Why an abortion case has left India’s Supreme Court split

An abortion case has left India’s Supreme Court divided. The apex court on Thursday ordered doctors at the All India Institute of Medical Sciences (AIIMS) to put the abortion of a 26-week pregnancy on hold. This comes just days after another bench of the apex court allowed the woman to terminate her pregnancy. The top court had on 5 October asked the All India Institute of Medical Sciences (AIIMS), New Delhi to constitute a medical board to assess the medical condition of the woman, who was then over 25 weeks pregnant. But what changed? Let’s take a closer look:  ‘Recogise right of woman over her body’ On Monday, the Supreme Court allowed the woman to proceed with aborting the foetus. This, despite the AIIMS Medical Board certifying the pregnancy as viable. The woman had moved the apex court seeking its approval to terminate her pregnancy citing medical grounds, including that she was suffering from postpartum depression.

As per Outlook, the woman also told the court she has been receiving psychiatric treatment for the past year.

India’s upper limit for the termination of pregnancy under the Medical Termination of Pregnancy (MTP) Act is 24 weeks for married women, special categories including survivors of rape, and other vulnerable women such as the differently-abled and minors. As per The Wire, Section 3(2) of the Medical Termination of Pregnancy (MTP) Act allows abortion on the grounds of the “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”. The apex court bench of justices Hima Kohli and BV Nagarathna held twin hearings on Monday over the matter – speaking to the petitioner and her husband. The bench noted that the couple already had two children – a four-year-old and a one-year-old. The court, saying it was more concerned about the health of the mother, said the woman must have the ‘willpower and emotional strength’ to have and raise the child. The court also noted that the state would be of no assistance after she gave birth to the baby. The two-judge bench, keeping in view the medical board’s opinion of the foetus being viable, told the Centre – represented by Additional Solicitor General Aishwarya Bhati – that it could not force the petitioner to give the baby up for adoption. The court, noting that woman is suffering from depression and is not in a position to raise a third child “emotionally, financially and mentally”, passed the order giving the go-ahead. “This court does recognise the right of a woman over her body and the fact that if an unwarranted pregnancy results in a child being brought into the world, a large part of the responsibility of rearing such a child will fall on the shoulder of the petitioner, which at this point she doesn’t consider herself fit for,” the bench stated as per Outlook. The court in its verdict said took the woman’s mental health into account while passing its order.  Live Law quoted the bench as saying “This court has recognized the fact that one of the grounds on the basis of which pregnancy may be is when continuing with the pregnancy could impair the mental health of the woman as observed in the case Xv. Principal Secretary. The expression grave injury to her physical and mental health as used in Section 3(2) of the MTP Act is used as an overarching and in an all-encompassing sense.” It added, “Courts have been expansively interpreting Section 5 of the MTP Act that permits termination of pregnancy beyond 20 weeks in circumstances where it is considered imperative to save the life of the woman. This Court has also recognised the fact that “mental health” has a broad connotation beyond what is ordinarily considered as mental illness in common medical parlance. The different categories carved out in Rule 3 (B) on the Medical Termination of Pregnancy Rules, 2023 show that women can seek abortion even after 20 weeks, which could be on account of a delay in recognizing their pregnancy or a change of their life circumstances to the point that the pregnancy becomes unwarranted and unviable Conceptions in Lactational Amenorrhea period has also been considered as of the circumstances by the expert committee constituted to draft the MTP Rules, and draw up categories of women who qualify for Rule 3(B).” ‘Doctors in very serious dilemma’ Then, on Tuesday, an apex court bench comprising Chief Justice of India DY Chandrachud and justices JB Pardiwala and Manoj Misra ordered AAIMS to put the termination of the pregnancy on hold.

This after the AIIMS medical board cited its ‘inability’ to terminate the pregnancy.

