Preterm vs Abortion

Supreme Court: When an application was filed by the Union of India seeking to recall the order dated 9-10-2023 allowing medical termination of pregnancy based on report submitted by the Medical Board of AIIMS, this development led the Division Bench of Hima Kohli and B.V. Nagarathna, JJ. have contrasting opinions, putting a hold on the orders allowing termination of pregnancy.

Also Read – Family Planning | Know why the Supreme Court allowed termination of unplanned pregnancy at 26 weeks

Background of Application Seeking Recall of MTP Permit

The instant application by Union of India was premised on subsequent email dated 10-10-2023 addressed to the Additional Solicitor General sent by one of the members of the said Medical Board who was a Professor in the Department of Obstetrics and Gynecology at AIIMS seeking clarification from the Court regarding whether foeticide can be done before termination process since the baby was viable, and that if that was not done, it would be a preterm delivery and not a foeticide. In the latter case, the baby born will be provided treatment and care needing 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. It also recommended delivery after at least 8 weeks for the baby to have a better chance at life.

Opinion Rejecting Permission for MTP

Justice Hima Kohli found it unfortunate that the said email was sent by the Professor who a part of the same Medical Board was, stating and pointing out everything in email dated 10-10-2023 which out to have been said in the earlier report for the Court to have a clear perspective of the matter. The Court doubted the same to be a standalone view of the Professor lacking concurrence with other members. It further highlighted the woman persistence on her decision to medically terminate the pregnancy, and not to keep the baby even if it survived.

Justice Kohli kept up with the information contained in letter dated 10-10-2023 and refused to allow the termination of pregnancy.

Opinion Affirming Permission for MTP

Justice B.V. Nagarathna came up with a different opinion who explained that there was a mention of recall earlier even before the order dated 9-10-2023 was passed. Considering the woman’s strong determination not intending to continue her pregnancy, also depicted in the affidavit, having no objection if the government in case of baby’s survival takes care of the baby or even gives it in adoption.

She was of the opinion that the woman’s decision must be respected. It specifically expressed that “This is not a case where the question of a viable baby being born or unborn is to be considered, when the interest of the petitioner mother of two children and expecting the third in a years’ time from giving birth to the second child has to be given preference.”

Justice Nagarathna cited X v. Health & Family Welfare Department, 2022 SCC OnLine SC 1321 again pressing upon the reproductive rights of a woman. She expressed that “Unwanted pregnancy as a result of failure in a family planning method, even during the period of Lactational Amenorrhea as in the instant case or as a result of sexual assault results in the same consequence. 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. What is to be focused upon is, whether the pregnant lady intends to give birth to a child or not. This is what has been emphasized by this Court in the aforesaid three Judge Bench decision which is binding on this Bench.”

She acknowledged the foetus’ dependence on its mother, bereft of being recognized as an individual personality. Considering the mother’s delicate health, the Court found the position of continuing the pregnancy to be contrary to Article 21 and 15(3) of the Constitution of India recognizing the right to life and liberty, and particularly those of a woman. It further added that “reproduction is unique to women and throughout her life, a woman goes through the process of menstruation, pregnancy, delivery, post-delivery phase and ultimately menopause. The right to reproductive health being a woman’s human right would also include the right to an abortion. Otherwise, a woman who is forced into an unwanted pregnancy would experience physical and mental trauma and to endure the pregnancy which may continue in the post-natal period owing to which she would have the burden of bringing up an additional child and consequently, may lose out on other opportunities in life including right to employment and contribution to the income of the family.”

The Court further observed that while exercising jurisdiction under Article 32 of the Constitution, the Courts must focus on the fundamental right of the woman and affirm the same in light of prayers sought by her in view of her status, position and including her precarious mental health, while she clearly mentioned her inability to continue the pregnancy till delivery. The Court was cautious not to open the doors for orders of termination of pregnancy in similar cases, but keep up with the facts of the case, but stated that “she cannot be made worse off by this Court by declining to grant her the relief she has sought and thereby forcing her to continue with an unwanted pregnancy.”

She also raised concerns that the prior medical reports nowhere indicated the apprehension expressed in the email dated 10-10-2023, which triggered the instant recalling and reconstitution of the Bench. The Court remarked that “It was expected that the doctors at AIIMS would understand the import of the order of this Court and accordingly act on it and not seek clarification from this Court on medical procedures.”

Justice Nagarathna affirmed the order dated 9-10-2023 which did not require to be recalled, and also directed the Registry to seek orders from the Chief Justice of India regarding constitution of a larger Bench without wasting much time in the legal process, which may prove detrimental to the woman’s health.

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