LI Network
Published on: October 13, 2023 at 11:00 IST
The recent split decision by a two-judge Supreme Court bench regarding the plea of a married woman seeking to terminate her unplanned 26-week pregnancy has been released.
Read Here: Supreme Court Grants Permission for Abortion at 26 Weeks Due to Mental and Financial Concerns
Due to the conflicting opinions of Justice Hima Kohli and Justice BV Nagarathna, the matter was referred to a three-judge bench led by the Chief Justice of India. Initially, the two-judge bench had granted the woman’s request, but the Union of India filed an application the following day to reconsider the order.
The email was cited from a doctor at the All India Institute of Medical Sciences, which indicated the fetus’s health and strong chances of survival.
Taking this email into account, Justice Kohli revoked the initial order, stating that her “judicial conscience does not allow the petitioner to terminate the pregnancy.”
Justice Kohli also expressed disapproval of the doctor sending the email, especially since the doctor had initially supported the medical termination of pregnancy.
In contrast, Justice Nagarathna took a clear position that the petitioner should be allowed to terminate the pregnancy, particularly because the woman had unequivocally expressed her strong determination not to continue with the pregnancy.
The judge noted that the petitioner was already the mother of two children, with the second child born just last year.
Justice Nagarathna relied on a judgment authored by Chief Justice of India DY Chandrachud in X v. Health and Family Welfare Department, which upheld a woman’s autonomy in making reproductive choices.
Justice Nagarathna emphasized that an unwanted pregnancy, whether due to family planning failure or sexual assault, has the same outcome. Since the woman does not wish to proceed with the pregnancy, the viability of the fetus is irrelevant.
“It may not be out of place to note that a foetus is dependent on the mother and cannot be recognized as an individual personality separate from that of the mother, as its very existence is owed to the mother. It would be incongruous to conclude that the foetus has a separate identity from the mother and that, despite the physical or mental health of the mother being under threat, she must continue her pregnancy until the fetus is born, which would endanger her delicate health. Such a position is contrary to Article 21 and 15(3) of the Constitution of India, which recognize the right to life and liberty, particularly for women.”
Justice Nagarathna continued, stating that the right to reproductive health, including the right to abortion, is a fundamental human right for women. Otherwise, a woman who is forced into an unwanted pregnancy may experience physical and mental trauma and may be burdened with the responsibility of raising an additional child, potentially limiting her opportunities in life, including her right to employment and contribution to her family’s income.
The judge argued that the Supreme Court, when exercising jurisdiction under Article 32 of the Constitution, must prioritize the petitioner’s fundamental right.
“The petitioner is aware of her delicate mental health (she has been undergoing treatment for postpartum depression after the birth of her second child, as evidenced by the documents provided by the petitioner herself in her writ petition). She has realized that she will not be able to continue her pregnancy until the baby is born and rear the child. She has considered not only her health but also the socioeconomic circumstances of her family and concluded that an additional child would be a burden on the family.”
Justice Nagarathna also noted that the email sent to the Additional Solicitor General came from only one of the doctors on the medical board.
“If, despite such counseling, a pregnant woman, as in this case, is determined to terminate the pregnancy, her decision should take precedence over all other considerations, including those of the courts of law. In this case, it is also important to note that her previous two pregnancies were delivered by Cesarean section, not naturally. This fact should also be taken into account.”
Today, a three-judge bench heard the case and also expressed reluctance to allow the petitioner to terminate the pregnancy, given the fetus’s viability. The Chief Justice of India, DY Chandrachud, emphasized that the rights of the unborn child are equally important as the woman’s decisional autonomy. The bench adjourned the hearing until tomorrow to give the petitioner time to reflect.
The petitioner had previously informed the Court that she had used the contraceptive method of Lactational Amenorrhea while breastfeeding her second child. However, this contraception method failed, leading to a belated discovery of her pregnancy. Lactational Amenorrhea is the absence of menstruation in lactating mothers.
