Will Supreme Court let biology decide fate of 26-week pregnant woman?

The woman claims that she came to know of the pregnancy on September 28 and within five days she had approached the Supreme Court for medical termination. The court has already made her wait for another nine long days.

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A three-judge Bench of the Supreme Court remained undecided on whether to permit a 27-year-old married woman to terminate her 26-week pregnancy even as the Union government failed to persuade the petitioner to reconsider her decision.

A Bench comprising Chief Justice of India (CJI) D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra has now directed the All India Institute of Medical Science (AIIMS), New Delhi to medically examine the petitioner in order to apprise it on whether the foetus suffers from any substantial abnormalities.

This came even as the CJI observed that we are far ahead of other countries. "We don't have the Roe versus Wade issue. We are quite liberal," he said.

The Bench also wants to know from the AIIMS whether there is any evidence to suggest that the continuance of pregnancy to term would be jeopardised by the drugs that the petitioner is purportedly taking for postpartum psychosis.

This was a result of the doubt that arose in the mind of the Bench regarding the prescription records handed over by the petitioner's counsel. The prescription did not mention the reasons for which the medication had been prescribed to the petitioner. The Bench wondered whether it was done to bolster the case of the petitioner.

In addition, the Bench wants the AIIMS to ascertain whether the petitioner is indeed suffering from postpartum psychosis, and whether any alternate medication is available to protect the foetus and the petitioner's health.

The Bench felt compelled to seek this information from the AIIMS since under the Medical Termination of Pregnancy Act, 1971, there are only two exceptions under which termination of a pregnancy that has crossed the 24th week can be allowed.

These exceptions are: i) Where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a medical board [(Section 3(2B)] and, ii) If a registered medical practitioner formed an opinion in good faith that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman (Section 5).

Additional Solicitor General (ASG) Aishwarya Bhati, who appeared for the Union of India, argued that pro-choice could not mean the right to extinguish the life of an unborn child as she opposed the plea of the married woman.

Bhati submitted that there was actually no dichotomy between the first report of the AIIMS and the email sent by Dr K. Aparna Sharma, professor, department of obstetrics and Gynaecology, AIIMS, seeking clarification on stopping the foetal heart. The Bench wondered if there was no dichotomy then what was the ground to seek recall of the Order of the division Bench of October 9.

The petitioner's advocate Amit Sharma reiterated his submissions that the petitioner has been taking heavy medicines for depression and that she is not in a position to carry the pregnancy to term. He submitted that the petitioner came to know about her pregnancy only on September 28, 2023, and within five days she approached the Supreme Court on October 4, 2023.

Mishra also submitted that the first child was born to the petitioner in 2019 and the second child was born to her in 2022. After the second delivery, the petitioner got postpartum psychosis. 

The Bench will now hear the matter on Monday.

Background

It all started on October 5, when the division Bench of the Supreme Court comprising Justices Hima Kohli and B.V. Nagarathna heard the petition filed by the woman under Article 32 of the Constitution.

The woman is seeking termination of her pregnancy, asserting that she is not physically, mentally, psychologically or financially prepared to continue with the unwanted pregnancy.

The petitioner also informed the Bench that she has had her two children through C-section deliveries. The petitioner sought to justify the delay in approaching the court stating that she conceived despite adopting the lactational amenorrhea method. It was her contention through her lawyer that pregnancy is considered rare amongst breastfeeding women with lactational amenorrhea, but the petitioner's case was an exception.

The Bench admonished the petitioner for approaching the Supreme Court directly instead of knocking on the doors of the high court first. Justice Kohli noted that just because the petitioner was a resident of Delhi, she could not take the liberty of coming directly to the Supreme Court as a matter of convenience.

The Bench observed that the conception was voluntary, and the parents have suddenly got cold feet. The Bench underlined its concern for the precious life of the unborn child.

The Bench added that there was a stark difference between a forced pregnancy resulting from an assault and a voluntary pregnancy.

The counsel's submission that the petitioner was suffering from depression after her second delivery invited a sharp retort from the Bench. The Bench observed that if that was the case, the petitioner ought to have been doubly conscious before getting pregnant again.

