Cannot direct doctors to stop unborn's heartbeat; Post partum psychosis can be managed: SC refuses 26 weeks MTP

A bench of Chief Justice of India DY Chandrachud, also comprising Justice JB Pardiwala, observed that if a medical termination were to be conducted at this stage, the doctors would be faced with a viable foetus.

"One of the options before this Court, which the email from AIIMS has flagged, is for it to direct the doctors to stop the heartbeat. This Court is averse to issuing a direction of this nature for the reasons recorded in the preceding paragraph. The petitioner, too, did not wish for this Court to issue such a direction. This was communicated by her to the court during the course of the hearing," the court said.

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"This Court is averse to issuing a direction of this nature for the reasons recorded in the preceding paragraph," the court said.

"In the absence of a direction to stop the heartbeat, the viable foetus would be faced with a significant risk of lifelong physical and mental disabilities. The reports submitted by the Medical Board speak for themselves," the court said.

"For these reasons, we do not accede to the prayer for the medical termination of the pregnancy," the court said.

The court directed that the delivery will be conducted by AIIMS at the appropriate time. The Union Government has undertaken to pay all the medical costs for the delivery and any incidental costs.

The court said that the decision of whether to give the child up for adoption is entirely that of the parents.

The court noted that the length of the pregnancy has crossed twenty-four weeks, and it is now approximately twenty-six weeks and five days.

The court said that a medical termination of the pregnancy cannot be permitted because it has crossed the statutory limit of twenty-four weeks. The requirements in either Section 3(2B) or Section 5 must be met.

"There are no "substantial foetal abnormalities" diagnosed by a medical board in this case, in terms of Section 3(2B). This Court called for a second medical report from AIIMS to ensure that the facts of the case were accurately placed before it and no foetal abnormality was detected," the court noted.

Neither of the two reports submitted by the medical boards indicates that a termination is immediately necessary to save the life of the petitioner, in terms of Section 5 of the MTP Act.

The court rejected a woman's plea, seeking medical termination of 26 weeks of pregnancy and observing if it is allowed the it would violate the provisions under the Medical Termination of Pregnancy (MTP) Act.

All India Institute of Medical Science (AIIMS) on Monday apprised the Supreme Court that no abnormality has been detected in the foetus of a woman who had petitioned to seek the medical termination of her 26-week pregnancy and that with proper care and treatment under appropriate medical supervision, the mother and baby can be managed well during pregnancy and postpartum psychosis.

"It is felt that with proper care and treatment under appropriate medical supervision, the mother and baby can be managed well during pregnancy and postpartum, as has been previously evidenced by her response to medications. In case of worsening of symptoms, she may be admitted and treated," the AIIMS report said.

The hospital's report was filed after the apex court directed it to do so in an order on October 13.

The woman has sought the termination of her 26-week pregnancy, whereas the Centre has filed an application seeking a recall of the top court's order by which the woman's petition has been allowed.

Additional Solicitor General Aishwarya Bhati submitted the AIIMS report, which stated that the woman has a past history of postpartum psychosis and is currently controlled by medications.

The AIIMS report also said that, as per the assessment by ultrasonography and foetal echo, the foetus did not present any structural anomalies.

AIIMS also said that the continuation of pregnancy to full term while the woman is on the revised medications is not likely to significantly increase the risk of adverse outcomes for the mother and foetus as compared to other pregnant women.

The court also took note of the AIIMS report.

ASG Bhati, appearing for the Centre, apprised the court about the Medical Termination of Pregnancy Act and said that it is a liberal and pro-choice legislation aimed at giving absolute primacy to the reproductive autonomy and health of the woman while balancing the rights of a viable unborn child.

She further added that now it is not a matter of choice but a choice between pre-term delivery and full-term delivery.

She assured the court that the government would assist her and her husband with everything, including medical counselling.

Senior Advocate Colin Gonsalves apprised the court on the issue related to the unborn and said that in international law today, there is no right to the unborn child, and the right of the woman is absolute.

But the court remarked with a question about whether the woman should be allowed to abort even at 33 weeks of pregnancy in those cases where the foetus is not abnormal.

The court also said that the challenge to be law should be dealt with in some other proceedings, as now the matter is limited to the woman and the state.

The matter was referred to a three-judge bench after a two-judge bench on October 11 gave a split order on the married woman's plea seeking termination of a 26-week pregnancy.

The Supreme Court on Wednesday gave a split order on the married woman's plea seeking termination of a 26-week pregnancy, as one of the judges ruled against the termination while the other judge expressed disagreement and said that the woman's decision must be respected to undergo the procedure of termination of her pregnancy.

A two-judge bench of Justices Hima Kohli and BV Nagarathna gave the split decision while hearing the Centre's plea seeking the recall of its earlier order allowing the woman to undergo the procedure of termination of her pregnancy.

Justice Hima Kohli said that her judicial conscience does not allow her to permit termination. Expressing disagreement, Justice BV Nagarathna said that the woman's decision to terminate her pregnancy must be respected.

The woman has submitted an affidavit stating she does not wish to carry out her pregnancy due to her mental condition and ailments.

On October 9, a bench of justices, Hima Kohli and BV Nagarathna, directed the woman to visit the Obstetrics and Gynaecology Department, AIIMS, New Delhi, on October 10.

The court had also directed the AIIMS to admit the petitioner to undergo the procedure of termination of her pregnancy at the earliest, with follow-up as may be advised by the treating doctors.