Supreme Court division bench was split over a married woman’s plea to terminate her pregnancy despite medical reports suggesting that the baby had a viable chance of being born. Justice Hima Kohli said her conscience did not permit her to allow the abortion, while Justice BV Nagarathana stood by her previous order allowing the abortion.
The matter will now be heard by a larger bench.
The Centre on October 10 sought a recall of the Supreme Court’s October 9 order allowing abortion after AIIMS Delhi - which was tasked with executing the termination of the pregnancy - said there was a viable chance for the baby's survival. AIIMS Delhi said that since the foetus was viable, it would need a directive to conduct fetecide – where the fetal heart is stopped.
The gynecology department, however, said that if born preterm, the baby would require extensive care in the ICU and there was a high probability of the child suffering from mental or physical disabilities.
The hearing today, was to ask the woman seeking the abortion if she was OK with carrying the baby to term to give it a chance. If she chose not to keep the baby, then she could put it up for adoption. The married woman had sought to terminate her 26-week foetus as she is suffering from post-partum depression and is not in a mental, emotional, or financial state to raise and care for a third child. Pregnancy is rare when a mother is breastfeeding and this is a rare case, the Court observed after the woman submitted that contraception had failed.
The bench interacted with the woman and her husband virtually and placed the facts before her. “She is determined (to go through with the abortion),” Justice BV Nagarathana said after the woman asserted that she was not keen to continue with the pregnancy.
The top court’s decision allowing the termination came after an extensive interaction in open court. “Get an affidavit from her after explaining the situation,” the top court told the lady’s lawyer after noting that the husband, though armed with all the facts of the case had not apprised his wife of the same.
“Explain to her in vernacular if you must, we do not know how much she has been told,” Justice Hima Kohli said.
While interacting with the couple virtually, the top court noted the woman’s determination to continue with the termination of the pregnancy observing that “at the end of the day, it was her choice” and it “would not step on her shoes”.
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The Supreme Court bench comprising Justices Hima Kohli and BV Nagarathana interacted with the couple via virtual hearing. The case was a real conundrum, the bench observed after hearing all the facts in this matter.
According to the AIIMS Delhi gynecological department, there was a viable chance for the baby to be born. “In case fetecide is not done, there is a possibility that a preterm baby would be born,” the email said.
However, the chances for the baby’s survival, sans any mental or physical disability, would greatly improve if the gestation period was extended by another two weeks at least.
“Can you carry the child to term?” the bench asked the lady assuring her that the government and the hospital would look after her with the medical bills taken care of.
“No ma’am,” lady replied.
“Till when can you carry the child? At least two more weeks? The bench said explaining that the child would have a greater chance at survival.
“No ma’am, I can’t,” the lady asserted, disagreeing with her husband who agreed to carrying the child to term.
The top court then said that ultimately the mother has to decide since she was the one carrying the child.
“We can’t force her,” the bench said. “This is psychologically more difficult for the mother,” giving up a child as opposed to delivering a deceased baby.
Do not appreciate recall order
The top court expressed its displeasure with the gynecological department at AIIMS Delhi, for its “ambiguous report” in this matter. “It’s a real conundrum,” the bench noted after noting the facts of the case.
“This is not acceptable,” the top court said noting that the hospital’s second email suggesting viability of the baby could have been part of the original report. “All this (the facts of the case) could’ve been in front of the lady. We wasted so much time,” the court said. “Every day counts,” the court said pointing out that the case was before them since October 6.
"Our decision (allowing termination of the pregnancy) was based on the hospital's medical report. Now you say there is a viable foetus. Which court will rule to stop a fetal heart? the bench observed.
“There should not be any gray area in issues like this, there cannot be a gray area,” the court noted.
“We don’t appreciate this recall order. We passed an order after hearing everybody,” the bench noted at the conclusion of this case.
Editors Note: This story has been edited to reflect the Supreme Court's final decision of a split verdict. The earlier copy erroneously reported that the SC had allowed the abortion plea.
