SC asks for fresh AIIMS report on 26-week pregnancy termination case, hearing on Monday

NEW DELHI: The Supreme Court on Friday while hearing the petition filed by a married woman to terminate her 26-week pregnancy directed the AIIMS medical board to file a fresh report on the health of the foetus and whether there was any impact of the medicines prescribed to the woman for treatment of post-partum psychosis on the health of the foetus.

A bench comprising CJI D.Y. Chandrachud, Justices J.B. Pardiwala, and Manoj Misra heard the matter for the second day after another bench had delivered a split verdict on Wednesday.

The bench directed the medical board to submit a report on whether there was any substantial abnormality as per subsection (2)(b) of section 3 of the MTP Act.

The bench also asked the medical board to examine if there was any evidence to suggest that the continuance of pregnancy full-term would be jeopardised by drugs prescribed for the treatment of post-partum psychosis.

The CJI further asked the board to find if there is any alternate medication available to protect the foetus if the woman is suffering from post-partum psychosis and needs treatment for the same.

The court will again take up the matter for hearing on Monday after the AIIMS medical report is submitted.

The Counsel appearing for the woman had submitted before the court that the petitioner has had two c-sections deliveries and is suffering from post-partum psychosis from the delivery.

He further drew the court's attention to the difference between post-partum depression and post-partum psychosis. Saying that the woman in question cannot go one day without the medications which are harmful to the unborn child. He further submitted that the woman suffers hallucinations and has attempted suicide due to her ailments.

The counsel also told the court that there is a risk of infanticide also from post-partum psychosis. And it was because of this reason that her other two children were under her mother-in-law's care.

He further submitted that her doctor would not have given her those heavy depression medicines if she or the doctor knew about the pregnancy.

ASG Bhati appearing for the Centre in her submission said that under the current law, the opinion of the medical board is given primacy and in the petitioner's case the board has denied termination citing the viability of the feotus.

The bench after hearing both sides went through the petitioner's prescription. The CJI then pointed out that all the prescriptions were silent on the nature of the ailment and this casted doubts on the legitimacy of the prescriptions.

It was then that the court decided that a fresh medical opinion was needed.

The court on Thursday gave the petitioner 24 hours to rethink her decision and directed the ASG and the petitioner's counsel to talk to the petitioner and try to make her understand and come back on Friday.

While hearing the petitioner's counsel, the CJI on Thursday stated that undoubtedly, the autonomy of women trumps, but the right of the unborn child should also be balanced out.

"What do you want us to tell the doctors to do? To close the foetal heart? AIIMS wants the court to issue that direction," the CJI asked the petitioner's counsel on Thursday.

The counsel appearing for women replied, "Not at all".

The CJI further asked, "So you want the child to be born alive now? If the child is born alive right now, then the child will be born with physical and mental deformities. If you wait for a few weeks it'll be a normal child in all probability."

"Who is appearing for the unborn child? You're for the mother, Ms Bhati for the government...How do you balance the rights of the unborn child? It's a living viable foetus," the CJI asked. Justice Pardiwala told the petitioner's counsel that it was important to understand the foetus would survive better in the womb.

Earlier on October 9, a special bench of the apex court had granted permission to terminate the pregnancy. Later, ASG Bhati made an oral mention before the CJI against the October 9 order by the special bench allowing the termination. The Centre sought a recall of the order after the doctors opined that there was a viable chance of the foetus being born alive. Taking note of the submission, the CJI on Tuesday asked AIIMS to defer the procedure and directed the Center to file an application for recalling the order.

On Wednesday, the apex court bench headed by Justice Hima Kohli and Justice B.V. Nagarathna delivered a split verdict in this case. The case was referred to the larger bench due to disagreement.

"My judicial conscience does not allow me to let it (termination) continue, whereas my sister judge says it should be. We will refer it to a larger bench," Justice Kohli said while presiding over the hearing on Wednesday.

Justice Nagarathna while emphasising that the petitioner's decision must be respected, she stated in her order, "I respectfully disagree. The mentioning was done without pleadings being filed. The petitioner has stated all throughout that she does not wish to carry out her pregnancy. This is not a question where the viability of the foetus has to be considered, but the interest and wishes of the petitioner who has reiterated her mental condition and ailments. Her decision must be respected."