Despite the oral chastisement, the Bench ended up taking a lenient view of the matter and directed the constitution of a medical board by the AIIMS to assess the medical condition of the petitioner.

It directed the woman to remain present before the medical board on October 6 and listed the matter for further consideration on October 9.

What has caused the commotion?

On October 9, the Bench examined the opinion of the medical board. In its report, dated October 6, the medical board had opined: "The baby is viable and has a reasonable chance of survival. The chances of postpartum psychosis, of which the couple is worried of, are present even following delivery. 

"The mother is a previous 2 LSCS and the chances of complications due to hysterectomy are there at this gestation. In such a scenario, the termination of pregnancy may be reconsidered. The option of antenatal care and delivery at AIIMS, New Delhi has been discussed with the couple."

On October 9, the Bench interacted with the petitioner and her husband. They remained reluctant to continue with the pregnancy, stating that they are not only worried about the petitioner's health— mental, physical and psychological— but also the fact that she has been under treatment for depression and has been prescribed strong medication which could have had an adverse impact on the health of the foetus.

The Bench on October 9 thus allowed the petitioner to terminate the pregnancy.

However, on October 10, Dr K. Aparna Sharma, professor, department of obstetrics and gynaecology, AIIMS, sent an email to the Additional Solicitor General (AG) Aishwarya Bhati stating that: "As the baby is currently viable (will show signs of life and have a strong possibility of survival), we will need a directive from the Supreme Court on whether a foeticide (stopping the foetal heart) can be done before the termination of pregnancy. We perform this procedure for a foetus which has abnormal development, but generally it is not done in a normal foetus."

The mail also stated: "If foeticide is not performed, this is not a termination, but a preterm delivery where the baby born will be provided treatment and care. A baby who is born preterm and also of such low birth weight will have a long stay in the intensive care unit, with a high possibility of immediate and long-term physical and mental disability which will seriously jeopardise the quality of life of the child.

"In such a scenario, a directive needs to be given as to what is to be done with the baby? If the parents agree to keep the child, this will take a major physical, mental, emotional and financial toll on the couple."

This triggered the Union of India to file the recall application against the October 9 Order of the division Bench. ASG Bhati mentioned the matter before the Chief Justice of India Dr D.Y. Chandrachud CJI on October 10, who listed it on October 11 before the Bench that passed the Order for recall.

Split in the Bench

On October 11, the Bench split over the recall application.

Justice Kohli said in view of the mail received from the AIIMS doctor her judicial conscience did not permit her to allow the petitioner to terminate the pregnancy. However, she took strong exception to Professor Sharma sending the mail to ASG Bhati.

"It is rather unfortunate that the aforesaid email has been addressed to the learned Additional Solicitor General on the very next day of the Order passed by this Court on October 9, 2023, on which date, the report dated October, 6 2023 received from the medical board was duly taken note of by this court.

"Having regard to the fact that the professor who has sent the email was a part of the same medical board, all that is now being stated and pointed out in the email dated October 10, 2023, ought to have been made a part of the earlier report, for this court to have had a correct and clear perspective of the matter, which would have perhaps had a different connotation. The initial report itself was fairly hedged and ambiguous on the aspects that are now being sought to be highlighted in the email," Justice Kohli said.

Justice Nagarathna refused to subscribe to the view taken by Justice Kohli. Justice Nagarathna observed that the petitioner had remained determined about her decision not only on October 9 but also on October 10 that she did not wish to carry her pregnancy to term. Justice Nagarthana held that the petitioner's decision must be respected by the court.

"Courts cannot substitute their view in the matter with that of the decision of the petitioner," Justice Nagarathna held.

Justice Nagarathna added that whether the child to be born is viable or if the child would be a healthy child are not relevant considerations.

"What is to be focused upon is, whether the pregnant lady intends to give birth to a child or not," she said.

Justice Nagarathna also observed that a foetus is dependent on the mother and cannot be recognised as a separate, individual personality from the mother as its very existence is owed to the mother.

