Abortion Plea : Supreme Court Asks AIIMS To Examine If Medicines Taken By Petitioner For Post-Partum Psychosis Affected Foetus

In the ongoing petition for medical termination of the pregnancy of a married woman who is 26 weeks pregnant, Supreme Court on Friday doubted the authenticity of the post partum psychosis precription provided by the petitioner to the court. The bench comprising CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra granted liberty to AIIMS to conduct an independent evaluation of the mental and physical condition of the petitioner. It further directed the AIIMS medical board to examine if the medicines taken by the petitioner had any effect on the foetus.The case at hand revolves around a plea for the medical termination of a pregnancy by a married woman, aged 26 years, and the proceedings have ignited discussions about the intersection of pro-choice legislations and the protection of fetal life. 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 psychosis and is not in a position to raise a third child, emotionally, financially and physically. Yesterday, the bench 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. The bench had also directed the counsels to speak with the woman about the possibility of continuing the pregnancy.The issue reached the three-judge bench after a special bench of Justice Hima Kohli and Justice BV Nagarathna had delivered a split verdict on the same. Concluding proceedings today, the CJI remarked– "One thing is clear, we are far ahead of other countries. We don't have the Roe v. Wade issue, we are quite liberal..."Indian Law Is Pro-Choice, Liberal: ASG BhatiAdditional Solicitor General Aishwarya Bhati, opposing the medical termination of pregnancy in the case, commenced her arguments by informing the bench that the petitioner was unwilling to carry out her pregnancy full term. She said– "The petitioner is here. Unfortunately we have been unable to convince her. She is still vulnerable."While underlining that India, with the Medical Termination of Pregnancy (MTP) Act, was a "pro-choice legislation", she asserted that the rights of an unborn child also had to be balanced. Highlighting the "liberal" nature of Indian abortion laws, she submitted that India was the only country which permitted for termination of pregnancy beyond 24 weeks in exceptional cases. She added that no other country permitting for such termination beyond 24 weeks was for a "good reason" as the same was "in consonance with nature".Taking the bench through the provisions of the MTP Act, ASG Bhati specifically relied on Sections 3(2), 3(2B), and 5. Relying on these provisions, she stated that an unborn child was protected once it became "viable and healthy" and only in exceptional cases– where there existed a foetal abnormality or the life of the mother was in danger– would termination of pregnancy would be permitted beyond 24 weeks. Underling the rationale behind the same, she said–"The rationale is- the continuance of pregnancy would involve grave physical or mental health risk to mother. This includes when pregnancy is caused by rape etc."Referring to the provisions of the MTP, the CJI remarked that when the life of a woman was under threat, a foetus could be terminated regardless of its age. "Our law gives paramountcy to the woman's life", the CJI referenced to an example from Ireland where a woman of Indian origin had died due to the inability to terminate her pregnancy, leading to a change in Irish law. The CJI also remarked that the rationale behind permitting termination beyond 24 weeks in cases of foetal abnormalities was that "a child born thereafter with a foetal abnormality - it would affect the quality of life of parents also. And second, it would affect the child's quality of life."Present Case Different Than Judgement In X vs Principal Secretary: ASG BhatiThe ASG then sought to distinguish the present matter with the judgement in X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi.In this judgement, the Supreme Court 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. This case had challenged 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.Referring to this, the ASG submitted–"Please see the prayers. There was a challenge for termination before 24 weeks and then there was a challenge to the law which allowed distinction between married and unmarried women."At this juncture, the CJI remarked– "In case of a sexual assault victim, our law says 24 weeks. Suppose there is a victim, a...

Abortion Plea : Supreme Court Asks AIIMS To Examine If Medicines Taken By Petitioner For Post-Partum Psychosis Affected Foetus

Padmakshi Sharma

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