"Can't Kill Child": Supreme Court Asks To Avoid Pregnancy Termination At 26 Weeks, Wait For Right Time To Deliver

The Supreme Court, addressing a request for Medical Termination of Pregnancy (MTP) from a married woman, emphasised prioritising the woman's rights but also acknowledged the need to balance the rights of the unborn child, the Indian Express reported.

On Thursday (12 October), Chief Justice of India DY Chandrachud, leading a three-judge bench, highlighted the ethical dilemma of terminating the pregnancy at 26 weeks. The woman's plea was received by the CJI after an all-woman bench disagreed on giving the go-ahead for the MTP procedure.

While Justice BV Nagarathna on Wednesday respected the petitioner's decision not to continue the pregnancy, Justice Hima Kohli expressed reservations, stating that her conscience couldn't permit stopping the heartbeat of a fetus with life.

The bench of CJI Chandrachud and Justices JB Pardiwala and Manoj Misra suggested the woman consider waiting a few more weeks for the child's better chance of a healthy birth, with the option for adoption.

Advocates Amit Mishra and Rahul Sharma, counsel for the woman, and Additional Solicitor General Aishwarya Bhati, who appeared for the Centre, were asked to talk to the pleading lady. The court will revisit the matter on Friday.

On Tuesday, a communication from a doctor at AIIMS to the Additional Solicitor General (ASG) indicated that the fetus seemed "viable," suggesting a high likelihood of survival.

The CJI emphasised the delicate balance between a woman's autonomy and the rights of the unborn child. “We can’t kill the child... She has rights under various provisions of the Constitution. But equally, you have to be conscious of the fact that ultimately, whatever you are doing is going to affect the rights of an unborn child,” he said.

He discussed the potential risks of immediate delivery, causing physical and mental deformities, and urged careful consideration before deciding on abortion. "Balancing duties, balancing what is in the social good. I find it very difficult to come to terms with this order (allowing abortion) actually,” he said.

"We are not compelling her to keep the child. The State doesn’t say that you must keep the child. But having waited for 26 weeks… to put the child to death is the only other option. All that she has to do is wait another two weeks,” the CJI said.

The woman's representative mentioned that the petitioner, facing challenges in self-care, discovered the pregnancy only in the 24th week due to lactational amenorrhea and depression.

When the bench inquired whether the petitioner was willing to wait for a few more weeks, her counsel questioned the practicality, asking which mother would consent to parting with her child after waiting for a full nine months and delivering.

Chief Justice of India (CJI) responded, contemplating the difficult decision faced by a mother who knows that delivering today and not keeping the baby for another two weeks might result in a child destined to be physically and mentally abnormal — a situation akin to a Hobson's choice.

Observing that the woman declined foeticide but expressed reluctance to keep the child even if it survived, the CJI questioned why she didn't opt for abortion a few weeks later. In this scenario, the child would have a better chance of survival.

He emphasized that the situation involved a viable child, not strictly classified as Medical Termination of Pregnancy (MTP). The CJI highlighted the ethical dilemma faced by AIIMS due to the prospect of stopping the fetal heart, effectively ending the child's life.

Justice Pardiwala urged the woman's counsel to comprehend the court's perspective.

"We face a choice: either we authorise the medical procedure to stop the fetal heart, known as foeticide, which, as you mentioned, is not the preferred option. Removing the fetus at 26 weeks and placing it in neonatal care carries inherent risks," the CJI explained.

"If we do so today, it may result in mental and physical deformities in the child's growth. Why opt for this? We encourage you to persuade your client to continue the pregnancy and deliver when the time is right, as dictated by nature. At that point, the State will ensure the infant's care," he concluded

The Chief Justice pointed out that it is currently 26 weeks, whereas a typical infant is delivered at nine months, which equates to 36 weeks. He suggested that they might not need to wait the full term and could consider carrying out the procedure after 8 months.