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Law

SC Says No For Abortion; No Immediate Threat to Mother, Foetus Normal

Supreme Court said Indian abortion laws were pro-choice and our legislation was way ahead of Roe v Wade.

By - Ritika Jain | 16 Oct 2023 10:13 AM GMT

Supreme Court today denied permission to a married woman with post-partum depression to terminate her almost 27-week foetus. “AIIMS has sought for a direction to stop the heart of the foetus and the court is averse to passing such a direction," the top court said.

“The petitioner also doesn't wish to do the same,” Chief Justice of India DY Chandrachud said while reading out the order. “Permitting the termination of the pregnancy at this stage would violate the rules of the Medical Termination of Pregnancy Act since there’s no immediate threat to the mother and this is not a case of foetal abnormality," the CJI added.

The Supreme Court directed the Centre to bear all medical costs and clarified that it was up to the mother if she chose to give up the child for adoption.

The top court’s decision comes on the Centre’s plea seeking a recall of the top court’s October 9 order after AIIMS, New Delhi said the foetus was viable. The Supreme Court’s all-women bench on October 11 delivered a split verdict and referred the matter before a larger bench of three judges.

Unique case

The woman’s case was unique. She was a married woman who sought the termination of the 27-week foetus because she was suffering from post-partum depression. The Medical Termination of Pregnancy (MTP) Act, 2021 legally allows the abortion of a foetus up to 20 weeks and up to 24 weeks in certain cases. Pregnancies over 24 weeks are allowed in exceptional cases only. In this case, the petitioner is a married woman with no physical danger to her life and no abnormality was detected in the foetus.

In September 2022, the Supreme Court ruled that a woman has sole autonomy over her body. The top court said all women, irrespective of their marital status, or caste were entitled to avail of abortion rights up to 24 weeks of their pregnancy.

The hearing captured everyone’s collective imagination as the top court was caught in a pro-life versus pro-choice debate and where our country’s legislation stands on this account. Even as the Centre argued that there is a dichotomy between pro-life and pro-choice, the Supreme Court clarified that our country’s legislation was clearly pro-choice.

There were several attempts to convince the woman to sustain the pregnancy for a few weeks to give the child a chance at survival. Medical opinion sought by the court said that If she delivered at this stage, the survival of the child would be weak as it would suffer mental and physical disabilities, however, if she continued with the pregnancy for atleast two more weeks or the full term, the child would have a better survival rate.

“Why doesn’t she consider carrying the pregnancy for a few weeks more and give the child a chance. That’s why AIIMS had a serious ethical dilemma," the top court had asked.

However, at the time, the woman was firm in her decision to terminate the pregnancy.

Easy to criticize our country; abortion laws in India are not regressive: Supreme Court

Supreme Court today observed that it was easy to criticise our country’s laws while pointing out that abortion laws in India were not regressive.

“…You know what has happened in the United States of America after Roe v Wade (where the US Supreme Court banned abortion)? Indian law is not regressive. We should also be conversant of the fact that it's easy to criticise our own country...,” Chief Justice of India DY Chandrachud said during the hearing.

Last week, responding to the Centre’s argument that there was a dichotomy in the debate on pro-life versus pro-choice, the top judge said our laws are pro-choice and one must look at the case from that lens.

When does life come into being? When do they get rights? Supreme Court

The plea filed by a married woman with post-partum depression seeking the termination of her almost 27-week foetus has raised several points for discussion. When does life come into being? CJI Chandrachud asked last week during one of the hearings on this issue.

"Who is fighting for the child?," the CJI had asked while considering the dilemma of how to balance the rights of the unborn child versus that of the mother. Every woman undergoes some extent of post-partum depression, the judge had observed.

Senior advocate Colin Gonsalves, who was assisting in this matter, said that as of today, in India we do not have rights for an unborn child. “The rights begin when the foetus is born; till then the woman’s right is absolute,” Gonsalves said. “In this case, the unborn child’s rights are being put before that of a woman’s rights,” the senior advocate submitted.

“Fetecide has been done for the past 10-12 years. It is done by a guideline issued from the government of India which authorizes it," he said clarifying that “all abortions result in the termination of fetal heart”.

“If the foetus is less than 24 weeks old, only one injection is given, post 24 weeks there are two injections. Therefore, to say this (fetecide) is a shocking and surprising phenomenon is not true,” Gonsalves had said supporting the woman’s plea for abortion.