Supreme Court all-woman bench gives split verdict in medical termination of pregnancy case

The Supreme Court on Wednesday delivered a split verdict in a case concerning the medical termination of pregnancy of a married woman who was at 26th week of pregnancy..The Bench hearing the case - that of Justices Hima Kohli and BV Nagarathna - was the apex court's fourth-ever all-woman bench..The matter involved a married couple who had conceived a third time. The pregnancy had crossed the legally permissible limit of 24 weeks for abortions under the Medical Termination of Pregnancy Act, 1971 (MTP Act). The petitioner's counsel had informed the Court that due to a condition called lactational amenorrhea (also known as post-partum infertility, during which time there may be an absence of menstruation for lactating mothers) and post-partum depression, she did not realise that she had missed her periods for five months. When the matter was first taken up last week, the Bench directed an All India Institute of Medical Science (AIIMS), Delhi medical board to examine the woman (petitioner), before considering the case further.Additional Solicitor General (ASG) Aishwarya Bhati, appearing for the Union government, had recommended the immediate constitution of a medical board. .Then followed the interesting sequence of events.On Monday this week, the bench of Justices Kohli and Nagarathna allowed the termination of pregnancy and directed AIIMS to conduct the same.On Tuesday, ASG Bhati mentioned the matter before Chief Justice of India (CJI) DY Chandrachud sought urgent listing of a then unfiled recall application on behalf of the Central government. The CJI said he would constitute a bench to hear the application the next day..During today's hearing, the bench of Justices Kohli and Nagarathna took strong exception to the Union government's tactic.ASG Bhati said that the government was ready to take care of the baby (and possibly later put it up for adoption through the necessary rules), but wanted the lady to go through with the pregnancy."The State and this Court has interest in the child my lords. Her rights to autonomy cannot be beyond the MTP Act. But in the absence of a challenge to show it to be lightly interpreted is giving absolutely primacy to her reproductive rights, it will take away right of the unborn child to live a viable life.".The Bench eventually passed a split verdict, with Justice Kohli not being in favour of termination of the pregnancy, while Justice Nagarathna opined that the view of the petitioner should be respected over claims of viability of the foetus.Justice Kohli objected to the new doctor's report relied on by the Union government, after noting the doctor who filed it was part of the AIIMS medical board that had approved the termination of the pregnancy.The doctor's report, part of an email sent yesterday, argued that the woman should continue with the pregnancy."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.The Court ordered accordingly, with Justice Nagarathna stating in the operative part of 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. The 9th October [Monday] order does require recall.".[Read Order]