16 Oct 2023 10:03 AM GMT
The Supreme Court today (16.10.2023) rejected the plea of a married woman to abort her third pregnancy which has crossed 26-week on the ground that she was suffering from post partum psychosis after her previous delivery in September 2022. The order was passed by a bench comprising CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra.Noticing that the pregnancy had crossed 24...
The Supreme Court today (16.10.2023) rejected the plea of a married woman to abort her third pregnancy which has crossed 26-week on the ground that she was suffering from post partum psychosis after her previous delivery in September 2022. The order was passed by a bench comprising CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra.
Noticing that the pregnancy had crossed 24 weeks, the court stated that permitting the petitioner to carry on with the termination of pregnancy would violate Sections 3 and 5 of the Medical Termination of Pregnancy Act.
In its order, the court noted that AIIMS, after reporting that the foetus was healthy and viable, had sought for a clarification from the Court whether they can proceed to stop the heart of the foetus for termination of the pregnancy. "This court is averse to passing such a direction. The petitioner also doesn't wish to do the same," stated the court.
The Court also noted that there is no immediate threat to the mother and that it was not a case of foetal abnormality. These are the only two exceptions to terminate a pregnancy beyond the outer limit of 24 weeks as per the MTP Act.
The bench clarified that the cost of all medical procedure in the matter would be borne by the State and the petitioner would have the ultimate say on whether she wanted to keep the child upon being born or give it up for adoption.
The present case had been filed on the ground that the petitioner, a married woman with two children, was suffering from post-partum psychosis and was not in a position to raise a third child, emotionally, financially, and physically.
In the last hearing, the court had doubted the authenticity of the post partum psychosis precription provided by the petitioner to the court. The bench had also granted liberty to AIIMS to conduct an independent evaluation of the mental and physical condition of the petitioner. It had further directed the AIIMS medical board to examine if the medicines taken by the petitioner had any effect on the foetus.
Today, the court was provided with the report of AIIMS which affirmed that the petitioner had in fact been suffering from postpartum psychosis. As per the report, she was taking medications which were not affecting the child adversely. AIIMS also prescribed alternate regime for treatment so that there was no danger to the foetus. It was also reported that no abnormality was detected in the foetus.
The court also refused to hear a challenge to the upper limit for medical termination of pregnancy as 24 weeks by means of an intervention in the proceedings. The court stated that the challenge to the existing law would be addressed through separate proceedings, while the ongoing petition shall remain a matter exclusively between the petitioner and the state.
Earlier too, 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 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.
Interpretation of 'Life' Under Section 5 of MTP Act
Arguing for the petitioner, Advocate Amit Mishra submitted that a broad and purposive interpretation had to be given to the term 'life' under Section 5 of the Medical Termination of Pregnancy Act. As per Section 5, a pregnancy can be terminated even if it has lasted beyond 24 weeks if the "termination of such pregnancy is immediately necessary to save the life of the pregnant woman". To this submission, the CJI remarked that if 'life' under Section 5 was given a the same interpretation as 'life' under Article 21, it would defeat the purpose of Section 3 of the MTP Act. The CJI stated–
"You are saying interpret 'life' to mean life that is meaningful...so you want to give her this overriding power even in the 35th week, that cannot be done..."
As the petitions reached a conclusion, the Mishra submitted–
"I just want to say that this was an accidental and unplanned pregnancy. The woman has asked me to tell your lordships that she doesn't think she can carry on her pregnancy for the next three months...it's a violation of her rights."
Choice Is Now Between Pre-Term Or Post Term Delivery: ASG Aiswarya Bhati
Additional Solicitor General Aiswarya Bhati argued before the court today that the issue no longer pertained to the right of choice of a woman. She stated that the matter now pertained to a 'Hobson's choice' between a pre-term delivery and a full-term delivery, where if the foetus was delivered pre-term, it would not have a 'fighting chance' and may be born with severe physical and mental 'abnormalities'. She asserted–
"After 24 weeks, once it is a viable life, the choice of termination goes once the medical report says that the child is normal and viable."
