KIRAN DEEP
The News Freedom
Chandigarh, October 16
The Supreme Court on Monday rejected a married woman’s request to terminate her 26 weeks and 5 days old pregnancy, adding that it could not approve an abortion request at this stage of pregnancy since there is no danger to the woman’s life. “The decision of whether to give the child up for adoption is entirely that of the parents,” the Supreme Court said.
While declining the woman’s plea, the Supreme Court bench headed by CJI DY Chandrachud said in the order that the length of the pregnancy has crossed twenty-four weeks. It is now approximately twenty-six weeks and five days. A medical termination of the pregnancy cannot be permitted.
While citing the reasons for not allowing the termination of pregnancy in its 20 page order a copy of which is also available with The News Freedom (www.thenewsfreedom.in), the Supreme Court said that “having crossed the statutory limit of twenty-four weeks, the requirements in either of Section 3(2B) or Section 5 must be met, there are no “substantial foetal abnormalities” diagnosed by a Medical Board in this case, in terms of Section 3(2B). This Court called for a second medical report from AIIMS to ensure that the facts of the case were accurately placed before it and no foetal abnormality was detected, the Supreme Court said.
Giving details, the Supreme Court further said that neither of the two reports submitted by the Medical Boards indicates that a termination is immediately necessary to save the life of the petitioner.
While directing the Central government to pay all the expenses costs for the delivery, the Supreme Court further said that “ the delivery will be conducted by AIIMS at the appropriate time. The Union Government has undertaken to pay all the medical costs for the delivery and incidental to it. Should the petitioner be inclined to give the child up for adoption, the Union Government has stated through the submission of the ASG that they shall ensure that this process takes place at the earliest, and in a smooth fashion. Needless to say, the decision of whether to give the child up for adoption is entirely that of the parents, the Supreme Court said.
“Under Article 142 of the Constitution, this Court has the power to do complete justice. However, this power may not be attracted in every case. If a medical termination were to be conducted at this stage, the doctors would be faced with a viable foetus. One of the options before this Court, which the email from AIIMS has flagged, is for it to direct the doctors to stop the heartbeat. This Court is averse to issuing a direction of this nature, ” the Supreme Court said. In addition to it, the Supreme Court said that the petitioner, too, did not wish for this Court to issue such a direction. This was communicated by her to the court during the course of the hearing. In the absence of a direction to stop the heartbeat, the viable foetus would be faced with a significant risk of lifelong physical and mental disabilities. The reports submitted by the Medical Board speak for themselves. 26. For these reasons, we do not accede to the prayer for the medical termination of the pregnancy, the Supreme Court further said.
Providing details about the petitioner, the Supreme Court said that the petitioner is a married woman of twenty-seven years. She and her husband have two children, the younger of which is about one year old. She filed the petition under Article 32 for directions to the respondents to permit a medical termination of her ongoing pregnancy.
The petitioner stated that she did not discover that she was pregnant until after twenty weeks of the pregnancy had elapsed because she had lactational amenorrhea. As a result of lactational amenorrhea, women who are breastfeeding do not menstruate. She therefore did not realize that the absence of menstruation was indicative of pregnancy.
Later the petitioner visited the gynaecologist for the first time after the delivery of her second child because she was feeling weak, nauseous, dizzy and experiencing abdominal discomfort. She underwent an ultrasound scan, upon which she realized that she was pregnant. The pregnancy was estimated to be around twenty-four weeks at that time. 3. The petitioner avers that she and her husband attempted to medically terminate the pregnancy at various hospitals but that they were unable to because of the Medical Termination of Pregnancy Act 19711 read with the Medical Termination of Pregnancy Rules 20032 (as amended in 2021). She therefore 1 “MTP Act” 2 “MTP Rules” 4 approached this Court by invoking its writ jurisdiction. She sought permission for the medical termination of her pregnancy on the grounds including she suffers from post-partum depression and her mental condition does not permit her to raise another child and as her husband is the only earning member of their family and they already have two children to care for. Additionally, they have other family members who depend on them.