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"The length of the pregnancy has crossed 24 weeks. A medical termination of the pregnancy cannot be permitted," the Supreme Court ruled on Monday, 16 October, hearing an abortion plea from a woman who is 26 weeks pregnant.
This just happened: A three-judge bench of the Supreme Court, denying the 27-year-old married woman's plea to terminate her pregnancy said:
"AIIMS has sought for a direction to stop the heart of the foetus. This court is averse to passing such a direction. The court has clarified that it is up to the mother to give up the child for adoption or not."CJI DY Chandrachud on 16 October, reported by Live Law
The court said: Since the woman is 26 weeks and five days pregnant, terminating the pregnancy would violate:
Section 3 of the Medical Termination of Pregnancy Act (MTP), which states that an abortion can take place only upto the gestation period of 24 weeks
Section 5 of the MTP Act which states that two registered medical practitioners need to give a go-ahead to the abortion (which the AIIMS report has opposed in this case)
Some context: The petition was filed by a woman who urged the Supreme Court to allow her to abort her foetus (after the 24-week period during which it's allowed) since she was suffering from postpartum psychosis and was already having a tough time since this was her third pregnancy.
You should read on:
"Article 142 can be used to do complete justice. But it should not be used in every case. Here doctors will face a viable foetus. The delivery to be conducted by AIIMS at the appropriate time. Should the couple wish to give up the child for adoption the Centre will assist the parents. The choice to give the child up for adoption depends on the parents."CJI DY Chandrachud on 16 October, reported by Bar & Bench
Lots of back & forth: On 9 October, a two-judge bench of the apex court, with Justices Hima Kohli and BV Nagarathna, had allowed the pregnancy to be terminated. A day after that, the All India Institute of Medical Sciences presented a report saying that the foetus had a good chance of survival.
This led to a split verdict by the bench on 11 October, when Justice Kohli said she was now inclined towards dismissing the plea.
On 13 October, a three-judge bench of Chief Justice DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra took up the case and 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 court also asked AIIMS to study the mental and physical condition of the pregnant woman and if there's any alternate medication for postpartum psychosis that the woman can be put on that won't harm the foetus.
Why so much special focus on this case? On 12 October, the bench 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
The AIIMS report had confirmed that the foetus could survive, and aborting it at the 26 week mark would essentially be foeticide since the heart was formed. The medical board instead appealed to the court to ask the petitioner to carry her pregnancy to completion and then put the baby up for adoption.
However, on 16 October, the petitioner told the court:
"This was an accidental and unplanned pregnancy. The woman has asked me to tell your lordships that she doesn't think she can carry on her pregnancy for the next three months... it's a violation of her rights."
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