New Delhi: At last, Chief Justice of India (CJI) D.Y. Chandrachud-led three-judge Bench of the Supreme Court found merit in the opinion submitted by the Medical Board of the All India Institute of Medical Sciences (AIIMS) about the viability of the 26-week old pregnancy of the married mother who is the petitioner before the court, and the impact of her postpartum psychosis on the child as well as on her, if she continued her pregnancy to full-term.
The Bench dismissed the plea of the married petitioner to terminate her pregnancy in the 27th week, on the basis of the report of the Board which ruled out any adverse impact of her mental condition on the child as well as on her if she carried the pregnancy to its full term.
The Bench, also comprising Justice J.B. Pardiwala and Justice Manoj Misra, had directed the Board to submit a report after a fresh appraisal of her pregnancy as well as her mental health, following the doubts arising from her prescriptions in connection with her treatment for depression after the delivery of her second child.
The pregnant petitioner had claimed that she has been undergoing treatment for postpartum psychosis since October 10, 2022. She got married on December 3, 2017. While the first child was born on September 30, 2019, the second was born on September 30, 2022. As the prescriptions for her treatment for postpartum psychosis do not specify the nature of the ailment for which drugs were reportedly prescribed, the Bench had requested the Board to review the same and revert.
The Board, in its second report, submitted that the fetus is not suffering from any abnormality at all, let alone any ‘substantial’ abnormality, as provided by subsection 2(b) of Section 3 of the Medical Termination of Pregnancy Act, 1971 (MTP Act). In the first report, the Board had merely mentioned that the fetus is normal, and the pregnancy is viable.
Secondly, the Board informed the court that the continuance of the pregnancy of the petitioner to full term would not be jeopardised by the drugs which may be prescribed for the postpartum psychosis, from which she is suffering. The Board was clearly of the view that the medicines for the ailment that the petitioner had been taking earlier had not affected the child. The Board also offered to recommend alternative medication for the same going forward so as to neither jeopardise the well-being of the petitioner nor the fetus in that regard.
When the petitioner’s counsel, Dr. Amit Mishra pointed out that ultrasound scans can’t detect all abnormalities of the fetus, the CJI replied saying any invasive tests at this stage are not in the interest of the petitioner.
Mishra then sought to submit that the life of the pregnant married woman cannot be treated differently from that of an unmarried woman or a rape survivor. His argument was that since the court had earlier permitted abortion in the case of the latter even after 26 weeks on the grounds of the mental health of the mother, the same should be permissible in the case of the former.
The CJI, however, responded that the court sought to end the discrimination against unmarried mothers who might want to end their pregnancies on legitimate grounds. In this case, however, the question of any harm to the petitioner’s mental health has been ruled out by the Medical Board. “This argument does not help your client,” the CJI told Mishra.
The CJI was of the view that if interpreted broadly, the pro-choice provisions of the MTP Act would defeat its very purpose. “If the risk to the mother’s life is to be interpreted as a risk to a ‘meaningful life’, can we permit termination even in the 35th week?” the CJI asked. This was in response to Mishra’s contention that the petitioner is in no position to rear the third child, even if it is viable, in view of her family’s financial position and her mental health.
The additional solicitor general, Aishwarya Bhati, told the Bench that the question before the court is not a case of pro-choice versus pro-life. Instead, it should be interpreted as pre-term delivery versus normal delivery, as the latter would give the child “a fighting chance” to survive.
She cited instances of doctors performing abortions during 20-24 weeks of pregnancy, when they heard cries of the fetuses and when they had to stop their heartbeats. According to her, the mother does not have a choice for abortion, if the pregnancy crosses 24 weeks, and if the child is found viable by the doctors. “Pre-term delivery should be rarest of rare,” she told the Bench.
The Bench also heard senior advocate Colin Gonsalves, who volunteered to make submissions. He claimed that the right of the woman, under contemporary international law, is absolute, as far as the decision to abort is concerned. “There is no right of an unborn child until it is separated from the womb,” he said.
Gonsalves claimed that the Union of India had laid down guidelines to be followed in the Nikhil Datar case for late-term pregnancies, and they are relevant in this case. The CJI asked Gonsalves to tell parliament if he thinks the international law has changed over the years in favour of the absolute right of choice for the mother.
After briefly listening to Gonsalves, the CJI requested him to “keep his powder dry”, as his arguments are relevant in a challenge to the law and not in this case. “We have to apply the law as it stands,” the CJI made it clear, adding that the Union of India’s guidelines in the Nikhil Datar case cannot override the law.
The CJI told Gonsalves that it is not as if India is regressive, as even in the US the landmark Roe vs Wade (which had recognised the right to abortion) has been diluted.
