Court Is Averse To Directing Doctors To Stop Heartbeat Of Fetus: Apex Court While Dismissing Plea For Abortion Of 26-Week Pregnancy

After nearly five days of a split verdict in a plea by a married woman seeking permission to abort a 26-week pregnancy, followed by intense discussions regarding the conflict between women's autonomy and the rights of an unborn child, the Supreme Court today dismissed the woman's plea. The Court allowed the Miscellaneous Application filed by the Union of India seeking to protect the unborn child.

The bench of Chief Justice D.Y. Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra, in its judgment, said: "The length of pregnancy has crossed 24 weeks, it is now approximately 26 weeks and 5 days. A medical termination of the pregnancy cannot be permitted for the following reasons:

A. Having crossed the statutory limit of 24 weeks, the requirements in either Section 3(2)(b) or Section 5 must be met.

B. There are no substantial foetal abnormalities diagnosed by the medical board in this case. This Court called for a second medical report from AIIMS to ensure that the facts of the case were accurately placed before it, and no foetal abnormality was detected.

C. Neither of the two reports submitted by the medical board indicates that the termination is immediately necessary to save the life of the Petitioner in terms of Section 5."

Continuing, the Court further observed, "Under Article 142 of the Constitution, the Court has the power to do complete justice. However, this power may not be attracted in every case. If a medical termination was to be conducted at this stage, the doctors would be faced with a viable foetus. One of the options before this Court is the email from AIIMS as flagged, is for it to direct the doctors to stop the heartbeat. This Court is averse to issuing a direction of this nature for reasons recorded in the preceding paragraph. The Petitioner too did not wish for the Court to issue such a direction; this was communicated by her to the Court during the course of the hearing."

The Court also observed that "In the absence of a direction to stop the heartbeat, the viable fetus will face a significant risk of lifelong physical and mental disabilities. The reports submitted by the medical board speak for themselves. For these reasons, we do not accede to the prayer for medical termination of pregnancy."

The Court accordingly directed that "The delivery will be conducted by the AIIMS at the appropriate time. The Union Government has undertaken to pay all the medical costs for the delivery and those incidental to it. Should the petitioner be inclined to give the child up for adoption, the Union government, through the ASG, has stated that they shall ensure that this process will be done at the earliest and in a smooth fashion. Needless to say, the decision of whether to give the child for adoption is entirely that of the parents."

On October 12, 2023, the CJI had asked the counsels to encourage the petitioner-mother to carry the baby for a few more weeks, at which point the State could assume responsibility for the baby's care. The Court had remarked, "Should We Direct AIIMS To Carry Out An Act Of Foeticide?". Further, on the last date of the hearing, the Court had expressed doubts regarding the medical prescription indicating postpartum psychosis to the Petitioner-mother and instructed AIIMS to conduct an independent evaluation of the woman's condition and the condition of the fetus. The Court adjourned the matter until Monday to await the AIIMS report.

Representing the Union of India, Additional Solicitor General Aishwarya Bhati informed the Court that following an order issued on October 5th, the medical board had denied the request for pregnancy termination, citing justifiable reasons. The current status indicates that the baby has a heartbeat, and, most importantly, it is viable with a reasonable chance of survival. The petitioner had a history of postpartum psychosis after her second delivery in 2022, which further warrants reconsideration of termination. A professor's opinion also supports the notion that the baby is viable.

The Miscellaneous Application was filed by the Union of India intervening to protect an unborn child, and seeking recall of a previous order permitting the termination of a pregnancy that had advanced beyond 24 weeks, urged the petitioner, who is a mother, to reconsider her decision regarding terminating the pregnancy and encouraging her to allow the viable unborn baby an opportunity to survive.

The Miscellaneous Application (MA) was referred to a larger bench. This decision came after the two-judge bench, consisting of Justice Hima Kohli and Justice BV Nagarathna, had a disagreement regarding whether the married woman should be permitted to terminate her 26-week pregnancy.

Cause Title: Poonam Sharma v. Union Of India & Anr. [MA 2157/2023 in W.P.(C) No. 1137/2023]