26-week pregnancy abortion plea: SC asks AIIMS for fresh report on condition of woman, foetus

The bench, also comprising Justices J B Pardiwala and Manoj Misra, noted that the medical prescriptions of the woman, who claimed to have been taking medicines for “postpartum psychosis” were “silent” on what her exact ailment was and asked the All India Institute of Medical Sciences (AIIMS), Delhi, to submit a fresh report on the condition of the petitioner and the foetus. The court will consider the matter again on October 16.

A two-judge bench of the Supreme Court had on October 9 allowed the woman to undergo the procedure. However, a day later, one of the judges changed her mind after AIIMS, where the woman was to undergo the medical termination of pregnancy, sought certain clarifications regarding how it should proceed given that the foetus appeared to be normal and viable. The matter was then placed before the three-judge bench.

On Thursday, the three-judge bench asked Additional Solicitor General Aishwarya Bhati, who appeared for the Centre, to talk to the woman to see if she can be convinced to wait a few weeks more so that the foetus is mentally and physically healthy. AIIMS had reported that the foetus had a high chance of survival, but if extracted now it may develop mental or physical deformities and that it would be better to wait for a few more weeks.

On Friday, the ASG told the bench, “Unfortunately we have still not been able to convince her (the woman). She is still vulnerable.”

Bhati said the world over there were pro-choice and pro-life countries and they have elevated the status of unborn children in their constitution to “protected citizens”. She said after a thorough research “we have not found a single country in the world which goes beyond 24 weeks, and that’s for a good reason, reason that’s in consonance with nature, medical ethics”. She said that India is a “pro-choice country”.

Elaborating on the submission, the CJI said, “Parliament has enacted a law (Medical Termination of Pregnancy Act). That law reflects the balance between pro-life and pro-choice. Because Parliament, in putting that cut off (of 24 weeks), would have been aware of all the different considerations that had to be balanced. And therefore Parliament says 20 weeks extendable to 24 weeks… So that’s a cut-off which Parliament has imposed bearing in mind both the pro-life and pro-choice aspects. But as you say our legislation is predominantly pro-choice because we respect the autonomy of the woman… It gives almost untrammelled discretion to the woman within the period of time that is provided… Now we have equated married and unmarried women finding that there is no real intelligible differentia in distinguishing between them.”

The ASG said that the “MTP Act has a salutary public purpose and a sacrosanct objective of furthering reproductive autonomy of the woman by balancing the right of a viable and healthy unborn child. So the protection comes once the child is viable and healthy”.

Stating that the debate in the instant case is not pro-choice or pro-life, she said it is whether pro-choice can go to the extent of extinguishing life.

The CJI pointed out that the MTP Act allows 24 weeks to be breached if it is to protect the life of the mother or in case of foetal abnormalities. He then referred to the Ireland case where an Indian woman passed away as she could not terminate her pregnancy because abortion was banned under that country’s prevailing law.

“Here there is absolutely no restraint if the life of a mother is concerned. Gives primacy to the life of the mother,” said the CJI.

On Bhati’s submission that pro-choice is not to be read as right to extinguish life, the CJI said, “There also, it depends on how you define life. When does life come into being?… Life which is viable outside the womb, or does life mean something even within the womb too…?”

The law officer said in the facts of the case, the medical board has also said no to MTP now and its opinion should be given primacy.

Advocate Amit Mishra appearing for the petitioner mentioned her medical condition and said she had been suffering from “heavy symptoms of postpartum psychosis”. The woman had been having medicines for it since October 2022, and is suicidal and has tendencies to even harm her kids, he submitted.

The bench, which went through the woman’s medical prescriptions, said they were silent on what exactly was her ailment.

“The handwritten prescription also does not say anything. So-called November prescription does not even refer to the fact that the patient had come with a particular ailment,” the CJI pointed out.

Advocate Mishra, however, said the petitioner should not be made to suffer for that.

“You are right. But it also casts doubt on the legitimacy of the prescription. Or is this all done in September 2023 to bolster the case? You have to also read between the lines,” said the CJI.

The court asked AIIMS to inform whether the foetus is suffering from any substantial abnormality as provided by the MTP Act. It also directed the Institute to examine “whether the continuance of the pregnancy would be jeopardised by the drugs prescribed for alleged conditions from which the woman is suffering”, evaluate her mental and physical condition, whether she is indeed suffering from postpartum psychosis, “whether any alternate administration of medication consistent with the pregnancy would be available so as to neither jeopardise the well-being of the petitioner or the foetus”.