She added that certain doctors had also written about how aborted foetuses, when disposed, would "sometimes shriek or sometimes cry" and that termination of pregnancy at even 20-24 weeks was provided for women in extreme situations. She further submitted that post the 2021 amendment to the MTP Act, pregnancy above the age of 24 weeks can be limited only on two grounds- immediate threat to mother's life and foetal abnormalities- none of which are present in the instant case.
While concluding her submissions, ASG Bhati reiterated that the State would provide the petitioner and her husband with full medical care and consultation regardless of whether she decided to keep the child with herself or give it for adoption.
No Rights of Unborn Child: Senior Advocate Colin Gonsalves
Senior Advocate Colin Gonsalves, appearing in an intervention application stated that he wished to provide with the submissions of Jindal Global Law School. At the outset, he provided with two submissions–
1. There is no right of an unborn child
Relying on international law, Gonsalves argued that there existed no rights of an unborn child under the international law. However, the right of the woman was absolute. Thus, he stated that primacy could not be given to an unborn child over the right of the mother to choose whether she wanted to carry on with medical termination of pregnancy or not.
2. All abortions cause the foetal heart being stopped
On the issue of the current petition being a case of a late-term pregnancy and thus the doctors raising the apprehension of the termination of pregnancy being 'foeticide', Gonsalves argued that all abortions resulted in the foetal heart being stopped and the same was not a 'surprising' or a 'shocking' phenomenon. He stated that foeticide had been permitted since last 12 years through the guidelines of the government of India. He added that as per Nikhil Datar v Union of India, all abortions lead to the death of a foetus as the same stills the heart of the foetus.
To this submission, the CJI asked–
"Is it your contention that even at 33 weeks or in cases where foetus is not abnormal- the woman should be allowed to abort? Can she get rid of the child even a week before?"
Gonsalves responded in an affirmative and stated that there were no gestational restrictions. He further submitted a statement of the World Health Organisation as per which, he stated, the 24 week guideline for termination of pregnancy was 'obsolete'.
The CJI stated that Indian law would override statements of the WHO or other international precedents. He stated–
"We have our own laws. Exceptions are to foetal abnormalities and to save life of pregnant woman. In absence of challenge to the validity of the act, we have to consider the law as it is...The Government of India cannot act contrary to the mandate of this statute."
The CJI then added–
"Since you are talking of international law- you know what has happened in US after Roe v Wade? Indian law is not regressive. We should also be conversant of the fact that it's easy to criticize our own country..."
The CJI further added that the legislature had a right to legislate in such matters and had done the act of balancing rights in 2021. Now it was for the courts to see if the balancing act was correct or not.
"Can we deny the power of the legislature to take such steps in these incremental matters? Why should we deny that power to a democratically elected legislature and are we better to do more than that?," asked the CJI.
The CJI then stated that the challenge to the law would be dealt with in appropriate proceedings and that the present case was to be limited to be between the petitioner and the state.
The matter reached the three-judge bench after a split verdict in a two-judge bench. Last week, on October 9, a two judge bench comprising Justices Hima Kohli and BV Nagarathna initially allowed the woman to terminate her pregnancy. However, the next day, the Union Government filed an application to recall the order citing an email from a doctor of the AIIMS which stated that the foetus was viable and a direction specifically permitting the stopping of the foetal heart was necessary. Justice Hima Kohli allowed the recall application, saying that her "judicial conscience" did not permit her to allow the termination of pregnancy. On the other hand, Justice Nagarathna stated that the woman's autonomy was paramount and hence, she cannot be forced to undergo the pregnancy at the risk of grave physical and mental trauma. Following the split, the matter was referred to a larger bench.
Case Title : X v. Union of India
Citation : 2023 LiveLaw (SC) 840
Click here to read the judgment