New Delhi:
A potentially landmark ruling on abortion is expected this afternoon, when the Supreme Court will hear from a woman who has sought the termination of a 26-week foetus on medical grounds; the woman, who already has two children, told the court she suffers from various health issues, including postnatal depression, and is financially and emotionally unable to raise a third child.
The court had on Monday allowed the family’s termination request.
However, the government on Tuesday submitted a last-minute medical report claiming the foetus is “viable”, i.e., it shows signs of life and has a strong possibility of survival. That report irked a two-member bench that had been assigned to review the matter by Chief Justice DY Chandrachud.
“Why only after our order? Why were they not candid earlier? Which court wants to stop a foetus with a heartbeat? Certainly not us, for heaven’s sake,” an anguished Justice Hima Kohli demanded.
Additional Solicitor General Aishwarya Bhati said, “Doctors will be better placed to answer…”
More than once the court criticised the government for its handling of this case. “There is a way to overturn a court order (but) not like this. Why after the order was passed? It is not like we did not hear you,” Justice Kohli and Justice BV Nagarathna said, “She is under more stress now…”
The court also criticised the government for failing to mention this point in Monday’s hearing.
“When one bench of this court decides a matter… without any pleading how can you move an intra-court appeal before a three judge bench…,” Justice Nagarathna said.
“If the Union of India starts doing this, tomorrow a private party will also do this… every bench is the Supreme Court. We are one court…. Speaking for myself, I would not appreciate this…” she added.
Justice Kohli and Justice Nagarathna then said they needed to hear from the woman – who had not been informed of the new report – and fixed a hearing for 2 PM.
“There should be no grey area or confusion in a matter like this. We do not appreciate…”
“We don’t want any scope of misunderstanding. We are talking of precious life here. We would not want to take any risk,” the bench said, as it also directed her to file an affidavit outlining what she would like to do in light of the new report from AIIMS. The court also interacted with the father.
Can Baby Be Put Up For Adoption?
The court also asked the woman if she would be willing to foster the unborn child till the government could arrange for its adoption. The woman expressed her agreement to do so, to which Ms Bhati said, “We are ready to take care (of the mother and child). We will give medicines, etc.”
The father also agreed but the court emphasised it needed to hear from the woman.
What Did The AIIMS Report Say?
The report, from Delhi’s All India Institute of Medical Sciences, asked the court if a foeticide – the procedure to stop the foetal heart – could be performed before the termination of the pregnancy.
Essentially, the government has cited the AIIMS report to suggest that since the foetus has, so far, had a normal and healthy progression, aborting it now would not technically be a “termination”
It would, instead, be a preterm delivery and amount to the “murder” of the foetus.
Under the Medical Termination of Pregnancy (MTP) Act, the upper limit for the termination of pregnancy is 24 weeks for married women, special categories including survivors of rape, and other vulnerable women such as the differently-abled and minors
