suggest that continuance of pregnancy full term would be jeopardised by drugs prescribed to the petitioner for post partum psychosis?

AIIMS medical board was further granted liberty to carry out its own independent evaluation of the mental and physical condition of the petitioner and was directed to apprise the court if in case the petitioner was found to be suffering from postpartum psychosis, then what alternate medicines could be prescribed to her to not harm the unborn child.

The matter will now be taken up on Monday (16.10.2023).