Consistent on woman’s autonomy, but cannot ignore rights of the child, SC says in abortion plea

After a split verdict on aborting a 26-week pregnancy, CJI told lawyers to counsel the petitioner to continue the pregnancy for 8 more weeks

In a hearing concerning the termination of pregnancy of a married woman who is 26 weeks pregnant, the Chief Justice’s Bench asked—how do we balance the rights of an unborn child with that of the mother?

The Court was hearing a plea from a mother of two who had approached the Court on 4 October 2023, seeking termination of her over 24 week pregnancy, citing postpartum depression and economic and emotional hardships. Having undergone treatment for depression, the 27-year old petitioner was further concerned that the medication may have caused deformities in the foetus. 

Justices Hima Kohli and B.V. Nagarathna were at first apprehensive to admit the case at all, pointing out that this was not a case of forced pregnancy, and allowing the parents to approach the Court after the 24 week mark would encourage others to succumb to “cold feet”. On 5 October 2023, they reluctantly ordered the All India Institute of Medical Sciences (AIIMS), New Delhi to constitute a medical board to assess the physical and mental health of the petitioner. 

Dr. Amit Sharma, appearing for the petitioner informed the court that due to ‘Lactational Amenorrhea’, the petitioner was unaware that she was pregnant until after the 24 week mark had crossed. Lactational Amenorrhea refers to the lack of menstruation for the first six months postpartum. This also allows mothers to use breastfeeding as a contraceptive method. The Court noted that it was rare for the mother to conceive when breastfeeding, and ordered a five-member medical board to be constituted. 

On second thoughts…

AIIMS submitted a report on 6 October 2023, stating that there was a reasonable chance that the child would survive outside of the womb. Relying on this report, on 9 October, Justices Kohli and Nagarathna allowed the petitioner to terminate her pregnancy, recognising “the right of a woman over her body.” They also directed that the petitioner undergo the procedure the very next day at AIIMS. 

On 10th October, Additional Solicitor General Aishwarya Bhati received an email from Dr. K. Aparna Sharma, Professor at the Department of Obstetrics and Gynaecology, AIIMS, and member of the Court appointed medical board. She warned that “A baby who is born preterm and also of such low birth weight will have a long stay in intensive care unit, with a high possibility of immediate and long term physical and mental disability which will seriously jeopardise the quality of life of the child.” The email asked the Court “what is to be done with the baby?” 

Bhati swiftly approached the Chief Justice, without a formal application as per court procedure, asking for a recall of the two-judge bench Order. She pointed to the email which explained that there were two paths to choose from—either terminate the pregnancy, which would require foeticide or the stopping of the foetal heart of the child, or deliver a preterm baby which would require treatment and special and vigilant care. 

The Court asked Bhati to file a formal application for recall, and directed that the termination be put on “hold for now”. 

After first granting permission to terminate pregnancy, Justices Kohli and Nagarathna offer divided views

The Chief Justice constituted a special bench comprising Justices Kohli and Nagarathna, who heard the case again on 11 October. In a hearing that morning, Justice Nagarathna was vocally upset about Bhati’s move to approach the CJI directly, without a formal petition. “Every bench of the Supreme Court is the Supreme Court,” she said, concerned that “If the Union of India starts doing this, private parties will also start doing this.”

In the afternoon, the Court heard the case, this time talking to the pregnant mother herself. In an affidavit, the petitioner declared “I have made a willful and conscious decision to medically terminate my pregnancy. I do not want to keep the baby even if it survives”. The bench delivered a split verdict

Though displeased that Dr. Sharma had not made her views known in the AIIMS report, Justice Kohli relied strongly on her email. Justice Kohli wrote that “The initial report itself was fairly hedged and ambiguous” and that the email offered a “correct and clear perspective” on the issues in the case. Her “judicial conscience”, she said, “does not permit the petitioner to terminate the pregnancy.” What that meant with regards to the reproductive rights of women or rights of the child remained unclear in her opinion.

In contrast, Justice Nagarathna relied on the petitioner’s affidavit, calling them a “categorical”, “clear” and “strong determination” of the petitioner to terminate the pregnancy, and to not keep the child if it survives. “…Her decision must be respected”, Justice Nagarathna wrote. She then relied on X v Health & Family Welfare Department (2022) which recognised women’s right to reproductive autonomy. 

Justice Nagarathna further wrote that “The pregnant lady is not interested in continuing with the pregnancy. In such a situation whether the child to be born is viable or if the child would be a healthy child are not relevant considerations.”

The split decision was then placed before the Chief Justice, who formed a three-judge bench comprising himself, and Justices J.B. Pardiwala and Manoj Misra

How do we balance the rights of the child with that of its mother?

In the hearing on 12 October, the CJI’s three-judge bench was forced to face the two paths that Dr. Sharma offered in her email—stopping the foetal heart or delivering the child prematurely, exposing it to lifelong mental and physical deformities.

ASG Bhati argued that reproductive rights was not absolute. In the SC’s judgement in X, the Court had removed the disparity between the rights of unmarried and married women—starkly different from the issue at hand. 

Chief Justice D.Y. Chandrachud first tried to ascertain the petitioner’s request, to understand if the mother wanted the child to be prematurely delivered and put under neonatal care. Counsel for petitioner repeated her disinclination to keep the child even if it survived. The Chief then asked why it took 26 weeks for the petitioner to realise that she didn’t want the child. 

Appearing for the petitioner, Advocate on Record Rahul Sharma tried to convince the Court that the petitioner came from an educationally and economically backward background and was not educated enough to understand family planning. Further, he explained, she was unaware of the pregnancy until after 24 weeks. 

The Chief made it clear that this case was unlike instances where the petitioner is a minor, or victim of sexual assault. Bhati also added that there were no “exceptional circumstances” as stipulated by the Medical Termination of Pregnancy Act, 1971 (threat to life of mother or foetal abnormality) to qualify under the Act. 

The Bench also explained that it was against the Supreme Court’s constitutional mandate to either “kill the child or put it in a state where it is born deformed for life.” Justice Pardiwala laid out the dilemma—the petitioner sought to be “relieved” of the pregnancy today, but was also clear that she did not want the foetus’ heart to be stopped. Against her request to deliver the child pre-term is the expert view that this will lead to mental and physical deformities in the child. CJI Chandrachud added that in India, the “hard truth” was that children with disabilities were less likely to be adopted.

The Bench stated that it would hear the case again tomorrow and issue orders. Meanwhile, advocates were requested to talk to the petitioner to convince her to keep the pregnancy another few weeks until it is safe to deliver the child without harm.