Abortion case: SC asks AIIMS to file fresh medical report on 26-week-old foetus

The Supreme Court directed the AIIMS medical board to file a fresh report on the health of the foetus while hearing the petition filed by a married woman to terminate her 26-week pregnancy and wanted to know whether there would be any impact of the medicines prescribed to the woman for treatment of post-partum issues on the health of the foetus. The court will hear the case on Monday.

A bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala, and Manoj Misra heard the matter for the second day after a two-judge bench was sharply divided on Wednesday.

The bench directed the medical board to submit a report on whether there was any substantial abnormality as per subsection (2)(b) of section 3 of the MTP Act. The subsection states that a pregnancy can be terminated if there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality and if the continuance of a pregnancy would involve such risk of injury to the health of the pregnant woman.

The woman has been consistently stating that she wants to terminate the pregnancy. Her lawyer said that she is not in a position to raise a third child and that the woman in question cannot go one day without the medications which are harmful to the unborn child. He further submitted that the woman suffers hallucinations and has attempted suicide due to her ailments.

Additional Solicitor General Aishwarya Bhati, appearing for the Centre, said that the opinion of the medical board is given primacy and in the petitioner's case the board has denied termination citing the viability of the foetus.

The apex court had on Thursday given the 27-year-old woman 24 hours to reconsider her plea for immediate termination of her 26-week pregnancy. Chandrachud, on Wednesday, said that the Supreme Court cannot overlook the rights of an unborn child when it has to deal with cases of abortion. While hearing the petitioner's counsel, the CJI on Thursday stated that undoubtedly, the autonomy of women trumps, but the right of the unborn child should also be balanced out.

The woman had approached the court, saying she was unaware of her third pregnancy due to a disorder called lactational amenorrhea, and suffered from postpartum depression and poor financial conditions.

Justices Hima Kohli and BV Nagarathna had, on Monday, allowed the woman to end her pregnancy, but two days later, sharply differed on whether the abortion could go forward, after the doctors from AIIMS approached the court stating that “foetal heart” would have to be stopped as part of the procedure. The panel of doctors has advised against the termination of pregnancy, pointing out that the foetus is showing signs of life. The split verdict came on a recall petition by the Centre.

Justice Kohli said she was not willing to proceed with the earlier decision and wondered which court would ask to stop the “heartbeat of a foetus that has life”. But justice Nagarathna remained firm on the October 9 order, prioritising the woman’s decisional autonomy in matters of pregnancy.

Justice Nagarathna, while emphasising that the petitioner's decision must be respected, stated in her order, "I respectfully disagree. The mentioning was done without pleadings being filed. The petitioner has stated all throughout that she does not wish to carry out her pregnancy. This is not a question where the viability of the foetus has to be considered, but the interest and wishes of the petitioner who has reiterated her mental condition and ailments. Her decision must be respected."