On Thursday, in a case that was progressing rapidly and undergoing significant changes, a three-judge special panel of the Supreme Court of India requested that the mother of a 26-week-old infant reconsider her request for an abortion.
The special bench was convened following a two-judge bench’s issuance of a split verdict on Wednesday. The court was informed that the attending physician had objected to the termination of the pregnancy. This information was provided by Srishti Ojha and Sanjay Sharma. Upon receipt of the doctor’s report, the court expressed its disquiet and queried the rationale behind the delay in the delivery of the medical report, given that the court order in the case had already been issued.
“Had this email been received at an earlier juncture, it would have afforded us the opportunity to deliberate further and not be compelled to order an abortion. Upon receipt of the email, Justice Kohli stated that his judicial conscience precluded him from ordering the termination of the pregnancy.
While Justice Kohli indicated that 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 authorised the abortion. She stated that the previous order had been “well considered.”
In the interim, the woman continued to seek an abortion, prompting Chief Justice DY Chandrachud to promptly constitute a bench of three judges to hear the case.
The three judges were informed that the AIIMS medical board had assessed the foetus as having a viable chance of survival and that they would have to conduct foeticide. Kanu Sarda provided this information in his report.
The court advised the woman to continue the pregnancy for a few more weeks to avoid the birth of a child with physical and mental deformities. This information was provided by Sarda.
The judges stated that the rights of the unborn child must be considered. It is clear that the autonomy of the woman must prevail. In accordance with Article 21, she is entitled to this right. However, it is equally important to be aware that any action taken will inevitably have an impact on 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, according to Sarda. In this instance, as the petitioner had exceeded the 24-week limit, she was obliged to seek the court’s approval to terminate her pregnancy.
This prompted Chief Justice Chandrachud to remark, “She states that she is not prepared.” The patient is currently undergoing a caesarean section delivery. One might inquire as to why the procedure is not postponed to a later date. She is able to relinquish her parental rights and consent to the child being placed for adoption. The child would then have a greater chance of survival, as it would be a viable child. The argument put forth is that the only way to proceed with the abortion is to cease the fetal heartbeat.
As Sarda reports, the woman’s counsel reiterated the previously cited reasons for her decision not to give birth again: namely, that she would experience postpartum depression and suicidal tendencies. She has two other children.
The bench then offered a counterpoint.
“This is not a case where she is a minor victim; she is a married woman. What has she done for 26 weeks? She has two children, she knows the consequences. What should we tell the doctors to do? Close the foetal heart? AIIMS wants the court to give this direction”.
The court underscored the necessity of deferring a decision for 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 at this moment in time, it is likely that the child will be born with physical and mental deformities. “If you wait for eight weeks, the child is likely to be born in a normal state.”
In a statement, Chief Justice Chandrachud asserted that it was beyond the court’s authority to direct AIIMS to perform feticide. It is not within the purview of the judiciary to issue an order directing AIIMS to terminate the pregnancy. He stated that the woman should be informed of the court’s position and return to the court the following morning at 10:30, when the matter will be reconsidered.
Daniel Miller is responsible for nearly all of National Right to Life News' political writing.
With the election of Donald Trump to the U.S. presidency, Daniel Miller developed a deep obsession with U.S. politics that has never let go of the political scientist. Whether it's the election of Joe Biden, the midterm elections in Congress, the abortion rights debate in the Supreme Court or the mudslinging in the primaries - Daniel Miller is happy to stay up late for you.
Daniel was born and raised in New York. After living in China, working for a news agency and another stint at a major news network, he now lives in Arizona with his two daughters.
