termination of unplanned pregnancy

Supreme Court: In a petition filed under Article 32 of Constitution of India seeking directions against the authorities to allow medical termination of pregnancy under Sections 3(2)(b)(i), 3(3) and 5 of Medical Termination of Pregnancy Act, 1971 (‘MTP Act’) read with Rule 3B of MTP Rules, 2003 in any Government Hospital, the Division Bench of Hima Kohli and B.V. Nagarathna, JJ. allowed the instant petition issuing directions for the couple and All India Institute of Medical Sciences (‘AIIMS’) to proceed with MTP procedure at the earliest.

Background for Termination of Unplanned Pregnancy

The petitioner in the instant matter was a 27-year-old homemaker who was 26-weeks pregnant and already had two children (2 sons aged 4 years and 1 year respectively). Her husband had the responsibility of supporting his wife, children, and maintaining his aged parents and a sister with paltry salary, making it unviable for the couple to feed one more mouth. She pleaded that she was neither physically, mentally, psychologically or financially prepared to continue the unwanted pregnancy. It was stated that the two children were born of C-section deliveries and the couple was satisfied with their family being complete.

As submitted, the current pregnancy came as an ‘utter shock’ for not realising about the ongoing pregnancy because after delivery of the second child, she had adopted Lactational Amenorrhea Method (‘LAM’), a process which implies absence of menstruation due to continuing breast feeding as a contraceptive method. She did not have any symptoms of pregnancy until recently as revealed by the Doctor, which made her rush to the Court through the instant petition. When the couple approached several doctors and hospitals for MTP, they declined their request due to the statutory bar under MTP Act permitting MTP only through a Registered Medical Practitioner up to 20 weeks, and up to 24 weeks in case of forced pregnancy.

The case was heard on 5-10-2023 and the report by AIIMS Medical Bord based on woman’s appearance dated 6-10-2023, reflected that the baby was viable and had a reasonable chance of survival, and that the chances of post-partum psychosis of which the couple is worried of, were present even at this gestation following delivery.

Court’s Analysis of Medical Termination of Pregnancy for Married Couples

The Bench directly interacted with the couple through virtual hearing wherein, they expressed reluctance to continue the pregnancy stating that they were not only worried about the woman’s mental, physical and psychological health, but also for the fact that she was undergoing treatment for depression, prescribed strong medication which could have had an adverse impact on the health of the foetus. The Bench highlighted the woman’s categorical expression of unwillingness to continue with pregnancy, still seeking permission to medically terminate the same.

The Bench took note of the medical reports estimating that LAM users have over 95% protection from pregnancy, but the petitioner woman happened to be an exception, who had delivered two babies by C-Section delivery and was undergoing psychiatric treatment and remained on continuous medication of depression for past 1 year. The Bench reiterated the already recognized fact that “one of the grounds on the basis of which a pregnancy may be permitted to be terminated is when continuing with the pregnancy could seriously imperil the mental health of the women.”

The Bench cited X v. Health & Family Welfare Department, 2022 SCC OnLine SC 1321 to express that “Courts have been liberal in interpreting Section 3 of the MTP Act that permits RMPs to terminate pregnancy beyond 20 weeks in circumstances where continuing with the pregnancy would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health.”

The Bench pointed towards the different categories carved under Rule 3(B) of MTP Rules keeping the scope open for women to seek abortion beyond 20 weeks, on account of delay in recognizing pregnancy or critical material change of life circumstances making the pregnancy unwarranted or unviable, etc. It also highlighted that LAM was acknowledged as one of the circumstances by the Expert Committee constituted to draft the MTP Rules and draw up categories of women qualifying under Rule 3(B).

The Bench brought in the backdrop that “Courts have gone that extra mile to ensure that unwanted/ forced pregnancies caused by rape, sexual assault or incest ought to be terminated, they are equally conscious of the fact that unwanted pregnancies can take place even in the case of a married women and rape within a marriage that results in forced pregnancies, has also been recognized.” It went on to acknowledge the bodily and reproductive autonomy of a woman seeking termination of pregnancy and expressed that “If an unwarranted pregnancy results in a child being brought into the world, a major part of the responsibility of rearing the child is bound to fall on the petitioner as a mother and a primary a care giver, which onerous responsibility, she does not consider herself fit to shoulder at this point of time due to reasons stated above. The only silver lining for the petitioner is that her mother-in-law is ready and willing to support her in bringing up the children.”

Therefore, the Court deemed it appropriate to permit termination of unwanted pregnancy and directed AIIMS authorities to admit her for undergoing the process at the earliest. The Bench was cautious while directing that “In the event, the foetus is alive, then the process of incubation and any other procedure as may be advised medically, shall be adopted.”

The Court also explained about how the petitioner could have approached the High Court instead of directly coming before the Supreme Court under Article 32 of Constitution, and that relegating the matter to the High Court would have added to the delay for pregnancy, and therefore, the Bench entertained the instant petition. It further repeated that the instant matter was a case of a maried couple already having children.

Supreme Court on Unwanted Pregnancy v. Family Planning

The Bench commented that “An unplanned pregnancy not only leads to the birth of an unwanted child, it is accompanied by myriad anxieties and complications that travel beyond the health of the mother, on a psychological and mental plane. It is, therefore expected of married couples to be careful in planning their families and take adequate timely precautions so that they do not end up knocking at the doors of the Court at the eleventh hour, praying for termination of pregnancies that have crossed the critical period as in the instant case, 26 weeks.”

The Bench acknowledged the current scenario with nuclear families wherein, the burden of bringing up children rests entirely on the shoulders of married couples. It also pointed towards India being the most populated country, striving to achieve social and economic development within the limited means and resources. The Court cautioned the people that “When it comes to planning a family, each citizen has an equal obligation to discharge in the interest of the society and the country. Bringing a child in the world is one thing and rearing the child with all the necessary amenities including nutrition, health, good education and a conducive environment at home to make her a responsible citizen of the country, is another. To nurture children as responsible and healthy citizens is an onerous obligation cast on the parents.”

Coming back to the instant case wherein, the couple could have been more precautious against an unwanted pregnancy, the Bench opined that such ignorance out to be addressed by the Central and State Governments by amply publicizing schemes relating to family planning, maternal health and betterment of a child’s health and disseminating the same to public in general and married couples in particular.

Commenting on want for a male child, the Bench expressed that “This Court is also acutely mindful of the patriarchal mindset in many parts of the country and the intense desire to beget a male child sought to be validated by having a “Kuldeepak” to carry forward the name of the family. It is regrettable that even in this day and time, a girl child is not accepted by many as a ‘Kuldeepika’. This regressive mindset is also responsible for female infanticide.” It further brought in the fact that in the instant case, both the children were boys to avoid any such suspicion.

Therefore, the Bench allowed the instant petition and issued directions for visiting the Obstetrics and Gynaecology Department, AIIMS, New Delhi for undergoing procedure of termination of her pregnancy at the earliest.

[Poonam Sharma v. Union of India, 2023 SCC OnLine SC 1333, Order dated 9-10-2023]

Advocates who appeared in this case :

For Petitioner: Advocate Dr. Amit Mishra, Advocate on Record Rahul Sharma

For Respondent: Additional Solicitor General Aishwarya Bhati, Advocate Sthavi Asthana, Advocate Ameya Thanvi, Advocate Manisha Chava, Advocate Abhijeet Singh, Advocate Shreya Jain, Advocate Chitrangda Rastravara, Advocate Shagun Thakur, Advocate Nithin Chowdhary Panduri, Advocate Uday Bhan Singh, Advocate on Record G.S. Makker

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