New Delhi: The doctors at the All India Institute of Medical Sciences (AIIMS) New Delhi on Tuesday, October 10, expressed their inability to terminate a viable 26-week pregnancy of a married mother, as directed by the Supreme Court on Monday.
After an hour-long hearing which involved an online interaction with the petitioner-mother and her husband, the Supreme Court bench of Justices Hima Kohli and B.V.Nagarathna had on Monday allowed the mother to get her pregnancy terminated on mental health grounds, despite the AIIMS Medical Board advising against abortion in view of its finding that it is a viable pregnancy.
The additional solicitor general Aishwarya Bhati sought Chief Justice of India (CJI) D.Y. Chandrachud’s directions for recall of the order passed by the Kohli-Nagarathna bench on Monday, in view of the AIIMS doctors’ moral dilemma to terminate a viable pregnancy.
The CJI, after a brief hearing at 4 pm, asked Bhati to submit a written application for recall so that the same bench which passed the order for abortion on Monday could be requested to consider it on Wednesday morning.
On Monday, the Supreme Court held an unprecedented hearing twice – once in the morning and again in the afternoon – to hear the pregnant married woman who did not want to proceed with her third pregnancy on the grounds that she would not be mentally fit to foster the child.
The bench of Justices Kohli and Nagarathna spoke to the petitioner-mother and her husband online, to ascertain her wishes and satisfy the court that the couple voluntarily opted to abort the child, despite the AIIMS Medical Board certifying that the pregnancy is viable.
The petitioner-woman who sought the court’s intervention to abort her pregnancy in view of Section 3(2) of the Medical Termination of Pregnancy (MTP) Act, which permits abortion only before 20 weeks of pregnancy on the ground of “risk of grave injury to the mother’s physical or mental health or on the ground that there is a substantial risk that the child would suffer from physical or mental abnormalities to be seriously handicapped”.
The petitioner told the Supreme Court that she was suffering from lactational amenorrhea (which causes a temporary absence of menstruation in lactating mothers) and post-partum depression (a medical condition that many women experience after having a baby, with feelings of sadness, anxiety and tiredness). The couple is not in a position to raise a third child because of family and financial conditions, the petitioner said.
The bench took note of the fact that the first child of the couple is four years old, while the second child is one year old.
At the outset, the bench made it clear that it was concerned more about the mother’s health and not that of the child. At the same time, it wanted to understand the context, that is, this is the case of a married couple, and not one of forced pregnancy.
The bench added that it had no issue if the mother wanted to continue her pregnancy, but it underlined that she must have the willpower and emotional strength to do so.
The bench observed that the state is not going to help her after the delivery of the child, which is a result of the failure of family planning methods.
During the morning hearing, the bench observed that the pregnancy is sought to be aborted to avoid giving birth to an unwanted child. The bench decided to give time till 1 pm to ascertain whether the mother wants to continue her pregnancy.
At 1 pm, the petitioner made it clear to the bench through an online interaction that she was in favour of abortion, despite doctors’ advice that she could give the child for adoption after delivery since the pregnancy is viable.
The bench took note of the contention that after the 25th week of pregnancy, the choice of the mother could not be exercised at the cost of a viable baby. But the bench emphasised that giving the child to adoption should also be the choice of the petitioner-mother. In this case, the mother clearly said no to giving the child to adoption.
The bench found merit in the petitioner’s argument through her counsel that she was asking for her rights under Article 21 (protection of life and personal liberty), which overrides the MTP Act. The additional solicitor general, Aishwarya Bhati, submitted that the bench had to balance the autonomy of the woman over her body with the right of the viable baby.
The bench took note of the opinion of the Medical Board that the baby is viable, and can survive outside the mother’s womb, and there is a reasonable chance of survival of the child.
AIIMS, Delhi. Photo: PTI
But the bench wanted to know whether there is a reasonable chance of living for the child with dignity and nutrition and whether the couple can provide that. “We can’t force the petitioner-mother to give the child up for adoption,” the bench told the ASG, who contended that her right of autonomy ends once the fetus is viable.
