By Dave Andrusko
On Thursday, in a fast-moving and rapidly changing case, a three-judge special panel of the India’s Supreme Court has asked the mother of a 26-week-old baby to reconsider her request for an abortion.
The special bench was convened after a two-judge bench issued a split verdict on Wednesday. “The court was informed the doctor attending the woman had objected to terminating her pregnancy,” according to Srishti Ojha and Sanjay Sharma. “Upon receiving the doctor’s report, the court objected and questioned as to why the medical report came after the court order in the case was delivered.
“If this email had arrived earlier, we would not have been rushed into ordering an abortion. After receiving the email, my judicial conscience does not permit me to order the termination of the pregnancy outright,” Justice Kohli said.
While Justice Kohli said “she was not inclined to permit the 27-year-old woman to terminate her pregnancy,” Justice Nagarathna dismissed the application seeking to recall the October 9 order which authorized the abortion. She said the previous order was “well considered.”
With the woman still seeking an abortion, Chief Justice DY Chandrachud quickly constituted a bench of three judges to hear the case.
The three judges heard “that the AIIMS [All India Institutes of Medical Sciences] medical board had assessed the foetus as having a viable chance of survival and that they would have to conduct foeticide,” Kanu Sarda reported.
“The court urged the woman to carry on the pregnancy for a few more weeks so that the child is not born with physical and mental deformities,” according to Sarda.
“The rights of unborn child have to be considered,” the judges said. “Undoubtedly, the autonomy of woman must trump. She has a right under Article 21, but equally, we must be conscious of the fact that whatever is done will affect the rights of the unborn child.”
The upper limit for abortions under the Medical Termination of Pregnancy Act “is 24 weeks for married women and special categories, including survivors of rape and minors,” Sarda explained. “In this case, as the petitioner had surpassed the 24-week limit, she was required to seek the court’s permission to terminate her pregnancy.”
That stirred Chief Justice Chandrachud to say, “She says she is not ready. She is going to have a delivery right now- a C-section. Why doesn’t she do it a few weeks later? She can give the child for adoption. Then the child would have a chance of survival because it’s a viable child. They are saying that look we can only do this (abortion) by stopping the foetal heart.”
According to Sarda, the woman’s counsel emphasized what that been cited before—”that she would experience postpartum depression and had suicidal tendencies” if she gave birth again. She has two other children.
The bench countered,
“This is not a case where she is a minor victim; she is a married woman. What was she doing for 26 weeks? She has two children, she knows the consequences also. What do you want us to tell the doctors to do? To close the foetal heart? AIIMS wants the court to issue that direction.”
The court emphasized the importance of waiting a few more weeks. “When the counsel asserted that her client was not in a position to deliver the child, the Chief Justice stated, ‘So you want the child to be born alive now? If the child is born alive right now, then the child will be born with physical and mental deformities. If you wait for eight weeks, it will be a normal child in all probability.’”
Chief Justice Chandrachud said “We cannot direct AIIMS to perform feticide. We can’t ask AIIMS to put the foetus to death under a Judicial order.” He said the woman should be “apprised” of the court’s position, “and get back to the court tomorrow morning at 10:30 when the matter will be revisited.”