Can't kill a child: SC on termination of 26-week pregnancy

"We cannot kill the child," the Supreme Court observed on Thursday while stressing on the need to balance the rights of an unborn child with the right to autonomy of the mother who has sought to abort the healthy foetus on account of her own ill health.

Faced with a conundrum over whether to allow a married woman, a mother of two, to terminate her 26-week pregnancy, a bench headed by Chief Justice DY Chandrachud asked her counsel whether she wanted the apex court to tell the doctors at All India Institute of Medical Sciences to stop the "fetal heart" of a "living, viable foetus" under a judicial order.

Under the Medical Termination of Pregnancy 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.

The bench, also comprising Justices JB Pardiwala and Manoj Misra, was hearing the Centre's application seeking recall of the top court's October 9 order permitting the woman to undergo termination of pregnancy at All India Institute of Medical Sciences.

The issue arose after one of the doctors of the AIIMS medical board, which examined the woman and filed a report to the apex court on October 6, sent an e-mail on October 10 saying the foetus had a strong possibility of survival if the pregnancy was terminated at this stage.

"We cannot kill the child," the CJI observed, as the court grappled with the moral dilemma over whether to order the child's birth or respect the mother's choice.

Referring to the doctors' opinion which said there was a strong possibility of the child being born with serious physical or mental deformity if premature delivery was allowed now, the bench said, "Today, if the child is delivered with deformity, nobody will adopt the child."

Terming it a "hard fact", the bench said in India, people don't like to adopt children with deformities, and though there are exceptions, people don't generally do this.

It said the task of judges is all about balancing rights and duties, and what is social good.

"Tell us one thing, what about a mother who knows that if I deliver today and don't keep the baby for another two weeks time, I am going to deliver a child who is destined to be abnormal, physically and mentally. It is a Hobson's choice," the CJI said.

As the petitioner's counsel vehemently argued in favour of ending the pregnancy and asked whether the court would have taken the same stand if an unmarried pregnant woman had approached it, the bench said, "We are the Supreme Court".

"This is not a case either of a minor victim who has contracted pregnancy nor is a case of a person who is a victim of sexual violence or abuse. She (petitioner) is a married woman. She has two children. Surely, the elementary question which we wanted to ask you is what was she doing for 26 weeks? She had earlier two pregnancies. She knows the consequences of pregnancy," the bench said.

"What do you want us to tell the doctors to do? You want us to tell the doctors to ensure that the fetal heart stops functioning? AIIMS wants that direction from the Supreme Court," the CJI said.

As the petitioner's counsel responded with a "no", the bench said when the woman has waited for over 24 weeks, can't she retain the foetus for some more weeks so there is the possibility of a healthy child being born.

The CJI said doctors are now saying they can medically terminate the pregnancy by stopping the fetal heart if the court allows.

"That is why AIIMS has a serious ethical dilemma," he said.

The bench said asking the AIIMS to stop the fetal heart will be like directing the doctors to carry out an "act of foeticide".

The petitioner's counsel said the woman doesn't want to continue with her pregnancy due to her problems and the mental condition which she is facing right now.

He said she is unable to take care of herself due to the pregnancy and had even locked herself in a room and thought of suicide.

"We also need to balance out the rights of the unborn child. Undoubtedly, the autonomy of the woman must come. She has a right under Article 21, she has a right under various provisions of the Constitution… But equally, you have to be conscious of the fact that whatever you are doing is going to affect the rights of an unborn child," the bench said.

"But the fact of the matter remains that how do you really balance the rights of the child. It is not just a foetus. It is a living, viable foetus which, if given birth to, can survive outside," it said.

The bench said nobody is compelling her to keep the child and even the State has not said the mother must keep the child.

"But having waited for 26 weeks, and in plain English, to put the child to death, is the only other option. All that she has to do is to wait for another two weeks," it said.

The apex court observed the doctors have said that fetal growth in the mother's womb makes all the difference and that is nature.

It suggested the counsel to persuade the woman to keep her pregnancy and deliver when the time comes.

It asked additional Solicitor General Aishwarya Bhati, appearing for the Centre, and the petitioner's lawyer to talk to the woman about the possibility of retaining the pregnancy for a few weeks more and posted the matter for hearing on Friday.

The matter came up before the CJI-led bench after a two-judge bench on Wednesday gave a split verdict on the Centre's plea for recall of its October 9 order granting permission to the woman to terminate her pregnancy which is at an advanced stage.

The apex court had on October 9 allowed the woman to proceed with medical termination of pregnancy after taking note that she was suffering from depression and was not in a position to raise a third child "emotionally, financially and mentally".

The woman had moved the apex court seeking its approval to end her pregnancy citing medical grounds, including that she was suffering from postpartum depression.