Supreme Court rejects plea to abort 27-week-old pregnancy after a week of deliberations

A three-judge bench of the Supreme Court on Monday rejected a plea to abort a pregnancy that had crossed the threshold of 24 weeks under the Medical Termination of Pregnancy Act, 1971 (MTP Act) in view of a medical report that the foetus is viable..A bench of Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra said that it cannot go beyond the law as per which termination of pregnancy beyond 24 weeks is permissible only in case of foetal abnormalities or to save the life of the pregnant woman.Since this case did not fall under either of the exceptions, the plea was rejected.The Court passed the verdict this afternoon nearly a week after a division bench gave a split verdict in the matter on October 11. .The Court today directed the delivery of the child to be conducted at the All India Institute of Medical Sciences (AIIMS). The parents of the child are free to give the baby up for adoption if they wish to do so, the Court added. ."Under Article 142 of the Constitution, this Court has the power to do complete justice. However, this power may not be attracted in every case. 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 ... 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. For these reasons, we do not accede to the prayer for the medical termination of the pregnancy," the Court said. .The matter involved a married couple who had conceived a third time. The pregnancy had crossed the legally permissible limit of 24 weeks for abortions under the MTP Act.The Court was informed that the mother was not aware that she had conceived again since she was going through post-partum infertility and also suffered from post-partum depression..Over the course of earlier hearings, the three-judge bench had found itself torn on whether it should allow abortion after a doctor indicated that the foetus could be born with a heartbeat if it is delivered at present..Autonomy of mother triumphs, but can child be put to death on judicial order? Supreme Court in abortion plea.Before this, a Division Bench of Justices Hima Kohli and BV Nagarathna had delivered a split verdict in the matter. While Justice Kohli was not in favour of abortion, Justice Nagarathna opined that the view of the pregnant woman should be respected despite objections that the foetus would be born alive.The matter was marred by controversy, with the previous Division Bench pulling up the Central government for approaching CJI Chandrachud with an oral request to recall an earlier order passed by the two judges to allow the termination of the pregnancy.The CJI later broke a seven-judge Constitution Bench to hear the matter as part of the three-bench constituted to take a final decision following the split verdict of October 11. .Additional Solicitor General Aishwarya Bhati appeared for the Central government today and argued that the matter was not about being pro-choice or otherwise. "Now this is a Hobson's choice between preterm delivery and on-time delivery. And on-time delivery, it will give the child a fighting chance. I will stand by that. After 24 weeks, once it is a viable life choice, termination goes once the medical report says that the child is fine," she argued. Senior Advocate Colin Gonsalves submitted that as per international law, an unborn child or an unborn foetus does not have overriding rights."Foeticide has been permitted in last 12 years through a guideline of the government and it was laid down in the Nikhil Datar case. All abortions leads to death of foetus as it stills the heart of the child," he argued. He added that there were no gestational restrictions as to when a pregnancy can be terminated..The CJI, however, pointed out that India has specific laws on these matters which have to be complied with. "We have our own laws. Exceptions (where abortions are permitted beyond a certain limit) are to foetal abnormalities and to save life of a pregnant woman. In the absence of a challenge to the validity of the (MTP) Act, we have to consider the law as it is. Keep your powder dry for the challenge to the validity of the law. Government of India cannot act contrary to the mandate of this statute," the CJI observed. .The CJI added that India is not regressive compared to the situation in America after the Roe v. Wade ruling was overturned. "The legislature has done the act of balancing here in India in 2021. Now it is for courts to see if the balancing act is correct or not. Can we deny the power of the legislature to take such steps in these incremental matters? Why should we deny that power to a democratically elected legislature and are we better to do more than that?" he asked. .Gonsalves replied that India is regressive when it comes to its abortion laws, to which the CJI disagreed. "I do not think so. Every democracy has its own organs and they must function. You are telling us to override our statute based on WHO statement? I do not think this can be done", the Chief Justice of India said..The counsel for the woman reiterated that the pregnancy was unwanted. However, the Court ultimately decided not to accede to the pregnant woman's plea. .[Read judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.