'No Immediate Threat To Mother's Life; No Foetal Abnormality' : Supreme Court Rejects Married Woman's Plea To Abort 26-Week Pregnancy

Interpretation of 'Life' Under Section 5 of MTP Act

Arguing for the petitioner, Advocate Amit Mishra submitted that a broad and purposive interpretation had to be given to the term 'life' under Section 5 of the Medical Termination of Pregnancy Act. As per Section 5, a pregnancy can be terminated even if it has lasted beyond 24 weeks if the "termination of such pregnancy is immediately necessary to save the life of the pregnant woman". To this submission, the CJI remarked that if 'life' under Section 5 was given a the same interpretation as 'life' under Article 21, it would defeat the purpose of Section 3 of the MTP Act. The CJI stated–

"You are saying interpret 'life' to mean life that is meaningful...so you want to give her this overriding power even in the 35th week, that cannot be done..."

As the petitions reached a conclusion, the Mishra submitted–

"I just want to say that this was an accidental and unplanned pregnancy. The woman has asked me to tell your lordships that she doesn't think she can carry on her pregnancy for the next three months...it's a violation of her rights."

Choice Is Now Between Pre-Term Or Post Term Delivery: ASG Aiswarya Bhati 

Additional Solicitor General Aiswarya Bhati argued before the court today that the issue no longer pertained to the right of choice of a woman. She stated that the matter now pertained to a 'Hobson's choice' between a pre-term delivery and a full-term delivery, where if the foetus was delivered pre-term, it would not have a 'fighting chance' and may be born with severe physical and mental 'abnormalities'. She asserted–

"After 24 weeks, once it is a viable life, the choice of termination goes once the medical report says that the child is normal and viable."

She added that certain doctors had also written about how aborted foetuses, when disposed, would "sometimes shriek or sometimes cry" and that termination of pregnancy at even 20-24 weeks was provided for women in extreme situations. She further submitted that post the 2021 amendment to the MTP Act, pregnancy above the age of 24 weeks can be limited only on two grounds- immediate threat to mother's life and foetal abnormalities- none of which are present in the instant case.

While concluding her submissions, ASG Bhati reiterated that the State would provide the petitioner and her husband with full medical care and consultation regardless of whether she decided to keep the child with herself or give it for adoption. 

No Rights of Unborn Child: Senior Advocate Colin Gonsalves

Senior Advocate Colin Gonsalves, appearing in an intervention application stated that he wished to provide with the submissions of Jindal Global Law School. At the outset, he provided with two submissions–

1. There is no right of an unborn child

Relying on international law, Gonsalves argued that there existed no rights of an unborn child under the international law. However, the right of the woman was absolute. Thus, he stated that primacy could not be given to an unborn child over the right of the mother to choose whether she wanted to carry on with medical termination of pregnancy or not. 

2. All abortions cause the foetal heart being stopped

On the issue of the current petition being a case of a late-term pregnancy and thus the doctors raising the apprehension of the termination of pregnancy being 'foeticide', Gonsalves argued that all abortions resulted in the foetal heart being stopped and the same was not a 'surprising' or a 'shocking' phenomenon. He stated that foeticide had been permitted since last 12 years through the guidelines of the government of India. He added that as per Nikhil Datar v Union of India, all abortions lead to the death of a foetus as the same stills the heart of the foetus. 

To this submission, the CJI asked–

"Is it your contention that even at 33 weeks or in cases where foetus is not abnormal- the woman should be allowed to abort? Can she get rid of the child even a week before?"

Gonsalves responded in an affirmative and stated that there were no gestational restrictions. He further submitted a statement of the World Health Organisation as per which, he stated, the 24 week guideline for termination of pregnancy was 'obsolete'.

The CJI stated that Indian law would override statements of the WHO or other international precedents. He stated–

"We have our own laws. Exceptions are to foetal abnormalities and to save life of pregnant woman. In absence of challenge to the validity of the act, we have to consider the law as it is...The Government of India cannot act contrary to the mandate of this statute."

The CJI then added–

"Since you are talking of international law- you know what has happened in US after Roe v Wade? Indian law is not regressive. We should also be conversant of the fact that it's easy to criticize our own country..."

The CJI further added that the legislature had a right to legislate in such matters and had done the act of balancing rights in 2021. Now it was for the courts to see if the balancing act was correct or not.

"Can we deny the power of the legislature to take such steps in these incremental matters? Why should we deny that power to a democratically elected legislature and are we better to do more than that?," asked the CJI.