As per Outlook, ASG Bhati, again representing the Centre, claimed that the AAIMS doctors would have to ‘conduct a foeticide’ as the medical board said the foetus had a viable chance of being born. As per Indian Express, the AIIMS doctors told the ASG, “As the baby is currently viable (will show signs of life and have a strong possibility of survival), we will need a directive from the Supreme court on whether a feticide (stopping the fetal heart) can be done before termination. We perform this procedure for a fetus which has abnormal development, but generally not done in a normal fetus”. [caption id=“attachment_13241112” align=“alignnone” width=“640”] The AIIMS medical board cited its ‘inability’ to terminate the pregnancy.[/caption] “If foeticide is not performed, this is not a termination, but a preterm delivery where the baby born will be provided treatment and care. A baby who is born preterm and also of such low birth weight will have a long stay in the 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. In such a scenario, a directive needs to be given as to what is to be done with the baby? If the parents agree to keep the child this will take a major physical, mental, emotional and financial toll on the couple,” the doctors added. Outlook quoted the bench as stating, “Can you come with a formal application for recall? We will place before the bench which passed the order. The AIIMS doctors are in a very serious dilemma… I will constitute a bench tomorrow morning. Please ask AIIMS to hold for now.”  ‘Which court will say stop foetal heartbeat?’ On Wednesday,  a two-judge bench of the Supreme Court pronounced a split verdict on the Centre’s plea for recall of its 9 October order granting permission for the woman to end her pregnancy. One of the judges voiced her disinclination to allow abortion and the other asserted that the woman’s decision “must be respected”. While Justice Hima Kohli wondered which court would say “stop the heartbeat of a foetus” and made it clear she was not inclined to permit the 27-year-old woman to terminate her pregnancy, Justice B V Nagarathna said the court should respect the decision of the woman who has remained determined to abort it. In view of the disagreement between them, the two judges of the bench, who had passed the 9 October order, decided to place the Centre’s application before Chief Justice D  Chandrachud for being marked to an appropriate bench for adjudication. Justice Kohli observed the top court had permitted the woman to terminate her pregnancy after considering the 6 October report submitted by a medical board of the All India Institute of Medical Sciences (AIIMS). During the hearing, the bench took exception to an October 10 e-mail addressed by one of the members of the medical board about the strong possibility of survival of the foetus, and asked which court would say “stop the foetal heartbeat”. “If the doctor could be so candid in two days short of the earlier report, why was not the (earlier) report more elaborate and more candid?” the bench asked, adding, “Why were they being ambiguous in the earlier report?”. Justice Kohli wondered which court would say stop the heartbeat of a foetus which has life. “Speaking for myself, I would not,” she said. In her order, Justice Kohli noted the application filed by the Centre seeking recall of the order was premised on the e-mail dated 10 October. The bench said it was “rather unfortunate” that the e-mail was addressed the very next day of the order being passed. It said what has been stated in the e-mail ought to have been mentioned in the 6 October  report of the medical board so the court could have a “correct and clearer perspective” of the matter. “The report itself was fairly ambiguous on aspects which are now sought to be elucidated,” Justice Kohli said. She noted when the matter was taken up for hearing in the morning session, the bench had asked the petitioner woman to file an affidavit clarifying her stand in the wake of the e-mail. Justice Kohli said the woman filed her affidavit stating she has made “wilful and conscious decision” to medically terminate her pregnancy. “Having regard to the information contained in the e-mail dated October 10, 2023 addressed by a professor of … AIIMS, one of us is not inclined to permit the petitioner to terminate her pregnancy,” she said, adding, “My sister judge (Justice Nagarathna) is of a different opinion”. Justice Nagarathna said she respectfully disagrees with Justice Kohli. Justice Nagarathna observed the woman’s plea was disposed of by the court by a detailed order on 9 October and the petitioner has remained determined about her decision to not proceed ahead with her pregnancy. “Having regard to the concrete determination made by the petitioner, I find that her (woman) decision must be respected. his is not a case where the question of viable baby being born or unborn is to be really considered when the interest of petitioner has to be given more balance and preference,” she said. Referring to the socio-economic condition of the petitioner, the fact that she already has two children and has reiterated that her mental condition and medicines which she is taking do not permit her to continue with the pregnancy, “I find that her decision must be respected by the court”. “In these circumstances, I find that the order dated 9 October which is a well-considered order authored by my sister Justice Hima Kohli, does not require any recall,” Justice Nagarathna said while dismissing the Centre’s application. “Having regard to the concrete determination made by the petitioner, I find that her decision must be respected. The court is here not to substitute its decision for the decision of the petitioner,” Nagarathna added as per Indian Express. [caption id=“attachment_13241122” align=“alignnone” width=“640”] Representational image.[/caption] During the hearing, Additional Solicitor General Aishwarya Bhati, appearing for the Centre, referred to the medical opinion which has now come in the matter. “Once there is a viable baby on the other side, my respectful submission would be that your lordships may not give absolute primacy to her choice and her autonomy of exercising her reproductive rights,” she said. During the hearing, the bench said it did not appreciate the way the Centre had mentioned the matter on Tuesday before a bench headed by the CJI. “When one bench of this court decides a matter, without any pleadings whatsoever, how can you move an intra-court appeal before a three judge bench of this court…,” Justice Nagarathna said.

