Foetus Has No Separate Identity From Mother; Woman Can't Be Forced To Undergo Pregnancy At Risk Of Physical & Mental Trauma : Justice Nagarathna

The split order passed by a two-judge bench of the Supreme Court on October 11 on the plea of a married woman seeking termination of her unplanned pregnancy at 26 weeks has been uploaded.

In view of the difference of opinion between Justice Hima Kohli and Justice BV Nagarathna, the matter was referred to a 3-judge bench led by Chief Justice of India. It may be recalled that the two-judge bench had initially allowed the woman's plea. However, the next day, the Union of India filed an application to recall the order, citing an email sent by a doctor of the All India Institute of Medical Sciences stating that the foetus was healthy and had strong chances of survival.

Taking note of the email, Justice Kohli recalled the initial order, saying that her "judicial conscience  does not permit the petitioner to terminate the pregnancy." At the same time, Justice Kohli also disapproved of the conduct of the doctor sending the email, despite being part of the medical board.

"Having regard to the fact that the Professor who has sent the email was a part of the same Medical Board, all that is now being stated and pointed out in the email dated 10th October, 2023, ought to have been made a part of the earlier report, for this Court to have had a correct and clear perspective of the matter, which would have perhaps had a different connotation," Justice Kohli said.

However, Justice Nagarathna took a categorical view that the petitioner should be allowed to terminate the pregnancy, particularly due to the "strong determination" expressed clearly by the woman in an affidavit that she did not want to continue with the pregnancy. The judge noted that the petitioner was already a mother of two children, with the second child having born last year.

Justice Nagarathna placed reliance on the judgment authored by Chief Justice of India DY Chandrachud in X v. Health and Family Welfare Department, which affirmed the decisional autonomy of a woman in reproductive choices.

Justice Nagarathna observed that an unwanted pregnancy, whether due to failure in family planning, or due to sexual assault, has the same consequence. Since the lady is not willing to continue with the pregnancy, whether the foetus is viable or not is an irrelevant consideration.

"The pregnant lady is not interested in continuing with the pregnancy. In such a situation whether the child to be born is viable or if the child would be a healthy child are not relevant considerations. What is to be focused upon is, whether, the pregnant lady intends to give birth to a child or not," Justice Nagarathna said.

Foetus has no individual personality from the mother

Justice Nagarathna made certain pertinent observations as follows :

"It may not be out of place to note that a foetus is dependent on the mother and cannot be recognized as an individual personality from that of the mother as its very existence is owed to the mother. 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 is contrary to Article 21 and 15(3) of the Constitution of India which recognize the right to life and liberty and particularly those of a woman."

Right to reproductive health includes right to abortion

Justice Nagarathna continued :

"One cannot also lose sight of the fact that reproduction is unique to women and throughout her life, a woman goes through the process of menstruation, pregnancy, delivery, post-delivery phase and ultimately menopause. As stated above, right to reproductive health being a woman's human right would also include the right to an abortion. Otherwise, a woman who is forced into an unwanted pregnancy would experience physical and mental trauma and to endure the pregnancy which may continue in the post-natal period owing to which she would have the burden of bringing up an additional child and consequently, may lose out on other opportunities in life including right to employment and contribution to the income of the family."

She said that the Supreme Court, while exercising jurisdiction under Article 32 of the Constitution, must focus on the fundamental right of the petitioner.

"The petitioner being conscious of her delicate mental health (postpartum depression after the birth of the second child) for which she is under medication as per the documents produced by the petitioner herself along with the memorandum of writ petition, has made her realise that she would not be in a position to continue her pregnancy till the delivery of the baby and to continue to rear the said baby on its birth. She has thought of not only her health condition but also the socioeconomic condition in which she and her family are placed and has realized that an addition to the family would be a burden to the family."

The judge further said that "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."

Justice Nagarathna noted that the email sent to the ASG was only by one of the doctors of the medical board.

"If despite the said counselling, a pregnant woman is, as in the instant case, determined to terminate the pregnancy, then primacy must be given to her decision by all concerned including courts of law. In the instant case, it is also significant to note that her previous two pregnancies were through Cesarean section and not normal deliveries. The said aspect also has to be borne in mind."

Today, the matter was heard by the 3-judge bench, which also expressed disinclination to allow the petitioner to terminate the pregnancy, considering the viability of the foetus. The rights of the unborn child are also equally important as the decisional autonomy of the woman, said Chief Justice of India DY Chandrachud during the hearing. The bench adjourned the hearing till tomorrow to give petitioner time to reflect.

The petitioner had previously informed the Court that she had used the contraceptive method of Lactational Amenorrhea, since she was breastfeeding her second child. However, this contraception method failed and resulted in her pregnancy, which she discovered belatedly. Lactational Amenorrhea is the absence of menstruation in lactating mothers.

Citation : 2023 LiveLaw (SC) 881

Click here to read the order (personal details redacted)