Last Updated on October 13, 2023 by News Desk
Recently, Justice BV Nagarathna observed that if a pregnant woman is determined to terminate her pregnancy then primacy must be given to her decision.
“If despite the said counselling, a pregnant woman is, as in the instant case, determined to terminate the pregnancy, then primacy must be given to her decision by all concerned including courts of law.”
as per live law report, the Supreme Court bench comprising two woman judges, Justice Hima Kohli and Justice BV Nagarathna, passed a split order on a plea filed by a 27-year-old woman seeking termination of her 26-week-old pregnancy. Due to the difference of opinion between the two said judges, the matter was referred to a 3 judge bench headed by CJI DY Chandrachud.
It has to be noted that the two-judge bench had earlier passed the order, on 9 October, allowing the woman’s plea to terminate the pregnancy after observing that she was suffering from postpartum depression and was not emotionally, financially and mentally stable to raise the third child. But the order was recalled after the application was made by the Union of India which cited an email sent by a doctor of All India Institute of Medical Sciences (AIIMS) stating that the foetus was healthy and had a strong chance of survival.
Considering the email, Justice Kohli recalled the initial order stating that her judicial conscience does not permit her to allow the termination. She remarked, “Which court will say stop the heartbeat of a foetus which has a life.” She further expressed her disappointment at the doctor’s conduct of sending an email to recall the decision despite being part of the medical board that approved and favoured the termination of pregnancy. “All that has been stated and pointed out in the email dated 10.10.2023, ought to have been made part of the earlier report for this court to have had a clearer perspective.”
However, Justice Nagarathna believed that there was no reason to interfere with a well-considered order. She contended that the woman, who is already a mother of two children with one child being the age of one year only, has shown her strong determination to terminate her pregnancy due to her financial and emotional instability. Therefore her decision must be respected by the court.
“This is not a case where the question of the viable baby being born or unborn is to be really considered, when the interest of the petitioner must be given more preference. that she has reiterated that the medicines she is taking for her mental condition does not permit her to continue with her pregnancy, I find that her decision must be respected by the Court.” She said.
She also observed that the foetus is dependent on the mother and should not be recognised as an individual personality. “its very existence is owed to the mother. Where the physical or mental health of the mother is under threat, she cannot be forced to continue her pregnancy which might endanger her life. Such position is contrary to articles 21 and 15(3) of the constitution.” The petitioner had previously informed the Court that she had used the contraceptive method of Lactational Amenorrhea since she was breastfeeding her second child. However, this contraception method failed and resulted in her pregnancy, which she discovered belatedly.
The matter is heard by the three-judge bench which, on Thursday, showed reluctance in granting permission to terminate pregnancy. the bench went through her medical prescriptions to notice that none of these documents mentioned how she was diagnosed with postpartum depression of psychosis or why she was prescribed drugs. Therefore, the bench has asked for a fresh medical report showing her medical condition before taking the final decision.
The matter has now been listed on October 16.
Written by Shagun Behal
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