Supreme Court rejects plea by married woman to terminate 26-week pregnancy

A bench, comprising CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra, took note that the pregnancy had crossed 24 weeks and held that permitting the woman to carry on with the termination of pregnancy would violate Sections 3 and 5 of the MTP Act

New Delhi: The Supreme Court on Monday rejected a plea filed by a married woman to terminate her 26-week-long pregnancy.

A bench, comprising CJI D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra, took note that the pregnancy had crossed 24 weeks and held that permitting the woman to carry on with the termination of pregnancy would violate Sections 3 and 5 of the Medical Termination of Pregnancy (MTP) Act. According to the fresh AIIMS report, there is no immediate threat to the mother or the foetus.

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The court noted that these are the only two exceptions to terminate a pregnancy beyond the outer limit of 24 weeks as per the MTP Act. The top court directed the Centre to take care of the cost of all medical procedures. It further added that the woman would have the ultimate say on whether she wanted to keep the child upon being born or give it up for adoption. The fresh report by AIIMS has made five points. Firstly, the woman has been suffering from postpartum psychosis.

Secondly, the medicines she was prescribed have not seemingly affected the viability of the child. Thirdly, the report has prescribed a fresh routine of medicines for the woman. The report has further submitted that no abnormalities were detected in the foetus. The three-judge bench in the last hearing had sought a fresh report from AIIMS on the condition of the mother and the foetus and whether there was any impact of the medicines prescribed to the woman for treatment of post-partum psychosis on the health of the foetus.

During the hearing, counsel appearing for the woman interjected and said that the ultrasound could not determine completely the abnormalities in the foetus. He further appealed to the court to consider Section 5 of the MTP Act as he contended that the right to life of a pregnant woman should be interpreted in a wider context here. Counsel emphasised that the woman is medically and financially incapable to care for the child or nurture the child. ASG Aishwarya Bhatti, appearing for the Centre, submitted before the court that the choice is between pre-term delivery or normal delivery and it is no longer a pro-choice question.

Senior advocate Colin Gonsalves said that in international law today, there is no right of the unborn child. The right of the woman is absolute. Gonsalves submitted before the court that according to international law, there are no rights of the unborn child or foetus. All abortions turn into the stopping of a foetal heart, Gonsalves said “…thousands of abortions take place…the foetal heart thing is the govt of India policy. So to say it is surprising and shocking and a new phenomenon – it’s not right,” he told the court.

As Gonsalves further told the court that WHO has stated that the 24-week guideline is obsolete now, the CJI remarked: “I don’t think our law states that we can override our law based on WHO statement.” Emphasising that it is the legislature’s job to make laws, the CJI stated that the challenge to law will be dealt with in separate proceedings and the present case is to be limited between the petitioner and the state.

The woman seeking termination has time and again told different benches of the apex court that she does not want to keep the baby. However, the judges are were divided on allowing the termination. On October 9, a special bench allowed the woman to terminate her pregnancy. The Centre approached the CJI’s court for a recall order on the decision on the basis of the AIIMS report stating that the foetus is viable and there is a chance of survival is very much there.

The CJI put the order on hold and asked the bench to reconsider the order. Later, an all-women divisional bench gave a split verdict and referred the case to a larger bench.