The Supreme Court, in a surprising turn of events, has expressed concern over a recent medical report suggesting the potential survival of a 26-week-old foetus in a married woman who had previously been granted permission for an abortion. The court raised the question of which judicial authority would deem it appropriate to halt the foetal heartbeat.
This situation unfolded after the Supreme Court initially permitted the woman, a mother of two, to proceed with the termination of her pregnancy on October 9. The decision was based on the woman’s documented struggles with depression and her inability to provide emotional, financial, and mental support for a third child. However, a subsequent application sought to overturn this order, prompting a fresh examination.
During the recent proceedings, the bench, composed of Justices Hima Kohli and B V Nagarathna, probed the Additional Solicitor General (ASG) Aishwarya Bhati, representing the Centre, about the discrepancy between the new medical report and the previous one. The court noted that the earlier report had been somewhat vague in its findings, prompting the question of why it lacked clarity.
The court’s earlier decision had been based on a report from a team of doctors at AIIMS, New Delhi. It had acknowledged the woman’s difficulties but now, given the ambiguity of the previous report, a new report indicated a strong likelihood of the foetus surviving. This prompted the justices to contemplate which court would be willing to halt the heartbeat of a living foetus. Justice Kohli expressed her reluctance to do so.
The bench also criticized the Centre’s handling of the case, noting its displeasure with the matter being presented before a bench led by Chief Justice of India D Y Chandrachud. Justice Nagarathna cautioned that such actions set a worrying precedent, as any party might follow suit. She stressed that every bench of the Supreme Court is authoritative, and this type of maneuver is not appreciated.
Bhati explained the circumstances that led to the case being mentioned before the CJI-led bench. During the proceedings, the virtual presence of the woman and her husband allowed the bench to clarify the contents of the new medical report and requested an affidavit outlining their intentions in light of the report.
The bench emphasized the importance of clarity and the preservation of life, making it clear that they did not want any room for misunderstanding. They posted the case for a further hearing at 2 PM.
On Tuesday, another bench, led by the CJI, had directed AIIMS to delay the termination of the pregnancy, which had been permitted the previous day by a different bench. Bhati highlighted the medical board’s recommendation to conduct foeticide due to the viable chance of the foetus surviving.
The woman had initially been granted permission for a medical termination of pregnancy by a bench headed by Justice Kohli on Monday. The court had previously asked AIIMS to form a medical board to assess the woman’s medical condition, as she was over 25 weeks pregnant.
The woman’s request to terminate her pregnancy, citing medical grounds, including postpartum depression, was rooted in the provisions of the Medical Termination of Pregnancy (MTP) Act. The Act permits termination up to 24 weeks for married women, as well as special categories such as survivors of rape, and other vulnerable groups, including differently-abled and minor women.