'Woman's Autonomy Important, But Unborn Child's Rights Can't Be Ignored': Supreme Court On Married Woman's Plea To Abort 26-Week Pregnancy

The Supreme Court on Thursday (12.10.2023) underlined the importance of balancing the rights of a woman to autonomy and choice with the rights of an unborn child. The three-judge bench of Chief Justice DY Chandrachud and Justices JB Pardiwala and Manoj Misra was hearing the plea for medical termination of the ongoing pregnancy of a married woman who is 26 weeks pregnant.  

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 depression and is not in a position to raise a third child, emotionally, financially and physically. The Court today, 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. 

"Consistent as we are about the need for her autonomy we cannot be oblivious of the rights of the unborn child," Chief Justice DY Chandrachud remarked.  

The matter was referred to the 3-judge bench after a 2-judge bench yesterday delivered a split verdict on allowing the abortion. It may be recalled that initially, on October 9, the two-judge bench had allowed the woman's petition. However, the Union Government later filed an application seeking recall of the order in the light of a medical report suggesting the possibility of survival of the foetus. While hearing the Union's recall application, the 2-judge bench could not reach a consensus and the matter was placed before the CJI's bench.

Reproductive Rights Not Absolute: ASG Aishwarya Bhati

Additional Solicitor General Aishwarya Bhati, argued before the Court that the "exceptional circumstances" which allowed the termination of pregnancy post 24 weeks under the Medical Termination of Pregnancy, i.e, threat to the life of the mother or foetal abnormality, did not exist in the case at hand. She asserted that that a mother's right of decisional autonomy or other reproductive rights were not absolute in nature and were circumscribed by the law made by Parliament. She added that in the present case, the law had not been challenged. She added–

"The X judgement relied upon- in that case, there was a challenge to the rule which prevented an unmarried woman from seeking termination after 24 weeks."

The ASG was referring to the Supreme Court which 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. In that case, 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.

Providing the courts with the AIIMS' medical board's opinion, the ASG stated that as per the current status of the foetus, it has a reasonable chance of survival. She added that carrying out of the termination would amount to a foeticide. The ASG also added that the petitioner was herself not sure of the termination and was in a "vulnerable" state. she said–

"This will be very difficult and chaotic for the country. She herself is not sure. She is at a very vulnerable state. We also tried to counsel her. At one stage she agreed...we told her the baby can be given in adoption, AIIMS can take care of mental health issues."

Must Also Think Of Rights Of Unborn Child: Supreme Court

The bench seemed to object to the petitioner's plea with CJI Chandrachud asking the counsel for the petitioner, "What do you want us to tell the doctors to do? To close the foetal heart?".

The petitioner's counsel said that she does not want the child to be aborted now; instead, she was seeking a permission to deliver the child through C-section now instead of waiting till the full term. The counsel said that the petitioner was not in a mental state to carry the pregnancy to the full term. He pointed out that the woman had the previous delivery in September 2022 and was undergoing post-partum depression, which will worsen if the pregnancy is continued.

This bench seemed to be unwilling to accept this request as the medical report suggested that delivering the child pre-term could result in physical or mental abnormalities. CJI suggested that the petitioner could wait for a few more weeks to have a full term delivery.

The CJI further distinguished the present case with that of cases where the pregnant woman was a minor or a survivor of sexual violence. He stated–

"She is a married woman. What was she doing for 26 weeks? She has two children, she knows the consequences also. What do you want us to tell the doctors to do? To close the foetal heart? AIIMS wants the court to issue that direction."

The petitioner's counsel responded in a negative. To this, the CJI remarked–

"We must also think of the right of the unborn child. Woman's autonomy is important of course. She has a right under Article 21...but equally, we must be conscious of the fact that whatever is done will affect the right of the unborn child. Who is appearing for the unborn child? You're for the mother, Ms Bhati for government...How do you balance the rights of the unborn child? It's a living viable foetus. Today its chances of survival are there but very likely that child would be born with deformities. If she waits for 2 more weeks...to put the child to death is only option? How can the child be put to death under Judicial order?"

While clarifying that the bench was not trying to ridicule the petitioner or doubt the seriousness of postpartum depression, the CJI also asked– "We need to look at other facts too. Did it take her 26 weeks to realise?"

While the counsel for petitioner argued that the petitioner was a poor woman and was not very well-educated, the bench did not seem to be inclined to accept the argument.

Justice Pardiwala said, "The foetus would survive better in womb. That's nature! What your client wants is, "relieve me today". But your client is also clear that don't stop the heart.  Experts say if we take out the foetus today, it'll grow up with deformities."

CJI underlined that if the child was born with deformities, it would have less chances of being adopted. 

The bench will take the matter up tomorrow at 10.30 am. Meanwhile, the bench has directed the counsels to speak with the woman about the possibility of continuing the pregnancy.

Background

Yesterday (11.09.2023) a special bench of Justice Hima Kohli and Justice BV Nagarathna had delivered a split verdict on whether the petitioner should be allowed to terminate her pregnancy.  While Justice Hima Kohli had said that her 'judicial conscience' did not allow her to permit the termination of pregnancy in the light of the latest medical report about the possibility of the survival of the foetus, Justice BV Nagarathna said the choice of the woman must be respected. In view of the disagreement, the matter was referred to a larger bench for consideration.

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.

In its earlier order dated 9th October, the Special Bench of Justice Hima Kohli and Justice BV Nagarathna had permitted the petitioner to proceed with the termination of her pregnancy and had directed the All India Institute of Medical Sciences (AIIMS) to conduct the procedure at the earliest.  

Subsequently, the Union had filed an application for recalling the order dated 09.10.2023 stating that in a new medical report dated 10.10.2023, a doctor of the medical board had said that the foetus had a high chance of survival. The doctors at AIIMS, had raised the apprehension that the foetus would have a viable chance of being born, the Union informed the Court.

The special bench was divided on whether the Union's recall application must be allowed. Justice Kohli said in light of the new medical report, her 'judicial conscience' did not allow her to permit the termination of pregnancy at this stage. However, Justice Nagarathna, said she found no reason to interfere with the 'well reasoned order' passed by the Court initially on October 9.

ASG Bhati appearing for the Union, submitted that the Court had constituted a medical board to assess the condition of the petitioner on 5th October. In its report submitted on 6th October, the medical board, had expressed its opinion that termination should be denied. On 9th October, the Court had directed termination of her pregnancy. The ASG told the Court that only a more elaborate explanation was provided by a doctor of the medical board on 10th October, explaining the current status of the foetus and that it has a reasonable chance of survival.

On Wednesday (11.11.2023), the special bench had asked the Petitioner, who was physically present in court, whether she was ready to carry the pregnancy to term and give the child up for adoption. However, she told the court that she did not want to continue with her pregnancy.