Yesterday, a division Bench of the Supreme Court had allowed medical termination of the pregnancy. Today, the Union government has approached the Chief Justice of India with a recall application.
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A married woman who approached the Supreme Court for medical termination of her pregnancy has found herself caught in the midst of a dramatic, rapidly developing story which has the potential of ending in a raging controversy.
It all started on October 5, when a 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, which has by now crossed 24 weeks, on the ground that she is suffering from ‘lactational amenorrhea’ and from depression due to which she is unwilling to continue with the pregnancy.
The Bench admonished the woman for seeking to terminate a 24-week-old pregnancy, observing that it was not a case of forced pregnancy but a voluntary conception.
The Bench also 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.
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 All India Institute of Medical Sciences (AIIMS), New Delhi 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.
Yesterday, the Bench passed an Order permitting the woman to terminate her pregnancy. The Bench directed the petitioner, a mother of two children, to visit the Obstetrics and Gynaecology Department of AIIMS, New Delhi on October 10, that is today, to undergo the procedure of termination of pregnancy.
The Bench observed that it recognises the right of a woman over her body and the fact that if an unwarranted pregnancy results in a child being brought into the world, a large part of the responsibility of rearing such a child will fall on the shoulder of the petitioner, for which she does not consider herself fit at this point.
The Bench said it would release its detailed reasons for allowing the petition later.
Today, the Union government approached the Chief Justice of India, Dr D.Y. Chandrachud, seeking a recall of the Order citing that it was recommended by the court despite a medical board saying that the baby had a viable chance of being born.
The CJI-led Bench asked Additional Solicitor General Aishwarya Bhati to file a formal application seeking recall of the court’s Order and that he would constitute a Bench which passed the Order tomorrow morning to consider the recall application.
The CJI also asked Bhati to keep the termination of pregnancy on hold for now. Bhati submitted that if the Order was not recalled, the doctors would have to commit foeticide.
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.
