The Supreme Court on Monday refused permission to a married woman to abort her third pregnancy on the grounds that allowing the petitioner to terminate the 26-week-old foetus would violate Sections 3 and 5 of the Medical Termination of Pregnancy Act.

The Bench of Chief Justice of India (CJI) D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra noted that the All India Institute of Medical Sciences (AIIMS), Delhi, after reporting that the foetus was healthy and viable, had sought for a clarification from the Court on whether they could proceed to stop the heart of the foetus for termination of pregnancy. 

It said this court was averse to passing such a direction, adding that the petitioner also did not wish to do the same.

The Apex Court further pointed out that the only two exceptions to terminate a pregnancy beyond the outer limit of 24 weeks as per the MTP Act were that there was an immediate threat to the mother and that it was a case of foetal abnormality. 

Both these exceptions were not there in the present case, it said and directed the State to bear the cost of all medical procedure in the matter. 

The Bench further said that the petitioner would have the ultimate say on whether she wanted to keep the child on being born or give it up for adoption.

On October 12, the Apex Court had observed that while it was important to consider the rights of a woman to autonomy, it could not become oblivious to the rights of an unborn child.

The three-judge Bench of Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra expressed serious concerns about allowing the application, noting that permitting termination at this stage, after the medical report has said that the foetus has a high chance of survival, may amount to foeticide.

Appearing for the Central government, Additional Solicitor General (ASG) Aishwarya Bhati  argued that the ‘exceptional’ circumstances which allowed the termination of pregnancy post 24 weeks under the Medical Termination of Pregnancy (threat to life of mother or foetal abnormality) did not exist in the case at hand. 

As per Bhati, a mother’s right of decisional autonomy or other reproductive rights were not absolute in nature and were circumscribed by the law made by Parliament. In the present case, the law had not been challenged. 

Regarding the X judgement relied upon, the ASG said in that case, there was a challenge to the rule which prevented an unmarried woman from seeking termination after 24 weeks.

She referred to the Supreme Court which declared that unmarried women were also entitled to seek abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship. 

The ASG said in that case, Rule 3B of the Medical Termination of Pregnancy Rules, which differentiated between married and unmarried women, was challenged. The Apex Court had held that the exclusion of unmarried women who conceived out of live-in relationship from the Rules was unconstitutional, she added.

The ASG, while submitting the AIIMS’ medical board’s opinion, said that as per the current status of the foetus, it had a reasonable chance of survival. Carrying out the termination would amount to a foeticide, she noted. 

She said the petitioner was herself not sure of termination and was in a ‘vulnerable’ state. She said the government had also tried to counsel the petitioner, who had agreed at one stage to carry the full-term pregnancy and give the baby for adoption. The ASG assured the Apex Court that AIIMS would take care of mental health issues of the baby and the mother.

The CJI asked the Counsel for the petitioner whether she wanted the doctors to be directed to close the foetal heart?

The counsel apprised the Apex Court that the petitioner did not want the child to be aborted at present, but was seeking permission to deliver the child through C-section now, rather than waiting till the full term.

The Supreme Court on Thursday observed that while it was important to consider the rights of a woman to autonomy, it could not become oblivious to the rights of an unborn child.

The three-judge Bench of Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra made the observation while hearing the plea of a married woman seeking medical termination of her 26-weeks pregnancy.

The Bench decided to hear the matter tomorrow at 10:30 am.

The Apex Court expressed serious concerns about allowing the application, noting that permitting termination at this stage, after the medical report has said that the foetus has a high chance of survival, may amount to foeticide.

Appearing for the Central government, Additional Solicitor General (ASG) Aishwarya Bhati  argued that the ‘exceptional’ circumstances which allowed the termination of pregnancy post 24 weeks under the Medical Termination of Pregnancy (threat to life of mother or foetal abnormality) did not exist in the case at hand. 

As per Bhati, a mother’s right of decisional autonomy or other reproductive rights were not absolute in nature and were circumscribed by the law made by Parliament. In the present case, the law had not been challenged. 

Regarding the X judgement relied upon, the ASG said in that case, there was a challenge to the rule which prevented an unmarried woman from seeking termination after 24 weeks.

She referred to the Supreme Court which declared that unmarried women were also entitled to seek abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship. 

The ASG said in that case, Rule 3B of the Medical Termination of Pregnancy Rules, which differentiated between married and unmarried women, was challenged. The Apex Court had held that the exclusion of unmarried women who conceived out of live-in relationship from the Rules was unconstitutional, she added.

The ASG, while submitting the AIIMS’ medical board’s opinion, said that as per the current status of the foetus, it had a reasonable chance of survival. Carrying out the termination would amount to a foeticide, she noted. 

She said the petitioner was herself not sure of termination and was in a ‘vulnerable’ state. She said the government had also tried to counsel the petitioner, who had agreed at one stage to carry the full-term pregnancy and give the baby for adoption. The ASG assured the Apex Court that AIIMS would take care of mental health issues of the baby and the mother.

The CJI asked the Counsel for the petitioner whether she wanted the doctors to be directed to close the foetal heart?

The counsel apprised the Apex Court that the petitioner did not want the child to be aborted at present, but was seeking permission to deliver the child through C-section now, rather than waiting till the full term. 

The Supreme Court on Wednesday referred to a larger bench, the recall application filed by the Central government against the Apex Court order allowing medical termination of 26-week pregnancy of a married woman.

The application was heard by the Bench of Justice Hima Kohli and Justice B.V. Nagarathna. 

While Justice Kohli refused to permit the termination of pregnancy, Justice Nagarathna said she did not find any no reason to interfere with the ‘well-reasoned order’ passed by the Apex Court on October 9. 

