The Supreme Court on Monday declined a married woman’s plea to medically terminate her 26-week pregnancy, saying the court is averse to ordering doctors to “stop the heartbeat” of the foetus when medical reports say she will give birth to a “viable baby”.
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A three-judge Bench headed by Chief Justice of India D.Y. Chandrachud made it clear that the woman cannot claim an “absolute, overriding right” to abort, especially when multiple reports from the AIIMS medical board have confirmed that the pregnancy was neither a cause of immediate danger to her life or that of the foetus.
Section 5 of the Medical Termination of Pregnancy Act prescribes medical termination if the pregnancy was “immediately necessary to save the life of the pregnant woman”.
Chief Justice Chandrachud said the term ‘life’ used in this provision cannot be equated to the broader meaning in which ‘life’ is used in Article 21 of the Constitution. Article 21 upholds an individual’s fundamental right to a dignified, meaningful life.
The Chief Justice said Section 5, on the other hand, uses ‘life’ in the context of a life-and-death situation when medical opinion confirms that a woman’s very existence hangs in balance if she attempts to carry her pregnancy to full term. In fact, Section 5 allows abortion only if the pregnancy poses an actual, physical and immediate danger to a woman’s life and health according to medical experts.
The hearing saw the court’s concern expand beyond the pregnant woman to embrace the rights and well-being of the unborn child.
Suffered from depression
The hearing started with the woman’s counsel submitting in court that she was “physically, emotionally, mentally, financially and medically unable to carry, deliver or raise a child”. He said she was already a mother of two. She suffered from postpartum depression after the birth of her second child in September last year.
The government, represented by Additional Solicitor General Aishwarya Bhati, said medical reports show a healthy foetus with no abnormalities. Ms. Bhati said the woman was well past the abortion limit of 24 weeks under the Act.
“This is no longer a case of pro-life [life of the child] or pro-choice [reproductive autonomy of the woman]. This is actually Hobson’s choice for her. She cannot medically terminate the child now. The choice is now between a pre-term or a full-term delivery. Chances of a healthy child reduces with a pre-term delivery. A full-term delivery gives the child a healthy chance to survive,” Ms. Bhati said.
She submitted that pre-term delivery was opted only in the “rarest of rare cases”.
The court, in turn, noted that the medication taken by the woman for her mental condition had not affected the foetus. The Bench recorded that the AIIMS Board had already prescribed alternative medicine to negate the danger to her and her pregnancy.
The Bench further recorded the government’s willingness to undertake the expenses of the delivery at the appropriate time. The Centre has also assured that, if the parents desire, it would facilitate the adoption of the child.
Senior advocate Colin Gonsalves intervened to argue that the right of the woman was absolute. “In international law, there is no right of the foetus or right of the unborn child,” he argued.
“So even if a woman is in her 33rd or 34th week of pregnancy, will it give her an overriding right to terminate her pregnancy? Can a woman opt for abortion in her 33rd week of pregnancy, irrespective of whether the child is suffering from abnormalities or not?” the Chief Justice asked Mr. Gonsalves.
