'AIIMS Cannot Decide For Mother' : Supreme Court Refuses To Entertain Hospital's Curative Plea Against Termination Of Minor's Pregnancy

The Supreme Court on Thursday refused to entertain a curative petition filed by the All India Institute of Medical Sciences, New Delhi, against an order of a two-judge bench allowing the termination of the pregnancy, presently at 30 weeks, of a minor girl aged 15 years.

At the same time, the Court allowed the AIIMS doctors an opportunity to counsel the minor mother and her family, and share the medical reports and information with them to enable them to take an informed decision on whether to keep the child or go for abortion.

The Court said that AIIMS cannot impose its decision (that pregnancy should not be terminated) on the mother, and that the woman should have the option of taking an informed decision. The bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi made it clear during the hearing that a curative petition at the instance of the AIIMS will not be entertained.

On April 24, a bench comprising Justice BV Nagarathna and Justice Ujjal Bhuyan had allowed the termination of pregnancy, and directed AIIMS to carry out the procedure. Yesterday, the same bench dismissed the review petition filed by AIIMS, saying, "It is strange that the review petitioner-All India Institute of Medical Sciences (AIIMS) is not inclined to obey the order of the Supreme Court and instead, is assailing the order of this court, in order to defeat the constitutional rights of the minor daughter of the appellant herein."

Following that, the AIIMS filed a curative petition, which was urgently mentioned before the bench of the Chief Justice of India this morning.

Additional Solicitor General Aishwarya Bhati made an emotional plea, saying that the foetus is now 30 weeks old, and by waiting for four more weeks, the newborn can be given up for adoption.

The ASG said that there was a high possibility of the foetus coming out alive, and that the termination procedure could cause irreversible health damages to the minor girl.

However, the bench was not at all inclined to entertain the curative petition. "Unwanted pregnancies cannot be burdened on the woman," CJI Surya Kant said.

The Chief Justice pointed out that the minor girl was a victim of rape, and the unwanted pregnancy was a result of that. "This is a case of child rape. Victim will have a lifelong scar and trauma. This is a foetus vs child fight," CJI said.

The ASG, however made a fervent plea, saying that the foetus is viable, and an injection has to be delivered through the mother's womb to make its heart stop. She stated that it is a complicated procedure.

The ASG conceded during the hearing that she is not as composed and detached as a law officer ought to be while handling a case. She highlighted that the law protected viable life outside the window of 24 weeks.

The bench however stood firm in its view, with the CJI recalling that one of the first judgments regarding abortion rights was delivered by him when he was a judge of the Punjab and Haryana High Court. Had that judgment not been reversed by the Supreme Court then, it would have been the law of the land since 2014, the CJI said.

The ASG said that in the present case, what is to be carried out is a foeticide itself, which can be harmful to the child. The ASG requested that permission be given to counsel the child and the parents.

Justice Bagchi asked why the hospital was not sharing the data with the child and her family, instead of pressing the curative petition. "If a curative has to come, it has to come from them, not from you. Let us not make it a fight between the State and the citizens," Justice Bagchi commented. Justice Bagchi said that it was for the mother and her family to take an informed decision, and not for the AIIMS to thrust its views upon them. "It is not for AIIMS to choose for the citizens. It is just to render medical service," Justice Bagchi said.

The ASG emphasised that foeticide is prohibited by the law. Justice Bagchi said that the cut-off is for statutory authorities, and won't apply to the Court while passing orders under Article 142 of the Constitution.

ASG Bhati requested that the Court grant AIIMS the opportunity to counsel the mother and her parents, and to come back to the Court again. While the bench said that the AIIMS was free to counsel the mother and her parents, it refused to allow AIIMS to come back to the Court. "You cannot come back. You share the reports and data with them. Let them take an informed decision. If they want to keep the child, let them. Then they can come to us," Justice Bagchi said.

When the ASG again referred to the statutory limit of 24 weeks under the Medical Termination of Pregnancy Act, the CJI told her, "Please amend your law that in case of pregnancy of a minor rape victim, the time limit will not apply."

The bench said that by the time a minor victim realises the development of pregnancy and becomes aware of the statutory remedies, the time limit will be over. The bench also pointed out that many victims will be reluctant to disclose the matter. In such a situation, the remedies cannot be foreclosed.

The CJI also said that the law should be amended to ensure trials in cases of child rapes are carried out at the earliest. The ASG informed the bench that in the present case, the accused is also a minor himself.

Bench interacts with the doctors

At the request of the ASG, the bench interacted with the doctors from AIIMS. Dr.Ramesh Agarwal informed the bench that there was a high chance of the foetus coming out alive. If the child is born in such a process, the child will have chances of developing abnormalities. He informed that there was an earlier case, where the doctors, with the permission of the Court, counselled the minor mother to avoid abortion, and the child was born normally, and recently celebrated the first birthday.

The CJI said that the doctors are focusing too much on the unborn child, rather than the mother. "Too much focus on the child and not the mother who has gone through such pain."

Dr Aparna Sharma of AIIMS, in her interaction with the bench, said that it was not a matter of 'foetus v child' but 'child v child'. Justice Bagchi said that it was a case of 'unborn child v. born child'.