New Delhi: The Supreme Court division bench comprising Justices Hima Kohli and B.V. Nagarathna heard the Union government’s application for recall of its October 10 order directing the termination of the pregnancy of a married woman on Wednesday, October 11. The bench, however, put on record the split among the two judges on whether the woman’s right to seek termination of her pregnancy could be recognised in the 27th week of gestation.
Justice Kohli observed that her judicial conscience could not permit ending the life of the unborn child, whose delivery was found viable by the Medical Board of the All India Institute of Medical Sciences (AIIMS), New Delhi.
Justice Kohli was persuaded by the additional solicitor general Aishwarya Bhati, who submitted that the bench, on Wednesday, ought not to be concerned about the future of the child, if born alive, but should only decide the question of whether the petitioner-mother’s right to terminate her pregnancy in the 27th week could be recognised.
An email sent by one of the doctors on the AIIMS Medical Board pointed out that if the pregnancy is to be terminated as ordered by the court on Tuesday, the child might be born alive, but with the risk of severe physical or mental disability.
Although Justice Kohli expressed her disappointment that the doctor concerned did not share her opinion ahead of the bench’s Tuesday order directing the termination of the pregnancy, she was inclined to consider it in order to recall that order, as sought by the Union government.
This led the bench to talk afresh to the petitioner-woman, who was present in the court during the hearing on Wednesday. Although she had submitted an affidavit saying she was not inclined to continue the pregnancy, the bench confronted her with the doctor’s opinion and sought to know whether she could carry the pregnancy for one or two more weeks, if it ensured the delivery of a healthy child.
While her husband was agreeable to continue with the pregnancy for one or two more weeks as recommended by the doctor, the petitioner-woman clearly refused to do so, and this convinced Justice Nagarathna that her right over her body must be respected at all costs.
Bhati, however, told the bench that the woman’s right to privacy and bodily autonomy ends the moment the delivery of a healthy child is found viable by the doctors. She also disclosed the State’s readiness to take the responsibility of rearing the child, as the petitioner-mother was not inclined to do so because of the limitations of her mental health and of the family’s financial means to support another child.
Earlier, the woman had told the 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).
Justice Nagarathna, however, pointed to the petitioner’s unwillingness to continue the pregnancy, even in the event of the state coming forward to rear the child through its adoption agency.
As a result, while Justice Kohli accepted the Union government’s recall application of the bench’s previous order, Justice Nagarathna dismissed it.
Justice Nagarathna also expressed her disappointment that the Union government mentioned the recall application before the bench of the Chief Justice of India after the hearing in his court was over at 4 pm on Tuesday. She termed it as an intra-court appeal, which could set a poor legal precedent within the court. Bhati, however, apologised for her conduct, as she claimed she could not mention it before the same bench on Tuesday because she was arguing another case before another bench.
The immediate precedent
Even as the delay caused by Wednesday’s split among the judges is likely to be of concern to the petitioner, the immediate precedent laid down by the court in another case could have been followed by the Kohli-Nagarathna bench in this case as well. But that was not considered during the hearing.
In XYZ vs State of Gujarat, the Supreme Court bench of Justices Nagarathna and Ujjal Bhuyan had on August 21 held that a woman alone has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion.
In this case, the report of the medical board, constituted by the Gujarat high court, had stated that although there is no congenital abnormality in the foetus, the medical termination of the pregnancy could only be done if the court permits, after taking the consent of the appellant and explaining potential risk to maternal health. The Supreme Court noted that the rape survivor in this case was clinically fit for the termination procedure and the MTP would not adversely affect child-bearing capacity and her general health in future.
As in the present case, in XYZ vs State of Gujarat, the age of the foetus was almost 27 weeks when the court examined the plea for termination of pregnancy.
Again as in the present case, the likelihood of adverse impact of the continuance of the pregnancy on the mother’s mental health was considered a relevant factor by the Supreme Court. It may be argued that in XYZ vs State of Gujarat, the adverse impact on the mental health of the mother was anticipated because she was a rape survivor and the court considered the resultant trauma. In the present case, however, to Justice Nagarathna, the fact that the petitioner is a married woman, and it is a case of voluntary pregnancy, did not come in the way of her conclusion that there was a risk of adverse impact on her mental health if the pregnancy continued beyond 27 weeks.
Justice Kohli, on the contrary, was persuaded by the Union government’s contention that permitting the MTP of a married woman beyond 27 weeks – when the delivery of a healthy child is found viable by the doctors – may set a wrong precedent and that there may be others who could exploit it and seek MTP beyond 27 weeks on the ground of the mother’s “mental health concerns”, notwithstanding the possibility of giving away the child for adoption.
How the new bench would deal with these delicate issues would be interesting to watch.
