The Supreme Court on Monday refused permission to a married woman to abort her third pregnancy on the grounds that allowing the petitioner to terminate the 26-week-old foetus would violate Sections 3 and 5 of the Medical Termination of Pregnancy Act.
The Bench of Chief Justice of India (CJI) D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra noted that the All India Institute of Medical Sciences (AIIMS), Delhi, after reporting that the foetus was healthy and viable, had sought for a clarification from the Court on whether they could proceed to stop the heart of the foetus for termination of pregnancy.
It said this court was averse to passing such a direction, adding that the petitioner also did not wish to do the same.
The Apex Court further pointed out that the only two exceptions to terminate a pregnancy beyond the outer limit of 24 weeks as per the MTP Act were that there was an immediate threat to the mother and that it was a case of foetal abnormality.
Both these exceptions were not there in the present case, it said and directed the State to bear the cost of all medical procedure in the matter.
The Bench further said that the petitioner would have the ultimate say on whether she wanted to keep the child on being born or give it up for adoption.
On October 12, the Apex Court had observed that while it was important to consider the rights of a woman to autonomy, it could not become oblivious to the rights of an unborn child.
The three-judge Bench of Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra expressed serious concerns about allowing the application, noting that permitting termination at this stage, after the medical report has said that the foetus has a high chance of survival, may amount to foeticide.
Appearing for the Central government, Additional Solicitor General (ASG) Aishwarya Bhati argued that the ‘exceptional’ circumstances which allowed the termination of pregnancy post 24 weeks under the Medical Termination of Pregnancy (threat to life of mother or foetal abnormality) did not exist in the case at hand.
As per Bhati, 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. In the present case, the law had not been challenged.
Regarding the X judgement relied upon, the ASG said in that case, there was a challenge to the rule which prevented an unmarried woman from seeking termination after 24 weeks.
She referred to the Supreme Court which 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.
The ASG said in that case, Rule 3B of the Medical Termination of Pregnancy Rules, which differentiated between married and unmarried women, was challenged. The Apex Court had held that the exclusion of unmarried women who conceived out of live-in relationship from the Rules was unconstitutional, she added.
The ASG, while submitting the AIIMS’ medical board’s opinion, said that as per the current status of the foetus, it had a reasonable chance of survival. Carrying out the termination would amount to a foeticide, she noted.
She said the petitioner was herself not sure of termination and was in a ‘vulnerable’ state. She said the government had also tried to counsel the petitioner, who had agreed at one stage to carry the full-term pregnancy and give the baby for adoption. The ASG assured the Apex Court that AIIMS would take care of mental health issues of the baby and the mother.
The CJI asked the Counsel for the petitioner whether she wanted the doctors to be directed to close the foetal heart?
The counsel apprised the Apex Court that the petitioner did not want the child to be aborted at present, but was seeking permission to deliver the child through C-section now, rather than waiting till the full term.