The petitioner, who was present in person today, apprised the Court that she did not wish to continue with her pregnancy. 

On October 9, the same Bench had permitted the petitioner, who is a mother of two children, to proceed with medical termination of pregnancy on the grounds that she was suffering from post-partum depression and was not in a position to raise a third child, emotionally, financially and mentally.

Recognising the right of a woman over her body, the Apex Court had noted that if an unwarranted pregnancy resulted in a child being brought into the world, a large part of the responsibility of rearing such a child would fall on the shoulder of the petitioner, who at this point, did not consider herself fit for the same.

The Central government filed a recall application over this order on the grounds that doctors at the All India Institute of Medical Sciences (AIIMS) have said that the foetus had a viable chance of being born.

On October 10, the Bench led by Chief Justice of India (CJI) D.Y. Chandrachud directed AIIMS to hold the medical termination for now, noting that the AIIMS doctors were in a very serious dilemma over the matter.

Appearing for the Union government, Additional Solicitor General (ASG) Aishwarya Bhati said in the application that the termination was recommended by the Apex Court despite the medical board saying that the baby had a viable chance of being born. They would have to conduct a foeticide, she added.

The Supreme Court on Tuesday directed the All India Institute of Medical Sciences (AIIMS) to hold the medical termination of the 26-week pregnancy of a married woman, who was permitted to proceed with the process yesterday.

The Bench led by Chief Justice of India (CJI) D.Y. Chandrachud today took note of the apprehension raised by doctors at the All India Institute of Medical Sciences (AIIMS) that the foetus would have a viable chance of being born, along with the application filed by the Central government seeking recall of the Apex Court order of October 9.

The CJI said that a Bench would be constituted tomorrow to hear the Union government’s recall application.

Appearing for the Union government, Additional Solicitor General (ASG) Aishwarya Bhati said in the application that the termination was recommended by the Apex Court despite the medical board saying that the baby had a viable chance of being born. They would have to conduct a foeticide, she added.

The CJI directed the Centre to file a formal application seeking recall, stating that the same would be placed tomorrow before the Bench that passed the order on October 9.

Noting that the AIIMS doctors were in a very serious dilemma, the CJI told them to hold the medical termination for now.

Earlier on Monday, the Bench of Justice Hima Kohli and Justice B.V. Nagarathna had permitted the petitioner, who is a mother of two children, to proceed with medical termination of pregnancy on the grounds that she was suffering from post-partum depression and was not in a position to raise a third child, emotionally, financially and mentally.

Recognising the right of a woman over her body, the Apex Court had noted that if an unwarranted pregnancy resulted in a child being brought into the world, a large part of the responsibility of rearing such a child would fall on the shoulder of the petitioner, who at this point, did not consider herself fit for the same.

ILNS: The Kerala High Court has permitted a 13-year-old survivor of sexual assault to terminate her 26-week-old pregnancy.

The single-judge bench of Justice Bechu Kurian Thomas on Monday observed that the pregnancy will cause a grave injury to the minor and scar her life. It may even have the possibility of reminding the victim of the rape.

It is obviously not in the interest of the society to have this young victim undergo the trauma of the incident of rape everyday in her life. The anguish that the pregnancy causes to her will be lifelong and she may have to live with the traumatic experience throughout her life. The parents and the siblings will also have to share this trauma throughout their lives, noted the Judge.

The case pertains to a minor, who was taken to a hospital after complaining of stomach pain. After physical examination, the doctor noticed that the girl was almost six months pregnant. Following this, her parents registered a complaint with the police station.

Investigation revealed that the offence was committed by the 14-year-old sibling of the victim and a report in this regard was filed before the Juvenile Justice Board. According to the birth certificate of the girl, her month of birth was July, 2007. The scan report dated April 1, 2021 showed the foetus as 24 weeks and four days old.

Also Read: All High Courts to adopt Draft Rules on criminal practice in 6 months, says Supreme Court

Contending that the petitioner’s daughter was a victim of rape by her own brother, the father of the victim approached the High Court, seeking a direction to terminate the pregnancy of his daughter.

The High Court impleaded the Superintendent of Medical College, Kozhikode as additional fourth respondent and directed him to constitute a Medical Board and report to the High Court, as to whether the medical termination of pregnancy can be performed on the victim. The report was directed to be placed before the High Court for consideration on April 19.

Advocate Rakesh K, Counsel for the Petitioner, contended that the victim was in fact born as a premature child and has other medical conditions, which would also aggravate, if the pregnancy is not terminated. The young age of the victim, the consequences pregnancy will force upon the victim, her parents and even the unborn child, are matters which this Court cannot ignore.

Citing a few judgments of various High Courts, in which the Court had ordered termination of pregnancy exceeding 20 weeks in the case of rape victims who were not mentally prepared to deliver the child, in order to save their lives, the Bench said, “In view of the opinion of the Medical Board that the medical termination of pregnancy can be considered, if the higher risk and facts mentioned in the report are acceptable, this Court elicits the views of the parents of the victim.

Also Read: Chhattisgarh HC suspends normal functioning of Bilaspur District Court

“They also expressed their desire to terminate the pregnancy, taking into account the traumatic experience for the victim as well as the possible genetic disorders that may befall the unborn child due to the close relationship with the alleged offender of the rape. Considering all the above factors, it is declared that the pregnancy of petitioner’s minor daughter is liable to be terminated forthwith,”

-the Court ordered.

It was also directed by the Court to the doctors to take the tissue of the foetus for DNA identification and maintain the same intact for future purposes, “especially due to the fact that a criminal case is pending in the instant case”.