'Find Out Condition Of Foetus': SC Tells AIIMS On Aborting 26-Week-Old Pregnancy

"How can the child be put to death under a judicial order?" the CJI had asked on Thursday, 12 October.

3 min read
Hindi Female

A three-judge bench of the Supreme Court, hearing an abortion plea for a 26-week old pregnancy on Friday, 13 October, has asked the All India Institute of Medical Sciences to submit a report on the foetus' and the pregnant woman's by Monday, 16 October.

The apex court asked AIIMS to study:

  • if the "foetus is suffering from any substantial abnormality"

  • if the medicines that the woman is taking would have any affect on her carrying the pregnancy further

  • the mental and physical condition of the pregnant woman

  • if there's any alternate medication for postpartum psychosis that the woman can be put on that won't harm the foetus

according to Bar & Bench.

A three-judge bench of Chief Justice DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra was hearing the plea of a married woman who was seeking to terminate her 26-week pregnancy. 

What has happened till now: This comes a day after the bench had said that they couldn't infringe on the rights of the baby (foetus) to protect the rights of the pregnant woman – mentioning the need to find a "balance" between the two.

"We have to balance the rights of the unborn child.. Of course the autonomy of the mother triumphs.. but here nobody is appearing for the child.. How do we balance the rights of the child? Fact of the matter remains.. it is not just a foetus.. It is a living viable foetus and if given birth can survive outside.. If delivered now it will have serious medical issues.. so why not wait for 2 more weeks.. She does not have to keep the child... To put the child to death is only option and how can the child be put to death under a judicial order?"
CJI DY Chandrachud on 12 October, reported by Bar & Bench

Suffering from health issues: On 11 October, the apex court had delivered a split verdict on this case.

The woman seeking the abortion had told the court that she has health issues and has been suffering from postnatal depression and lactational amenorrhea.

This is her third pregnancy. In her plea, she told the court that she is “unwilling and unable” to raise another child. 

Initially, on 9 October, both Justices Hima Kohli and BV Nagarathna had allowed the pregnancy to be terminated.

AIIMS report says foetus might survive: But after an AIIMS report said that there is a strong possibility that the foetus might survive, the government asked the court to review the order.

Justice Kohli said she was now inclined towards dismissing the plea. However, Justice Nagarathna still stood by the initial order ruled by the bench.

Court’s reaction on the AIIMS report: After the AIIMS report was presented, the court questioned the government why the document was submitted only post the order. 

"Which court wants to stop a foetus with a heartbeat? Certainly not us, for heaven's sake. There is a way to overturn a court order, not like this. Why after order was passed? It is not like we did not hear you."
Justice Hima Kohli

Justice Nagarathna, agreeing with her, added, “She is under more stress now…”

The report essentially said that since the foetus’s heart has been formed, the abortion would be not be a “termination,” instead it would be a preterm delivery and foeticide. 

It said, “If the parents agree to keep the child this will take a major physical, mental, emotional and financial toll on the couple.”

Following this, the court also asked the woman if she can foster the baby till it's put up by adoption

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