Supreme Court rejects abortion plea in married woman’s third pregnancy

Ignoring the request of a married woman, the Supreme Court rejected her plea seeking to abort her third pregnancy which had crossed the 26-week mark on grounds of post-partum illness.

A Supreme Court bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra stated that allowing the petitioner to terminate the pregnancy would violate Sections 3 and 5 of the Medical Termination of Pregnancy Act.

These sections state 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.

On Monday, the court said it was averse to passing an order favouring the applicant. “There is no immediate threat to the mother’s life and this is not a case of foetal abnormality. In such a case, we are averse to passing such a direction," said the court.

However, the bench also made it clear that cost of bearing the child and all medical procedures would be borne by the state and after the term, the petitioner can decide whether she wanted to give the baby up for adoption or keep the child.

The petitioner, who has two children, had filed the case stating that she was suffering from post-partum psychosis and was not in a position to raise the child either emotionally or financially.

The bench was hearing arguments on the Centre's application seeking recall of the apex court's 9 October order permitting the 27-year-old woman, a mother of two, to terminate her pregnancy. The court reconsidered its decision after doctors from AIIMS stated that the foetus had a strong possibility of survival and the “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.

In the last hearing on 13 October, the SC had directed the AIIMS medical board to file an independent report 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 had doubted the veracity of the woman’s claim of suffering from post-partum psychosis and the medicines she was taking.

Appearing for the Centre, additional solicitor general Aishwarya Bhati had said the opinion of the medical board must be given primacy and in the petitioner's case, the board has advised against termination, citing the viability of the foetus.

Chandrachud had stated during the previous hearing 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 a woman is important, 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 owing to a disorder called lactational amenorrhea, and suffered from postpartum depression and was in a poor financial condition.

Justices Hima Kohli and BV Nagarathna had, on 9 October, allowed the woman to end her pregnancy, but two days later, sharply differed on whether the abortion could go forward, after doctors from AIIMS approached the court stating that the “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 9 October order, prioritising the woman’s decisional autonomy in matters of pregnancy.

While emphasising that the petitioner's decision must be respected, Nagarathna 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."

During the second hearing of the case before the CJI, senior advocate Colin Gonsalves, appearing in an intervention application for Jindal Global Law School, had stated that an unborn child had no rights and that all abortions cause the foetal heart to be stopped. The CJI had then responded stating that the legislature could decide in such matters.