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Autonomy of mother triumphs, but can child be put to death on judicial order? Supreme Court in abortion plea

The Supreme Court on Thursday found itself torn on whether it should permit a married woman’s plea to abort a 26-week pregnancy after a doctor indicated that the foetus could be born with a heartbeat if it is delivered at present. 

The matter was taken up this afternoon by a three-judge Bench headed by Chief Justice of India (CJI) DY Chandrachud, who broke a seven-judge Constitution Bench that was hearing another case to hear the abortion plea. 

During the hearing today, CJI Chandrachud, who sat with Justices JB Pardiwalaand Manoj Misra, said that the Court must balance the rights of the unborn child with the choice of the mother. 

Given the advanced stage of the pregnancy, he also questioned if the only course available was to put the unborn child “to death under a judicial order.”

“We have to balance the rights of the unborn child. Of course, the autonomy of the mother triumphs, but here nobody is appearing for the child. How do we balance the rights of the child? Fact of the matter remains, it is not just a foetus, it is a living viable foetus. If given birth to, it can survive outside. If delivered now, it will have serious medical issues, so why not wait for two more weeks? She (pregnant woman) does not have to keep the child. To put the child to death is the only option, and how can the child be put to death under a judicial order?” the CJI said.

The Court, however, was unable to decide on the matter today will hear it again tomorrow.

The matter involves a married couple who had conceived a third time. The pregnancy had crossed the legally permissible limit of 24 weeks for abortions under the Medical Termination of Pregnancy Act, 1971 (MTP Act).

The Court was informed that the mother was not aware that she had conceived again since she was undergoing lactational amenorrhea (also known as post-partum infertility, during which time there may be an absence of menstruation for lactating mothers). The pregnant woman also suffered from post-partum depression, the Court was told.

The case was taken up by the three-judge Bench today after a Division Bench of Justices Hima Kohli and BV Nagarathna delivered a split verdict in the matter.

While Justice Kohli was not in favour of abortion, Justice Nagarathna opined that the view of the pregnant woman should be respected despite objections that the foetus would be born alive.

During the hearing today, Additional Solicitor General Aishwarya Bhati apprised the three-judge Bench that a professor from AIIMS had opined that the foetus showed strong signs of life.

As such, concerns were raised on whether a judicial order should be passed to conduct foeticide, a procedure typically used for abnormal foetuses.

The ASG argued that in this case, the procedure would be more like a pre-term delivery than an abortion. She further contended that prioritizing the mother’s opinion alone would be challenging and chaotic for the nation.

The pregnant woman’s lawyers, meanwhile, informed the judges that continuing the pregnancy was risky considering the woman’s fragile mental state. The Court was told that the woman also appeared to be suicidal.

The matter was marred by controversy, with the previous Bench pulling up the Central government for approaching CJI Chandrachud with an oral request to recall an earlier order passed by the two judges to allow the termination of a 26-week pregnancy.

Notably, the government had also not filed a formal application when the oral mentioning was made before the CJI yesterday.

Taking exception to such conduct, Justice Nagarathna verbally remarked,

In the absence of any application being filed or pleadings, how can you seek that a three-judge bench hear an intra-court appeal? Without filing a recall application you moved the honourable Chief Justice of India? I certainly do not support this. Every bench here is the Supreme Court…There is a way to overturn a court order, not like this. Why after the order was passed? It is not like we did not hear you. She (the pregnant woman) is under more stress now because of all this.

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