Pro-Choice v. Pro-Life: SC Raises Doubt On Medical Prescription Of Mother Seeking Abortion Of 26-Week Foetus, Directs AIIMS To Conduct Independent Evaluation Of Mother & Foetus

The Supreme Court, today, while dealing with a plea of a woman seeking termination of a pregnancy that had progressed beyond 26 weeks expressed doubts regarding the medical prescription indicating postpartum psychosis to the Petitioner-mother and instructed AIIMS to conduct an independent evaluation of the woman's condition and the condition of the fetus. The Court adjourned the matter until Monday to await the AIIMS report.

The Bench of Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra ordered, "During the course of the hearing, Mr. Amit Mishra, the learned counsel for the Petitioner, submitted a bunch of prescriptions in support of his submission that the Petitioner is undergoing treatment for postpartum psychosis since 10th October 2022. The relevant dates that must be noted are: Date of marriage 3rd December 2017, date of birth of the first child 13th September 2019, date of birth of the second child: 13th September 2022."

Continuing the Court held, "The photocopies of the prescriptions produced before the Court are relied upon to indicate treatment at a Noida clinic since 10th October 2022. The initial handwritten prescription dated 7th November 2022, which contains a prescription for administering five drugs, does not specify the nature of the ailment for which the drugs were purportedly administered. Similarly, all the other prescriptions in the name of the petitioner and dated are silent regarding the condition sought to be treated."

The Court further stated "Be that as it may, we are of the view that certain factual material will be necessary to have a report from a medical board of AIIMS, specifically on the following aspects: 1. Whether the fetus is suffering from any substantial abnormalities, as provided by Sub-Section 2(b) of Section 3 of the MTP Act. Though the earlier report submitted by AIIMS does mention that the fetus is normal, nonetheless, to remove any doubt, we request a further report be submitted on the above aspect. 2. Whether there is any evidence to indicate that the continuation of the pregnancy of the petitioner for the full term would be jeopardized by the drugs that are to be prescribed for the alleged condition which the petitioner has stated to be suffering from."

It was also observed in the order that, "The medical professionals at AIIMS will be at liberty to carry out their own diagnosis with regard to the alleged medical condition. We request the doctors to apprise this court if the petitioner is found to be suffering from postpartum psychosis or whether any alternative medical treatment will be able to safeguard the well-being of the petitioner and the fetus. This exercise shall be carried out within the course of the day. The papers with regard to medical prescriptions should be forwarded by Aishwarya Bhati to the doctors at AIIMS. The petitioner shall appear before the medical board at 2 pm today. The report shall be furnished to Aishwarya Bhati, ensuring all the words are grammatically correct."

The CJI expressed its doubt on the prescription submitted and orally remarked, "There is no reference to the specific condition for which these drugs have been prescribed. Even for a common cold, a doctor typically mentions the ailment, such as "suffering from a viral cold, etc," in the prescription. However, these prescriptions do not provide any reference to the petitioner's condition. The doctor has not indicated the reason for prescribing these drugs. Should the Supreme Court place trust in these prescriptions, or have they been presented to serve a particular purpose? Was all of this orchestrated on September 23rd to strengthen the case? We must read between the lines."

Yesterday, the Court asked the Petitioner-mother to reconsider her decision regarding terminating the pregnancy and encouraging her to allow the viable unborn baby an opportunity to survive. The Court had remarked, "Should We Direct AIIMS To Carry Out An Act Of Foeticide?"

Representing the Union of India, Additional Solicitor General Aishwarya Bhati today apprised the Court that they were not able to convince the Petitioner to continue the pregnancy. ASG stated, "The petitioner is here, and we are unable to persuade her, so, Milords, you will have to decide. The MTP Act in India has been amended as a pro-choice legislation, whereas in many countries, it is pro-life. Pro-life countries entirely abolish the provision of pregnancy termination, while pro-choice countries strongly protect autonomy." The Additional Solicitor General (ASG) also stated that the law gives primacy to the life of the mother. She explained that when there is a threat to the life of a mother, pregnancy can be terminated at any point in time, up to 20 weeks based on a medical practitioner's decision. However, beyond 20 weeks, a medical board has to be set up, but if we need to save the life of a woman, then the medical board can be bypassed.

Regarding the judgments relied upon by the Petitioner, the ASG stated that "in the case of 'X' referred to by the Petitioner, the Petitioner had approached the High Court in a Writ Petition before completing 24 weeks, and the Bombay High Court judgment they rely on was related to a sexual assault victim. The opinion of the medical board has to be given primacy and should be considered. Each time, the court gives primacy to the medical board's opinion. In terms of facts, there is no dichotomy in the medical board's opinion; they state that the baby is viable with chances of survival. Regarding the petitioner's shifting stance, she had agreed with the doctors before." The ASG further added, "Sometimes we have to save a person by themselves."

On the other hand, the Petitioner submitted, "She came to Delhi in 2017 and settled here. She gave birth to her first child in 2017 through a Caesarean delivery. Three years later, she had her second child, also through a Caesarean delivery. Following the second delivery, she began experiencing severe symptoms of postpartum psychosis. It's essential to note that postpartum depression and postpartum psychosis are distinct conditions. She has been under continuous treatment since then, with a year of medication. She became aware of her pregnancy in September and, within the first five days, approached the Supreme Court."

However, the CJI stated that should the Supreme Court place trust in these prescriptions, or have they been presented for us to accept this information? It raises doubts about the legitimacy of these prescriptions. Was this all orchestrated to bolster this case? Let AIIMS conduct the tests to determine if the fetus has any abnormalities and adjourned the matter for Monday.

The Miscellaneous Application was filed by the Union of India intervening to protect an unborn child, and seeking recall of a previous order permitting the termination of a pregnancy that had advanced beyond 24 weeks, urged the petitioner, who is a mother, to reconsider her decision regarding terminating the pregnancy and encouraging her to allow the viable unborn baby an opportunity to survive.

The Miscellaneous Application (MA) was referred to a larger bench. This decision came after the two-judge bench, consisting of Justice Hima Kohli and Justice BV Nagarathna, had a disagreement regarding whether the married woman should be permitted to terminate her 26-week pregnancy.

Cause Title: Poonam Sharma v. Union Of India & Anr. [MA 2157/2023 in W.P.(C) No. 1137/2023]