Should We Direct AIIMS To Carry Out An Act Of Foeticide: Apex Court Urges Mother To Reconsider Decision To Abort 26 Week Foetus

The Supreme Court today in response to a Miscellaneous Application, 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 bench, consisting of Chief Justice D.Y. Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra, decided to adjourn the Miscellaneous Application (MA) filed in the Writ Petition for tomorrow after recommending the counsels to encourage the petitioner-mother to carry the baby for a few more weeks, at which point the State could assume responsibility for the baby's care.

The Chief Justice remarked, "AIIMS is suggesting that if you wait for a few more weeks, not even full term, the chances of a baby being born healthy are much higher. We have only two choices if we have to reject the Government's application and allow your Petition, which has already been allowed: either to stop the foetal heart, which AIIMS says would mean directing AIIMS to carry out an act of foeticide. The other option is to direct that the baby should be delivered by AIIMS, and there is an absolute likelihood, if not probability, that the child is going to be mentally and physically deformed."

The Chief Justice also added, "If you wait for a few more weeks, AIIMS says that we will be able to make the baby survive. We are giving you an opportunity to make the decision. We will not shy away from making our own decision." The matter was adjourned for tomorrow for the parties to take a decision. Continuing, Justice Pardiwala said, "Persuade your client to keep this pregnancy and then the infant will be taken care of by the State."

The Miscellaneous Application (MA) was referred to a larger bench yesterday. 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.

Representing the Union of India, Additional Solicitor General Aishwarya Bhati informed the Court that following an order issued on October 5th, the medical board had denied the request for pregnancy termination, citing justifiable reasons. The current status indicates that the baby has a heartbeat, and, most importantly, it is viable with a reasonable chance of survival. The petitioner had a history of postpartum psychosis after her second delivery in 2022, which further warrants reconsideration of termination. A professor's opinion also supports the notion that the baby is viable.

ASG further submitted that AIIMS has confirmed signs of life, and thus, the Supreme Court's permission is required to determine whether foeticide should be performed.

She added, "In my respectful submission, Justice Nagarathan's judgment has two serious problems. First, the right to choice is not an absolute right like a fundamental right; it is subject to laws made by the Parliament and has withstood the scrutiny of My Lords. The 'X' judgment prevented an unmarried woman from continuing the pregnancy beyond 24 weeks." ASG also stated that this situation could be very difficult and chaotic for the country. However, the CJI pointed out that as per the judgment, married and unmarried women are now on equal footing.

ASG further added that they had attempted to counsel her, and she initially agreed. ASG stated, "We suggested that the baby could be given for adoption, and AIIMS would take care of it. She was in a state of indecision, which was detrimental to her health. She says she doesn't want the child; she is going to have a delivery right now. She will have a c-section. The child is viable. What they are saying is, until the Court tells us... to commit foeticide we can't terminate".

However, the Counsel appointed as Amicus Curie, AoR Rahul Sharma argued that she cannot continue her pregnancy, as every day is becoming more difficult for her. Sharma mentioned that she was suffering from postpartum depression and that if they terminate the pregnancy now, it might alleviate her condition, as she has been unable to take care of herself as the pregnancy progressed. She even attempted suicide, he said.

Considering the submissions, the CJI remarked, "This is not a case of a minor or a rape survivor. What was she doing for 26 weeks? She already has two children. What was she doing until now? Now you want us to tell the doctors to stop the fetal heart. You want the child to be born alive. If the child is born alive right now, the doctor says the child may have some mental and physical effects. If we delay the delivery by a few weeks, the child may be normal." The CJI also advised the counsel to help the client understand this.

The CJI stated, "Undoubtedly, women's autonomy should be considered, but you should also be aware that whatever you do will affect the child. How do we balance the rights of the child? No one is representing the child here. You are representing the mother, and Ms. Bhati is representing the Government. Who is here for the rights of the child?"

The CJI further added that it is not a risky fetus but a normally viable fetus. However, if delivered today, the child may experience serious physical and mental deformities. The CJI clarified that they are not compelling her to keep the child, but she simply needs to wait for two weeks. Alternatively, should they instruct AIIMS to terminate the child under judicial order? The CJI pointed out that every mother experiences postpartum depression, but does it really take 26 weeks to understand that?

The petitioner, seeking termination of pregnancy, stated that she is not highly educated, comes from a modest background, got married in 2017, and has already delivered two children. She has been taking medication for depression since last year and subsequently developed postpartum psychosis. She emphasized that no mother wants to terminate her child. However, the CJI emphasized that they are not doctors, and only time will reveal the outcome in two weeks.

The Court will now consider the matter tomorrow.

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