The Supreme Court on Monday, October 16, refused to allow a married woman to terminate her 26-week pregnancy. The married woman was seeking permission to terminate her third pregnancy, which had exceeded 26 weeks. She cited postpartum psychosis following her previous delivery in September 2022 as the basis for her request. The bench, consisting of Chief Justice DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra, noted that allowing termination at this stage would contravene Sections 3 and 5 of the Medical Termination of Pregnancy Act. This law permits abortion up to 24 weeks, except for immediate threat to the mother's life or foetal abnormalities.
The case was filed on the grounds that the petitioner, a married woman with two children, was emotionally, financially, and physically unprepared to raise a third child due to postpartum psychosis. According to Live Law, the court noted that there was no imminent threat to the mother's life, nor did the case involve foetal abnormalities. These are the sole exceptions for terminating a pregnancy beyond 24 weeks under the Medical Termination of Pregnancy (MTP) Act.
In the previous hearing, the court doubted the authenticity of the petitioner's postpartum psychosis prescription. The bench granted AIIMS the liberty to independently assess the petitioner's mental and physical condition and directed the AIIMS medical board to evaluate the potential effects of the petitioner's medication on the foetus.
On October 16, the court received AIIMS's report confirming the petitioner's postpartum psychosis. The report stated that her medication had no adverse effects on the child. AIIMS also suggested an alternative treatment regimen to ensure no harm to the foetus. The doctors also found no abnormalities in the foetus.
The court refused to hear a challenge to the 24-week limit for medical termination of pregnancy through intervention. Instead, it stated that any challenge to the existing law would have to be addressed separately, and the ongoing petition would remain solely between the petitioner and the state.
The matter reached the three-judge bench after a split verdict in a two-judge bench. Initially, on October 9, Justices Hima Kohli and BV Nagarathna, in a two-judge bench, granted the woman's request for pregnancy termination. However, the following day, the Union government applied for the order's reconsideration providing an email from an AIIMS doctor affirming the foetus's viability and the necessity of specifically stopping its heartbeat. Justice Hima Kohli approved the recall application, citing her "judicial conscience" that prevented her from allowing the termination. Conversely, Justice Nagarathna emphasised the woman's autonomy as paramount, asserting that she should not be compelled to undergo the pregnancy, risking severe physical and mental trauma. The matter was referred to a larger bench in light of the disagreement.
Interpretation of 'life' under Section 5 of MTP Act
Advocate Amit Mishra, representing the petitioner, argued for a broad and purposeful interpretation of the term 'life' in Section 5 of the Medical Termination of Pregnancy Act. Section 5 allows termination after 24 weeks if it is immediately necessary to save the pregnant woman's life. Chief Justice Chandrachud cautioned against equating 'life' in Section 5 with 'life' under Article 21, as it would undermine Section 3 of the MTP Act. "You are saying interpret 'life' to mean life that is meaningful...so you want to give her this overriding power even in the 35th week, that cannot be done…” CJI said according to Live Law.
Mishra argued about the accidental and unplanned nature of the pregnancy. “The woman has asked me to tell your lordships that she doesn't think she can carry on her pregnancy for the next three months...it's a violation of her rights."
During the hearing, Additional Solicitor General Aishwarya Bhati, representing the Union government, argued that the issue transcended the pro-choice debate. She argued that it was a "Hobson's choice" between preterm and full-term delivery, asserting that timely delivery offered the child a fighting chance. Bhati maintained that after 24 weeks, termination was only permissible if the medical report confirmed the child's well-being. “And on-time delivery will give the child a fighting chance. I will stand by that. After 24 weeks, once it is a viable life choice, termination goes once the medical report says that the child is fine," she argued.
Senior Advocate Colin Gonsalves, presenting an intervention application, countered that international law did not confer overriding rights to an unborn child or foetus. He contended that foeticide had been allowed for over a decade based on government guidelines and the Nikhil Datar case precedent (the upper limit for abortions increased from 20 weeks to 24 weeks). “All abortions lead to the death of the foetus as it stills the heart of the child," he argued.
When asked by the CJI if he contended that a woman should be allowed to abort even at 33 weeks or in cases without foetal abnormalities, Gonsalves affirmed that there were no gestational restrictions. He referred to a statement by the World Health Organisation, suggesting that the 24-week guideline for termination was 'obsolete'.
"...thousands of abortions take place...the foetal heart thing is the Government of India policy. So to say it is surprising and shocking and a new phenomenon – it's not right," he told the court.
CJI Chandrachud observed that India had specific laws governing these situations. He underscored that exceptions for abortions beyond a certain limit were granted for foetal abnormalities or to save the life of a pregnant woman. He cautioned against disregarding the existing legal framework.
The CJI observed, "We have our own laws. Exceptions (where abortions are permitted beyond a certain limit) are for foetal abnormalities and to save the life of a pregnant woman. In the absence of a challenge to the validity of the (MTP) Act, we have to consider the law as it is. Keep your powder dry for the challenge to the validity of the law. The Government of India cannot act contrary to the mandate of this statute.”
The CJI added that India is not regressive compared to the situation in America after the Roe vs Wade ruling was overturned. "The legislature has done the act of balancing here in India in 2021. Now it is for courts to see if the balancing act is correct or not. Can we deny the power of the legislature to take such steps in these incremental matters? Why should we deny that power to a democratically elected legislature, and are we better to do more than that?" he asked.
Gonsalves asserted that India is regressive about abortion laws, the CJI disagreed, stating that each democracy operated within its distinct legal framework. He noted that advocating to override India's statutes based on WHO statements was impractical. The bench clarified the state would cover all medical expenses, and the petitioner would have the final say on whether to keep the child after birth or put it up for adoption.