Supreme Court Abortion Case: Rights of a woman and her choice Vs Rights of an unborn child

Supreme Court Abortion Case: Rights of a woman and her choice Vs Rights of an unborn child

KAKALI DAS

A case that has recently appeared before the Supreme Court of India – a case that deals with the rights that woman has over her body, and the rights of an unborn child. So, yes, it is a case about abortion – about a 27-year-old woman, a resident of Delhi, who wanted permission for an abortion at 24 weeks.

To the unversed, let’s learn what the abortion laws are like in India!

According to the Medical Termination of Pregnancy Act 2021, the women has the right to decide whether or not she wants a safe medical abortion up to 20 weeks of her pregnancy; she decides what happens to her body and she doesn’t need anybody’s permission for that.

After the 20 weeks have been crossed, i.e., from 20 to 24 weeks, the abortion is allowed only in special cases, like if it’s a minor or someone who is under 18 or if it’s a survivor of rape, incest. And there is a list of certain exceptions.

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But in this case,the signature of two doctors is necessary to be able to have the abortion done. And any termination after 24 weeks is looked after by the state level medical board, where the medical board has to certify whether or not there are substantial foetal abnormalities, or there’s a threat to the life of the mother, prior to the final decision So, after 20 weeks, as per the norm, it’s not the woman’s decision anymore – she requires the sign off of doctors.

The case we’re here discussing about is of a 27-year-old married woman, who already has two children and has approached the court with her third pregnancy. What she said to the court is that she would want to terminate the pregnancy, which is now at week 26. She had approached at week 24.

The woman said that she is suffering from postpartum depression, that she’s been receiving medical treatment for the last one year, and that she doesn’t consider herself emotionally, financially and mentally stable to be able to raise a third child. She has also informed the court that she was using breastfeeding as a form of contraception in order to prevent herself from getting pregnant again.

But breastfeeding is not a 100% safe or approved way to use as contraception, and this is also the reason why she discovered her pregnancy quiet late.

The case was first appeared before the Supreme Court in a two judge bench – two women judges – who heard the case on Monday, 9 October, and they decided in favour of the abortion. They effectively said that they ruled in the favour of decisional autonomy – which means a woman has the right to decide what happens to her body.

And they also noted that since most of the responsibility of that baby will fall on the shoulders of the mother, she has to decide whether or not she will be able to handle it. And the woman is herself deeming herself unfit to parent. So the court has to listen to her.

Now, if we take it one step further after that judgement – the central government has appealed to the Supreme Court to reconsider because the matter went before the medical board at AIIMS, and the doctors at AIIMS in Delhi found that the foetus is at a viable point where if it’s delivered, it can survive on its own, although with severe abnormalities. So now the case is back to the court.

And, as this is no longer an abortion, this will actually be doctors having to stop the foetal heartbeat and commit foeticide, effectively killing that baby in order to carry out this court’s judgement. So, the question before the court –Should the court rule in favour of foeticide? Thus, this matter has been reappeared before the court on Tuesday.

On Tuesday, the two same woman judges of the court decided differently this time – they each had a different decision. The first judge, Justice Hima Kohli, has said, “Which court will, pray, say stop a heartbeat of a foetus which has a life? We are wondering! Which court would do that? Speaking for myself, I wouldn’t.” And the judge was making oral observations when the central government was arguing.

While the other judge, Justice B. V. Nagarathna, who was the other judge on this case, she ordered, “This is not a case where the question of viable baby being born or unborn is to be really considered when the interest of the petitioner has to be given more balanced width and reference the socio-economic situation in which the petitioner is placed… the fact that she has reiterated that her mental condition do not permit her to continue with her pregnancy.”

The matter than was referred to a larger bench headed by the Chief Justice of India. It appeared before the chief justice of India on Wednesday. And when the CJI was hearing the case, there are three options placed before the court.

Firstly, if the court orders the carrying forward of the termination, it would effectively be ordering the killing of this baby because it is now viable outside of the mother – it can survive on its own. So, what are its rights if it can survive on its own?

The second option is to deliver the child at this point, which at such an early stage would result in severe abnormalities in the baby.

The third option is to ask the mother to carry the baby full term.

Now, the government argued that the team at AIIMS has offered to look after the woman, her mental health and the baby can be put up for adoption later. But the woman has still appeared before the court arguing that she should have a right effectively to decide how much of this she wants to put herself through. And she doesn’t want to wait until the end of the term.

Now, while listening to the case, the chief justice of India, D.Y. Chandrachud, asked this question, “Who is appearing for the unborn child? You’re the mother, Ms Bhati for government… How do you balance the rights of the unborn child? It’s a living viable foetus. Today its chances of survival are there but very likely that child would be born with deformities.”

The CJI further said that, as consistent as we are about the need for autonomy, we cannot be oblivious to the rights of an unborn child. This case was adjourned today, and it will be heard again tomorrow.

But, significantly, this case brings forth the question of the rights of the baby and the rights of the mother, and the kind of quality of life this baby will have in the future. It is questions like these, when it comes up before the Supreme Court, it sets a precedent as to once the court makes its decision, that decision will be looked at by the government, by smaller courts, and it sets the example as to how these cases ought to be dealt with.

Also, with every day that passes, the baby becomes more and more viable, and closer and closer to 30 weeks when it is a fully viable foetus. So, it will be very interesting to witness how this plays out next.

Images from different sources

KAKALI DAS is the Editor of Fortnightly English Magazine MAHABAHU & Assistant Editor of MAHABAHU

Mahabahu.com is an Online Magazine with collection of premium Assamese and English articles and posts with cultural base and modern thinking.  You can send your articles to editor@mahabahu.com / editor@mahabahoo.com (For Assamese article, Unicode font is necessary)