26-week medical termination of pregnancy

Supreme Court: In an application filed by the Union Government against Supreme Court’s order dated 09-10-2023 allowing a married woman to terminate her 26-week pregnancy on the ground that she is not in the position to raise a child financially and mentally, the division bench of Hima Kohli and BV Nagarathna, JJ. gave a split verdict, while Justice Kohli refused to permit the woman to terminate her pregnancy, Justice Nagarathna dismissed the Government’s application seeking recall of the order dated 09-10-2023. Further, it placed the matter before the CJI to constitute a bench of three judges to hear the case and pass an order accordingly.

The woman sought the Court’s intervention to abort her pregnancy in view of Section 3(2) of the Medical Termination of Pregnancy (MTP) Act, 1971 which permits abortion only before 24 weeks of pregnancy on the ground of risk of grave injury to the mother’s physical or mental health or on the ground that there is a substantial risk that the child would suffer from physical or mental abnormalities to be seriously handicapped.

After the Order dated 09-10-2023, the doctors expressed their inability to terminate a viable 26-week pregnancy of the woman.

Thereafter, the Union Government sought to recall the order dated 09-10-2023. On 10-10-2023, a Full Judge Bench comprising of Dr. DY Chandrachud, CJI, JB Pardiwala and Manoj Misra, JJ. asked the AIIMS doctors to defer the medical termination of pregnancy for a 26-week pregnant married woman, who was allowed to proceed with the medical termination via order dated 09-10-2023, due to the apprehension raised by the AIIMS doctors that the foetus would have a viable chance of being born. Further, the Court said that it would constitute a bench to hear the application the next day.

On 11-10-2023, Justice Kohli said that her judicial conscience does not allow her to let termination continue, thus, she desired to refer the matter to a larger bench. While Justice Nagarathna said that the woman has stated all throughout that she does not wish to carry out her pregnancy. This is not a question where the viability of the foetus has to be considered, but the interest and wishes of the woman who has reiterated her mental condition and ailments. Her decision must be respected. The order dated 09-10-2023 does not require to be recalled.

Thus, the Court placed the matter before the CJI to constitute a bench of three judges to hear the case and pass an order accordingly.

Source: Press

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