In a significant observation, the Supreme Court on Thursday said though a woman’s autonomy is important, the rights of an unborn child cannot be ignored.
A three-judge bench led by Chief Justice D.Y. Chandrachud was hearing a petition of a married woman seeking permission for medical termination of her 26-week pregnancy.
"Consistent as we are about the need for her autonomy, we cannot be oblivious of the rights of the unborn child," CJI Chandrachud said.
The woman, a mother of two children, had approached the court, saying she was suffering from depression and was not in a position to raise a third child, emotionally or financially.
The bench, which also included Justices J.B. Pardiwala and Manoj Misra, asked why she didn’t seek permission for abortion earlier.
"Do we issue an order for the child's death through a judicial ruling,” the CJI asked as he advised the woman's counsel and the centre's lawyer to speak to her before the next hearing on Friday.
Under the Medical Termination of Pregnancy (MTP) Act, the upper limit for the termination of pregnancy is 24 weeks for married women, special categories including survivors of rape, and other vulnerable women such as the differently-abled and minors.
On October 9, the top court had allowed the petitioner to proceed with the medical termination of her pregnancy. The central government, however, filed a petition seeking a recall of this order and cited the advice of a panel of doctors at AIIMS against abortion.
Following this, the court directed the premier hospital to defer the abortion procedures and heard the matter again.
On October 11, a two-judge bench of the apex court delivered a split verdict, with one judge voicing her disinclination to allow abortion and the other asserting that the woman's decision "must be respected".
While Justice Hima Kohli wondered which court will say "stop the heartbeat of a foetus" and made it clear she was not inclined to permit the 27-year-old woman to terminate her pregnancy, Justice B.V. Nagarathna said the court should respect the decision of the woman who has remained determined to abort it.
In view of the disagreement between them, the CJI constituted a three-judge bench which heard the matter on Thursday.
"The child is ready to be born. It won't be right to abort because the foetus shows signs of life. The order to abort must be recalled," said Additional Solicitor General Aishwarya Bhati, appearing for the Centre.
The top law officer also pointed out that the petitioner's counsel had cited a court ruling in a rape survivor's plea for permission to abort.
"She (petitioner) is no rape survivor. She is not a minor. What was she doing for 26 weeks?,” she asked.