Supreme Court divided on married woman’s right to abort 26-week pregnancy

Centre says the woman’s reproductive autonomy cannot take away the rights of her unborn child; woman says she cannot take care of a third child; the case is referred to a larger Bench

October 11, 2023 12:56 pm | Updated 05:33 pm IST - New Delhi

Representational image of an Indian activist holding a model of a foetus during a protest against abortion in New Delhi

Representational image of an Indian activist holding a model of a foetus during a protest against abortion in New Delhi | Photo Credit: AFP

A Division Bench of two women judges of the Supreme Court on Wednesday were split in their opinions about the decision of a married woman to abort her 26-week pregnancy and the Centre’s resolve to save the “unborn child”.

Unable to reach common ground, Justices Hima Kohli and B.V. Nagarathna finally referred the case to the Chief Justice of India to form a three-judge Bench.

The woman, a mother of two and her younger child still a one-year-old infant, was firm in her affidavit that she wanted to medically terminate the pregnancy. She told the Bench that she was taking medication for her mental condition and was not in a position to take care of a third child. The woman was present in court along with her husband.

Explained | What are India’s laws on abortions? 

Additional Solicitor General Aishwarya Bhati, for the Union government, however said the woman has no “absolute right of autonomy to exercise her reproductive rights in a way that would take away the rights of her unborn child”.

Ms. Bhati referred to the Medical Termination of Pregnancy (Amendment) Act of 2021, which extended the deadline for abortion in “exceptional circumstances” to 24 weeks. She said these circumstances allowed medical termination only if it was necessary to save the life of the mother or in case of a fatal deformity detected in the foetus.

“Once there is a viable baby, the relief cannot be one-sided. Unless she wants to keep the child, her right to bodily autonomy or integrity cannot be beyond the Act. Her fundamental right to choice can be curtailed by the Parliament,” Ms. Bhati argued.

On October 9, the Bench of Justices Kohli and Nagarathna had, after getting a report from an All India Institute of Medical Sciences (AIIMS) medical board, allowed the medical termination of the woman’s pregnancy in accordance with her wish.

However, the Union returned to the apex court with an application. The application said that one of the expert doctors on the medical board had emailed Ms. Bhati on October 10 against the abortion, saying the child should be given a chance to survive.

“A categorical medical opinion has come now that the child has a chance to survive. The State has a responsibility,” Ms. Bhati said.

The woman’s lawyer, in turn, submitted that the court should give “paramount consideration to the mother”.

“The first concern is the mother. The child’s interest is secondary. Her privacy and dignity is under threat,” the counsel for the woman said.

The lawyer said the woman had taken a conscious decision to not have the baby.

Explained | How has the Supreme Court expanded abortion rights? 

Justice Kohli, in her opinion, agreed with the government that woman should not be permitted to terminate the pregnancy.

However, Justice Nagarathna disagreed with her colleague on the Bench, saying the woman’s decision ought to be respected.

“This is not the case of a viable baby being born or unborn. The interests of the petitioner (the woman) has to be considered. Her socio-economic situation; first that she is a mother of two and her second child is only a year old. She has reiterated that her mental condition and the medication for it does not permit her to continue with the pregnancy. Her decision must be respected by the court. The court must not substitute her decision with a decision of its own,” Justice Nagarathna observed.

Disagreeing with Justice Kohli, she said the government’s application to recall the October 9 order should be rejected and dismissed.

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