Explained: The ‘26-week pregnancy termination’ case that divided SC

The Supreme Court on Friday (October 13) sought a report from the medical board of the All India Institute of Medical Sciences (AIIMS) if the 26-week foetus of a married woman, who is seeking permission to undergo termination of pregnancy, is suffering from any abnormality.

The case has drawn theattention of one and all in the country as it is about balancing 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.

A Bench headed by Chief Justice DY Chandrachud was hearing arguments on the Centre’s application seeking recall of the apex court's October 9 order permitting a 27-year-old woman, a mother of two, to undergo termination of pregnancy at the AIIMS.

“Though the earlier report which has been submitted by AIIMS does mention that the foetus is normal, nonetheless, in order to place the matter beyond doubt, we request that a further report be submitted on the above aspect,” said the bench, also comprising Justices JB Pardiwala and Manoj Misra.

What exactly is the case and why is the woman seeking termination of pregnancy?

The petitioner is a 27-year-old woman hailing from New Delhi. She moved the Supreme Court on October 4, seeking permission to terminate her pregnancy. The woman had sought approval to end her pregnancy citing medical grounds, including that she was suffering from postpartum depression.

She said she didn’t realise she was pregnant because she had adopted LAM (Lactational Amenorrhea Method), a natural family planning method. She told the court that they were taken aback by the latest pregnancy, and that they were happy with their two children.

The petitioner said she did not realise that LAM was not working. She had no pregnancy symptoms and came to know of it after she consulted a doctor. She also claimed that her husband is the sole breadwinner in the family with additional responsibility of his parents and a sister with his meagre earnings. An additional mouth to feed was, therefore, unviable for them.

The couple approached several hospitals and doctors to abort the foetus. However, they were turned away because she was already over 20 weeks pregnant.

Why did the SC first allow her to terminate her pregnancy and then object to it?

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”.

A bench of Justices Hima Kohli and BV Nagarathna said that the woman had delivered both her children by C-Section and is stated to be undergoing psychiatric treatment and continuous medication on account of depression for the past one year. The court also recognised that one of the grounds on which a pregnancy may be permitted to be terminated was when continuing with the pregnancy could seriously imperil the mental health of the woman.

However, the court was informed on Wednesday (October 11) that the doctor attending the woman had objected to terminating her pregnancy. Upon receiving the doctor’s report, the court objected and questioned as to why the medical report came after the court order in the case was delivered.

In an email written to the Additional Solicitor General (ASG), the doctor said that as the baby was 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 foeticide (stopping the foetal heart) can be done before termination. We perform this procedure for a foetus with abnormal development, but generally not in a normal foetus.”

“If this email had arrived earlier, we would not have been rushed into ordering an abortion. After receiving the email, my judicial conscience does not permit me to order the termination of the pregnancy outright,” Justice Kohli said.

However, Justice Nagarathna refused to subscribe to the view taken by Justice Kohli. Justice Nagarathna observed that the petitioner had remained determined about her decision not only on October 9 but also on October 10 that she did not wish to carry her pregnancy to term. Justice Nagarthana held that the petitioner’s decision must be respected by the court.

After the split verdict, a new Bench, led by CJI DY Chandrachud, took up the matter and called for a fresh report on the health condition of the woman in view of the drugs she had been taking for her postpartum depression. The next hearing of the case has been scheduled for Monday (October 16).

The apex court said this exercise may be carried out during the course of the day and the report of the medical board be placed before it on October 16, the next date of hearing. While hearing the matter on Thursday (October 12), the court had observed “we cannot kill the child”.

What does the law about medical termination of pregnancy say?

Section 3(2)(a) of the Medical Termination of Pregnancy (MTP) Act, 1971, permits the termination of pregnancy where the length of pregnancy does not exceed 20 weeks.

Clause (b) of this subsection permits termination where the length of pregnancy exceeds 20 weeks but does not exceed 24 weeks for such categories of women “as may be prescribed by Rules made under this Act”.

However, an opinion must be formed by not less than two registered medical practitioners that inter alia “the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health”.

The rules framed under the MTP Act, 1971 for the purpose of “categories of women” as mentioned in Section 3(2)(b) includes categories of women such as divorcees, widows, minors, disabled and mentally ill women and survivors of sexual assault or rape.

As per the MTP Act, there are only two exceptions under which termination of a pregnancy that has crossed the 24th week can be allowed. These exceptions are: i) Where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a medical board [(Section 3(2B)] and, ii) If a registered medical practitioner formed an opinion in good faith that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman (Section 5).

The MTP Act also overrides IPC Section 312 which states that “Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.

The Act allows a woman to get an abortion within the first 12 weeks of pregnancy, provided a registered medical practitioner diagnoses grave danger to the pregnant woman’s physical and mental health. If the foetus is between 12 and 20 weeks old, then the procedure requires permission from two medical practitioners.

Are there any precedents of court verdicts in pregnancy cases?

In January 2017, the Supreme Court had allowed a 22-year-old woman from Thane in Maharashtra to undergo abortion in the 24th week of her pregnancy. The woman underwent her first sonography after 20 weeks of pregnancy, which is a cap for abortion under the MTP Act. In her 23rd week, she approached Dr Sangeeta Pikale for an abortion, who then advised the court to intervene.

The Thane case was the second such case before the apex court within a year. In July 2016, the top court allowed a woman to undergo abortion in her 24th week of pregnancy at Dr RN Cooper Hospital in Vile Parle, Mumbai, granting her the benefit under Section 5 of Medical Termination of Pregnancy (MTP) Act, 1971, that allows abortion despite the 20-week ceiling.

In 2015, a 14-year-old rape victim from Gujarat sought and received permission from the Supreme Court to abort after the 20 weeks deadline had passed. Her petition was treated as a “special case”, meaning it could not be used as a precedent to grant permission in another case.