“If the Union of India starts doing this, tomorrow, a private party will also do this,” she said.

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“Every bench of the Supreme Court is Supreme Court. We are one court sitting in separate benches. Speaking for myself, I would not appreciate this on the part of Union of India.” Bhati explained to the bench the circumstances leading to mentioning of the matter on Tuesday before the CJI-led bench. “Since the court’s direction was to carry out the termination yesterday only, I had to mention (the matter),” she told the bench as per Indian Express.  “What’s being said now… is entirely much wider. This is not what was being said (earlier). If they wanted, they could have done all of that then, and the court would have taken notice of it because we are relying on the report… We ourselves asked for it… How is it that they decided to go this way only after the order was passed and not earlier?” Kohli asked. To which Bhati replied, “These questions had arisen in our minds during the hearing of the matter.” Justice Kohli said, “That is you as an individual. We are laypersons… Why do we rely on the medical report? Because we don’t know and they know better. And we are relying on a report because there is a whole team that is part of that interaction with the patient… After giving us an ambiguous report and saying yes, the lady does have that problem, it could go up, the mental issues and she could have then postpartum also, to say now… And which court will, pray, say stop a heartbeat of a foetus which has a life? We are wondering! Which court would do that? Speaking for myself, I wouldn’t. So why weren’t they not so candid we are very curious to know. Why were they hedging?” “Now to say there is a strong possibility of survival and that we will stop the heartbeat if the court says. For heaven’s sake, which court will stop the foetal heartbeat? If this was the stand they had to take, they should have said all of it at that point in time, that though there is a financial, physical, mental, emotional thing on the lady, if you keep the child a bit longer, and we persuade her, the option of adoption could have been considered. Because if you remember, the parents did say that if we have no option, we will like to continue with the pregnancy and retain the child with us,” Justice Kohli added.  ‘Cannot kill child’ On Thursday, the Supreme Court bench led by CJI Chandrachud said, “We cannot kill a child.” While making it clear that the top court has to balance the rights of the unborn child, a “living and viable foetus”, with its mother’s right of decisional autonomy, a bench headed by Chief Justice DY Chandrachud asked the Centre and her lawyer to talk to the woman about the possibility of retaining the pregnancy for a few weeks more. “Do you want us to tell the doctors at AIIMS to stop the foetal heart?” the bench, also comprising justices JB Pardiwala and Manoj Misra, asked the counsel appearing for the 27-year-old woman. When the counsel responded with a “no”, the bench responded that the woman had waited over 24 weeks and asked if she can’t keep the foetus for some more weeks so there is the possibility of a healthy child being born. NDTV quoted CJI Chandrachud as saying, “What was she doing for 26 weeks? She already has two children? Why come now? Do we issue an order for the child’s death through a judicial ruling?” Bhati, referring to the AIIMS report, told the bench, “The child is ready to be born. It won’t be right to abort because the foetus shows signs of life. The order to abort must be recalled," she said. Bhati also noted that the petitioner’s lawyer has cited a court ruling in a rape suvivor’s case. “She (petitioner) is no rape survivor. She is not a minor. What was she doing for 26 weeks?” Bhati added. “We have to look into the rights of the unborn child,” Chandrachud added, as per NDTV. The Supreme Court is now set to hear the case again tomorrow at 10.30 am.  With inputs from agencies