The Supreme Court of India has taken the unusual step of reviewing its previous decision to allow the termination of a 26-week pregnancy. The decision to review was prompted by concerns about the viability of the unborn child, with the central issue being whether the child could survive if aborted. Chief Justice DY Chandrachud, heading the bench, has asked the Centre to file a recall application, and the matter will be listed for further consideration on Wednesday.
The initial decision to allow the termination of the pregnancy came just 24 hours before the review was requested. The Supreme Court had to strike a delicate balance between the life of the unborn child and the pleas of the mother, who cited various health issues and postnatal depression as reasons for seeking the termination.
The dilemma at the heart of the case revolves around the viability of the 26-week-old fetus. A medical board from the All India Institute of Medical Sciences (AIIMS) was formed to assess the situation. The AIIMS panel determined that the baby was currently viable, showing signs of life and having a strong possibility of survival if delivered. They sought guidance from the Supreme Court on whether a feticide (stopping the fetal heart) should be performed before terminating the pregnancy.
The panel explained that feticide is typically performed in cases of abnormal fetal development but is not commonly carried out on a normal fetus. They emphasized that if feticide is not performed, the procedure would not be considered a termination but rather a preterm delivery, requiring intensive treatment and care. Babies born prematurely often need extensive medical attention, and there is a higher risk of physical and mental disabilities.
Additional Solicitor General (ASG) Aishwarya Bhati informed the Chief Justice that the AIIMS panel’s report was inconsistent with the previous judgment. She argued that if the fetus were born alive, it would be considered murder rather than the abortion of the baby.
Understanding the gravity of the situation, the Chief Justice ordered the formation of a bench to hear the matter on the following day.
In the previous judgment, a bench of Justice Hima Kohli and Justice BV Nagarathna had allowed the termination of the pregnancy, respecting the petitioner’s decision. The petitioner, a mother of two children, cited various health-related issues and her inability to financially, emotionally, and socially raise a third child while breastfeeding her second.
The petitioner also highlighted that the medical report stated that pregnancy does not typically occur during Lateral Amenorrhea, leaving her unaware of the possibility of becoming pregnant again.
The AIIMS panel’s recommendation emphasized the need for a directive on whether the parents were willing and capable of raising the child, considering the potential physical, emotional, and financial toll on the couple. If the couple agreed to adoption, a clear process should be established to ensure a better future for the baby.
Under the Medical Termination of Pregnancy (MTP) Act, the upper limit for the termination of pregnancy is 24 weeks for married women, with special categories, including survivors of rape, differently-abled women, and minors. The case presents a unique challenge to the legal and medical communities, as they grapple with the complex issues surrounding viability, pregnancy termination, and the welfare of both the mother and the unborn child.
