Autonomy of women trumps, but need to balance rights of unborn child: CJI

While deferring the hearing in a case of termination of a 26-week pregnancy of a married woman to Friday, the Supreme Court on Thursday said the autonomy of women trumps, but the right of the unborn child should also be balanced out.

A bench comprising CJI D.Y. Chandrachud, Justices J.B. Pardiwala, and Manoj Misra heard the matter in which another bench had delivered a split verdict on Wednesday.

While hearing the petitioner's counsel, the CJI stated that undoubtedly, the autonomy of women trumps, but the right of the unborn child should also be balanced out.

Additional Solicitor General (ASG) Aishwarya Bhati representing the Centre submitted that the doctors were of the opinion that termination could not be done unless foeticide was done. She further said that reproductive rights was not an absolute right.

"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 CJI asked the petitioner's counsel.

The counsel appearing for women replied, "Not at all".

The CJI further asked, "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 a few weeks it'll be a normal child in all probability."

"Who is appearing for the unborn child? You're for the mother, Ms Bhati for the government...How do you balance the rights of the unborn child? It's a living viable foetus," the CJI asked.

Justice Pardiwala told the petitioner's counsel that it was important to understand the foetus would survive better in the womb.

"What your client wants is to relieve me today but your client is also clear that don't stop the heart. Don't kill the foetus. Experts say if we take out the foetus today, it'll grow up with deformities," Justice Pardiwala said.

The court has directed the ASG and the petitioner's counsel to talk to the petitioner and try to make her understand and come back on Friday.

On Wednesday, the apex court bench headed by Justice Hima Kohli and Justice B.V. Nagarathna delivered a split verdict in this case. The case was referred to the larger bench due to disagreement.

"My judicial conscience does not allow me to let it (termination) continue, whereas my sister judge says it should be. We will refer it to a larger bench," Justice Kohli said while presiding over the hearing on Wednesday.

Justice Nagarathna while emphasising that the petitioner's decision must be respected, she 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."

On Tuesday, ASG Bhati made an oral mention before the CJI against the October 9 order by the special bench allowing the termination. The Centre sought a recall of the order after the doctors opined that there was a viable chance of the foetus being born alive.

Taking note of the submission, the CJI on Tuesday asked AIIMS to defer the procedure and directed the Center to file an application for recalling the order.

The woman in question had pleaded before the court that she already has two children and she is mentally and physically not fit to take care of another child. The petitioner further said that she was suffering from depression and wanted to terminate her pregnancy. On Thursday, her counsel told the court that the woman also attempted suicide.

The case is listed for hearing again on Friday at 10:30 a.m. before the three-judge bench headed by the CJI.