The Supreme Court has instructed the married woman, who filed a petition seeking termination of her 26-week pregnancy, to appear before the All India Institute of Medical Sciences (AIIMS) medical board on Friday to undergo physical and mental evaluation.
The court issued the directions as it sought a report from the board on various aspects, including whether the foetus was suffering from any substantial abnormalities.
The 3-judge bench led by Chief Justice of India D Y Chandrachud, also comprising Justices J B Pardiwala and Manoj Misra, was hearing the Centre's application seeking recall of the top court's October 9 order permitting the woman to undergo termination of pregnancy at AIIMS.
The petitioner, a mother of two, had sought termination of the pregnancy, saying she was suffering from depression and was not in a position to raise a third child, emotionally or financially. 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 allowed the petitioner to proceed with the medical termination of her pregnancy. However, one of the doctors of the AIIMS medical board which examined the woman sent an e-mail on October 10 saying the foetus had a strong possibility of survival if the pregnancy was terminated at this stage. Following this, the central government filed a petition seeking a recall of this order. The court then directed AIIMS to defer the abortion procedures and heard the matter again.
The matter was first considered by a two-judge bench of the Supreme Court on Wednesday. However, the bench led by Justice Hima Kohli and Justice BV Nagarathna passed a split judgement, following which it was referred to a 3-judge bench. While Justice Kohli recalled the initial order, saying that her "judicial conscience does not permit the petitioner to terminate the pregnancy", Justice Nagarathna took a categorical view that the petitioner should be allowed to terminate the pregnancy.
On Friday, the CJI-led bench deferred the plea to Monday. It also sought to know if there was any evidence to suggest that the continuance of full-term pregnancy would be jeopardised by drugs prescribed for treating her mental ailment.
The court also asked AIIMS to carry out their evaluation of the mental and physical condition of the woman and to find out if a woman is suffering from postpartum psychosis and whether any alternate medication is available to protect the foetus.
"The petitioner is here. Unfortunately, we have been unable to convince her. She is still vulnerable," additional solicitor general Aishwarya Bhati earlier informed the bench.
While considering the petition, the CJI observed on Thursday that it cannot kill the child, stressing the need to balance the rights of an unborn child with the right to autonomy of the mother who has sought to abort the healthy foetus on account of her own ill health. Chief Justice D Y Chandrachud asked her counsel whether she wanted the apex court to tell the doctors at AIIMS to stop the "fetal heart" of a "living, viable foetus" under a judicial order.
