Women's Autonomy Important, So Is The Right Of Unborn Child: SC

The Supreme Court on October 12 highlighted the importance of balancing the rights of a woman to autonomy and choice with the rights of an unborn baby.

The three-judge bench, consisting of Chief Justice of India DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra, was hearing a plea seeking the medical termination of a married woman who is 26 weeks pregnant.

SC On Married Woman Abortion Plea

The woman, a mother of two, approached the top court seeking the termination of her third pregnancy at 26 weeks since she was suffering from post-partum depression and was not in a position to raise a third child emotionally, physically, or financially.

On October 12, the court expressed serious concern about allowing her plea because allowing the termination of pregnancy at this stage after the medical report stated that the foetus had a high chance of survival may amount to foeticide.

CJI DY Chandrachud remarked that while the need for a woman’s autonomy is recognised, the bench cannot be oblivious to the rights of the unborn child.

A Little Background

The matter was directed to the three-judge bench after a two-judge bench delivered a split verdict on allowing the abortion. On October 9, the two-judge bench consisting of Justice Hima Kohli and Justice BV Nagarathna allowed the woman’s petition for termination of pregnancy. 

However, the Union Government later filed an appeal seeking the order to be recalled in light of a medical report that suggested the possibility of the survival of the foetus. As the two-judge bench could not reach a consensus upon hearing the union’s plea for recall, the matter was directed to the CJI’s bench.

CJI Chandrachud asked, "What do you want us to tell the doctors to do? To close the foetal heart.".

Woman's Counsel's Argument

The woman’s counsel said that the woman does not want to abort the child now; she is seeking permission to deliver the child through a C-section instead of waiting until full term. The counsel argued that the petitioner was not in a mental state to proceed with the pregnancy until the end of the term. He also added that the woman had given birth to her second child in September 2022 and was suffering from postpartum depression, which will only worsen if the pregnancy is continued.

The Supreme Court, however, seemed unwilling to accept this request, as the medical report suggests that delivering the child preterm could result in the child being born with physical or mental abnormalities. The CJI suggested that the woman could wait for a few more weeks and have a full-term delivery.

She further distinguished the present case from those of previous cases where the pregnant woman was either a minor or a survivor of sexual assault. He stated she is a married woman. What was she doing for 26 weeks? She has two children, and she knows the consequences too. What do you want us to tell the doctor to do? To close the foetal heart? AIIMS wants the court to issue that direction."

He also remarked that we must also consider the rights of the unborn child. While the woman’s autonomy is important, she has a right under Article 21; the court must also be conscious of the fact that whatever is done will affect the rights of the unborn child.

SC's Stand On The Case

"Who is appearing for the unborn child? You're for the mother, Ms. Bhati for the government... How do you balance the rights of the unborn child? It's a living, viable foetus. Today, its chances of survival are there, but very likely that a child will be born with deformities. If she waits for two more weeks...to put the child to death the only option? How can the child be put to death under judicial order?" asked the CJI.

The CJI clarified that the bench did not intend to ridicule the woman or doubt the seriousness of postpartum depression, but stated that they had to look into other facts too. “Did it take her 26 weeks to realise?” asked the CJI.

While the woman’s counsel argued that she was a poor woman and wasn’t well educated, the bench refused to accept the argument. The CJI underlined that if the child was born with deformities, it would have fewer chances of being adopted.

The bench will take up the matter on October 13 at 10.30 a.m. Meanwhile, the bench has directed the counsel to speak to the woman about the possibility of continuing the pregnancy.

Suggested Reading: Every Indian Has An Obligation To Consider Family Planning, Says SC