Gonsalves then cautioned the Bench that if abortion can’t be carried out, no abortion can take place even before 24 weeks of pregnancy, and the Bench may be setting a wrong precedent in this case. He added that universally the gestational standards have become obsolete, and cited the World Health Organisation’s (WHO’s) norms to support his claim.
The CJI asked him whether the Bench could override the statute because of what the WHO had laid down.
Mishra then told the Bench that the petitioner had clearly ruled out continuance of her pregnancy for three more months as not possible. The CJI noted that the Bench is aware that her pregnancy was accidental and unplanned.
Bhati submitted to the bench that the Union government is prepared to meet the costs of her treatment at AIIMS till her full term of pregnancy is over, and also accept the responsibility of giving the child in adoption if she is willing.
The split verdict
The three-judge Bench’s decision follows a split decision by a division Bench comprising Justice Hima Kohli and Justice B.V. Nagarathna.
Justice Hima Kohli relied on the email sent by one of the members of the AIIMS Medical Board to Bhati, which clearly said that the baby was viable, showed signs of life, and had a strong possibility of survival. Feticide (stopping the fetal heart) can be done before termination, only with a directive from the court, the doctor had said. Feticide is done for a fetus which has abnormal development, but generally not done in a normal fetus, she added.
If feticide is not performed, this is not a termination, but a pre-term delivery where the baby born will be provided treatment and care. A baby who is born preterm and also of such low birth weight will have a long stay in the 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. In such a scenario, the doctor wanted to know what was to be done with the baby. If the parents agree to keep the child, this will take a major physical, mental, emotional, and financial toll on the couple.
If it is to go for adoption, the process needs to be spelt out clearly so that a baby who comes into the world will have a better chance at life if the delivery happens after at least eight weeks (that is beyond 26 weeks, when the doctor sent the email to Bhati).
Justice Kohli considered this email sent to Bhati on October 10, as a dissenting view by a member of the Board, because of which her judicial conscience did not permit the petitioner to terminate her pregnancy.
On October 9, Justice Kohli joined Justice Nagarathna in permitting the termination of pregnancy after considering the medical report of the Board submitted on October 6. The Board had opined that the chances of postpartum psychosis were present even at this gestation following delivery. The Board was of the view that the chances of complications due to hysterectomy were there at this gestation.
However, even before the detailed order had been uploaded, a mention was made for seeking recall of the order before the CJI by Bhati and the directions issued by the Kohli-Nagarathna Bench to the doctors at AIIMS to terminate pregnancy remained unimplemented.
In her dissenting order, Justice Nagarathna noted the strong determination of the petitioner-mother to medically terminate her pregnancy and to also not keep the baby even if it survives. The petitioner’s submission on an affidavit that the government can take care of the baby in case it survives and even can give it in adoption, or whatever is deemed suitable to them, was noted by Justice Nagarathna. The petitioner had also declared that she would have no objection or any claim over the baby in the future and that she had taken the decision out of her own free will, choice and without pressure from anyone, after having understood all facts and surrounding circumstances about her case.
Justice Nagarathna concluded that the petitioner’s decision must be respected and the interest of the mother of two children and expecting the third in a year’s time from giving birth to the second child had to be given preference.
The socioeconomic condition in which the petitioner is placed, the fact that she has already two children, the second child being only one year of age and the fact that she reiterated that her delicate mental condition and health and the medicines that she has been taking for the same, do not support her to continue with her pregnancy must be considered by the court. Courts cannot substitute their view in the matter with that of the decision of the petitioner.
Interestingly, Justice Nagarathna relied on the CJI’s verdict in X vs Health & Family Welfare Department (2022). The CJI had held in this case that the decision to have or not to have an abortion is borne out of complicated life circumstances, which only the woman can choose on her own terms without external interference or influence. Reproductive autonomy requires that every pregnant woman has the intrinsic right to choose to undergo or not to undergo an abortion without any consent or authorisation from a third party, the CJI held in this case. The consequences of an unwanted pregnancy on a woman’s body as well as her mind cannot be understated, the CJI had added.
Justice Nagarathna had underlined this sentence in CJI’s verdict in X vs Health & Family Welfare Department: “The decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman.”
Justice Nagarathna also held that in unwanted pregnancies as in the present case, whether the child to be born is viable or if the child would be a healthy child are not relevant considerations. What is to be focussed upon is whether the pregnant lady intends to give birth to a child or not – this is what has been emphasised by the court in X vs Health & Family Welfare Department, Justice Nagarathna noted in her separate order of split judgment.
Justice Nagarathna also found it incongruous to conclude that the fetus has a separate identity from the mother.
It could be said, however, that the current three-judge Bench on Monday had taken care to ensure that the petitioner’s physical and mental health would not suffer as a result of her continuing the pregnancy.