The bench noted that although the Medical Board opined that the child can survive if born, there is a chance of harm to the child because of the medicine that the petitioner-mother has been taking to treat her depression.
The husband told the bench that if she had to give birth to the child, they would rear it, and not give it for adoption, though he is concerned about her depression. “My wife should not suffer, and the child should not suffer from any abnormalities,” he told the bench. He said that as the Medical Board is silent on the child’s condition, they cannot take care of the child if it is not healthy. As there is a risk that the child, if born, may be unwell, the couple preferred to abort the fetus.
Balancing of rights
The bench told the ASG that there is no competing right of an unborn child to be balanced with that of the petitioner-mother.
The bench held that it is the responsibility of the citizens to adopt family planning methods to avoid giving birth to an unwanted child. The couple has a responsibility and can’t produce children like this, the bench observed, as it constitutes a burden on the country.
The ASG pleaded with the bench to adjourn the hearing till Tuesday, to enable her to make submissions on balancing the right to life with the autonomy of the woman over her body. The ASG submitted that there can be no absolute right of autonomy of a woman over her body.
But the bench disagreed and said even a day’s delay would mean a setback to the mother. The bench was of the view that the child may not survive, if born, even if it is kept in incubation. Ultimately, the bench decided to give priority to the petitioner-mother’s mental health.
The bench reasoned that it has expansively interpreted Section 5 of the MTP Act as the term “mental health” has a broader connotation than “mental illness”. Due to a delay in recognising pregnancy and changes in life circumstances, the petitioner’s pregnancy has become unwanted and unviable, the bench concluded.
The bench held that it took into account the decisional autonomy of the mother – including her physical, mental, financial and socio-economic background. The court has recognised the right of a woman over her body, and an unwanted child results in imposing the responsibility of rearing on the mother, when she does not consider herself fit to bear the onerous responsibility, the bench concluded.
The bench directed that in the event of the procedure for abortion to be carried out on Tuesday morning resulting in the birth of the live child, it should be kept in incubation, and may be given in adoption, if advisable.
The bench made it clear that the Supreme Court is reluctant to entertain petitions under Article 32, when the petitioner had the option of approaching the high court for an efficacious remedy under Article 226 of the constitution. However, as time was running out, it was deemed appropriate to entertain her petition, the bench said.
The Central Wing of the Supreme Court of India. Photo: Subhashish Panigrahi/Wikimedia Commons, CC BY-SA 4.0
Lessons on family planning
The bench noted that the present case has valuable lessons for married couples, who are expected to be more cautious, in preventing unplanned pregnancies by adopting family planning methods. As India is the most populated country in the world, striving to achieve socio-economic development within the limited means and resources that the state has, every couple has equal rights and obligations including that of rearing children with access to nutrition, good education, the court said.
The bench underlined the need to disseminate all the schemes floated by Central and state family planning agencies to avoid unwanted pregnancies in married couples so that the absence of adoption of adequate family planning measures does not result in a case like this. The bench learnt that the couple in this case was not aware of family planning, and didn’t take adequate care to prevent an unwanted pregnancy.
The bench noted the silver lining in this case, as the mother-in-law of the petitioner supports the daughter-in-law in rearing her children. “In today’s urban nuclear family, joint family is mostly missing,” the bench noted in its order.
Although it is not a forced pregnancy, the petitioner-mother has valid reasons to avoid an unwanted pregnancy, and therefore, the bench directed AIIMS to carry out her abortion on Tuesday morning, as desired by her.
“For the reasons to be recorded separately, we allow the present writ petition with a direction issued to the petitioner to visit the Obstetrics and Gynaecology Department, AIIMS, New Delhi tomorrow morning, i.e., on 10th October, 2023. AIIMS shall admit the petitioner for her to undergo the procedure of termination of her pregnancy at the earliest with follow up as may be advised by the treating doctors.”