"It would be incongruous to conclude that the foetus has a separate identity from the mother and in spite of the physical or mental health of a mother being under threat, she will have to continue her pregnancy until the foetus is born which would endanger her delicate health.

"Such a position is contrary to Articles 21 and 15(3) of the Constitution of India which recognise the right to life and liberty, and particularly those of a woman," she added.

Justice Nagarathna also took into consideration the delicate mental health of the petitioner (postpartum depression after the birth of the second child) for which she is under medication.

"The petitioner has thought of not only her health condition but also the socio-economic condition in which she and her family are placed and has realised that an addition to the family would be a burden to the family," Justice Nagarathna observed.

Justice Nagarthna also berated the AIIMS for seeking a recall of the court's Order. She said it was expected of the doctors at AIIMS that they would understand the import of the Order of the court and act accordingly and not seek clarification from the court on medical procedures.

"The contents of the email sent on October 10, 2023 were known to the doctors even on October 6, 2023 when the report was submitted by the medical board, AIIMS. Moreover, the email sent to the learned ASG on October 10, 2023 is only by one of the doctors. It is not known as to whether the said email was sent on behalf of the entire medical board or not," Justice Nagarathna remarked.

The Bench eventually referred the matter to the CJI to form a larger Bench since the division Bench could not agree on whether the petitioner should be allowed to terminate her pregnancy.

What has the three-judge Bench said?

On Thursday, the three-judge Bench of the Supreme Court observed that although women's autonomy undoubtedly is paramount, the rights of the unborn child are equally important, adding that it could not direct doctors to commit an act of foeticide.

The Bench directed the lawyer for the woman and Additional Solicitor General (ASG) Aishwarya Bhati, who appeared for the Union of India, to once again talk to the woman and get back to the court on Friday at 10:30 a.m.

The CJI, leading the three-judge Bench, enquired of the advocate for the petitioner as to why could not the petitioner wait for a few more weeks because then the child would have less chance of being born with severe disabilities.

The CJI also posed a question to the petitioner's lawyer whether he wanted the court to direct the All India Institute of Medical Sciences (AIIMS), New Delhi to stop the foetal heart which amounts to foeticide. The lawyers responded negatively.

The CJI then asked whether the petitioner wanted her child to be born alive.

"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," the CJI remarked.

The CJI also wondered how an unborn child could be put to death under a judicial Order.

The advocate for the petitioner sought to submit that the petitioner is suffering from postpartum depression. The Bench, however, said it needed to look at the other facts too.

The Bench wondered how it took the woman 24 weeks to realise that she was pregnant. The advocate submitted that the woman is not a very well educated woman, she is poor, suffers from postpartum psychosis, and is not able to take care of the two children she already has.

ASG Bhati submitted that the petitioner herself was not sure of the best course of action.

"She is in a very vulnerable state. We also tried to counsel her. At one stage she agreed to carry the pregnancy to term. We told her the baby could be given up for adoption, and AIIMS could take care of her mental health issues," Bhati told the Bench.

ASG Bhati added that reproductive rights is not absolute. They are circumscribed by laws made by the Parliament. The law has not been challenged in this case.

What does the law say?

Section 3(2)(a) of the Medical Termination of Pregnancy (MTP) Act, 1971 permits the termination of pregnancy where the length of pregnancy does not exceed twenty weeks.

Clause (b) of this subsection permits termination where the length of pregnancy exceeds twenty weeks but does not exceed twenty-four weeks for such categories of women "as may be prescribed by Rules made under this Act".

However, an opinion must be formed by not less than two registered medical practitioners that inter alia "the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health".

The Rules framed under the MTP Act, 1971 for the purpose of "categories of women" as mentioned in Section 3(2)(b) includes categories of women such as divorcees, widows, minors, disabled and mentally ill women and survivors of sexual assault or rape.

Initially, the Rules excluded unmarried women from its purview. However, the Supreme Court in X versus Principal Secretary Health, Delhi, interpreted Rule 3B to include 'unmarried women' as well.