No Substantial Foetal Abnormalities Or Medical Necessity To Save Mother’s Life: SC While Rejecting Petition To Terminate 26 Weeks Pregnancy

The Supreme Court dismissed the Petition to terminate a twenty-six weeks old pregnancy citing that neither the foetal has any substantial abnormalities nor is it a medical emergency to save the mother’s life.

The Court emphasized that having crossed the statutory limit of twenty-four weeks, requirements of either Section 3(2B) or Section 5 of the Medical Termination of Pregnancy Act 1971 (Act) must be fulfilled.

“Having crossed the statutory limit of twenty-four weeks, the requirements in either of Section 3(2B) or Section 5 must be met; b. There are no “substantial foetal abnormalities” diagnosed by a Medical Board in this case, in terms of Section 3(2B). This Court called for a second medical report from AIIMS to ensure that the facts of the case were accurately placed before it and no foetal abnormality was detected; and c. Neither of the two reports submitted by the Medical Boards indicates that a termination is immediately necessary to save the life of the petitioner, in terms of Section 5”, the Bench headed by DY Chandrachud and comprising Justice J.B Pardiwala and Justice Manoj Misra observed.

Advocate Amit Mishra appeared for the Petitioner and Additional Solicitor General Aishwarya Bhati appeared for the Respondents.

The Petitioner contended that she had been suffering from lactational amenorrhea and had not discovered her pregnancy until it was twenty-four weeks at the time. She sought medical assistance but was refused due to the provisions of the Medical Termination of Pregnancy Act 1971 (Act) read with the Medical Termination of Pregnancy Rules 2003 (Rules). The Petitioner contended that she suffers from post-partum depression and her mental condition does not permit her to raise another child. The case was previously heard by a two-judge Bench comprising Justice Hima Kohli and Justice B V Nagarathna, whereby the Petition was allowed and permitted the medical termination of the pregnancy on the ground that continuing with the pregnancy could seriously imperil the mental health of the petitioner. However, the Doctor sent an email to ASG stating that the foetus has a strong chance of survival and seeking directions from this Court as to whether the foetus heartbeat ought to be stopped. The matter was, therefore, referred before a three-judge bench. Hence, the Petitioner approached the Court by way of a Miscellaneous Application seeking permission to terminate her ongoing pregnancy. 

The Court ascertained the following issues:

“a. What is the nature of the jurisdiction under which this Court is adjudicating this case; and

b. Can the relief sought in the writ petition be granted?”.

The Court noted that per the provisions of the Act, pregnancy up to twenty weeks can be terminated after an opinion of an RMP under Section 3(2) of the Act; between twenty and twenty-four weeks, an opinion of two RMPs under Section 3(2) along with Rule 3B and lastly if pregnancy is over twenty-four weeks, if the termination is required to save the life of the pregnant woman, the opinion of one RMP in terms of Section 5. The Bench noted that the pregnancy can also be terminated if there are substantial foetus abnormalities, with the approval of the Medical Board in terms of Section 3(2B) read with Rule 3A(a)(i).

Furthermore, the Bench reiterated that once a judgment or order attains finality, a party seeking to challenge the decision rendered may do so only by taking recourse to one of the following: a. Invoking the jurisdiction of the court to review the judgment or order; b. Preferring an appeal against the judgment or order (where an appeal lies); or c. In the case of the Supreme Court, filing a curative petition. Therefore, the Court held that the case is within the jurisdiction of the Court due to the exceptional circumstances of the case.

“In the present case, this Court is justified in exercising its jurisdiction under Article 142 in view of the following circumstances: a. This is not an ordinary civil case. Rather, it is one which concerns the viability of a medical termination of a pregnancy and the course of action to be adopted by the doctors on the basis of the development of the foetus; b. Certain aspects of the case which ought to have been brought to the attention of this Court came to light after the order dated 9 October 2023 had been passed. This was not within the control of any of the parties to the case but was the result of the actions of a third party altogether (the Medical Board). However, this information could have had a bearing on the directions issued by this Court; and c. There was immense urgency in this matter”, the Bench observed.

The Bench noted that stopping the heartbeat of the foetus would significantly affect his mental and physical abilities. Therefore, the Court directed the State to ensure that the adoption process of the child, after delivery, is conducted in a fast and smooth fashion. Although, the Court also granted the right to the parents to decide whether to give the child up for adoption.

Accordingly, the Court dismissed the Petition and recalled the earlier order.

Cause Title: X v Union Of India (2023 INSC 919)

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