The Supreme Court has dismissed a woman’s plea to terminate her 26-week pregnancy under the Medical Termination of Pregnancy Act, 1971 (MTP Act), observing that there was neither any danger to her life nor any fetal abnormality. Under the law, pregnancy can be terminated up to 24 weeks for married women and for special categories such as rape survivors, minors and the disabled.
The Supreme Court had sought a fresh medical report from AIIMS Hospital in Delhi to understand the health of the fetus and the medical condition of the 27-year-old married woman, mother of two, who remained steadfast with her plea for immediate termination of her pregnancy. On October 11, a division bench delivered a bifurcated judgment. The AIIMS medical board confirmed that the petitioner was suffering from postpartum psychosis.
The Supreme Court was faced with the dilemma of whether the woman could cut off the fetus and considered the woman’s right to life, which concerns her body on the one hand and the rights of an unborn child on the other. The judges said they could not infringe on the rights of the baby (fetus) to protect the rights of the pregnant woman – and cited the need to find a ‘balance’ between the two.
“It is a woman’s body and she should be in control of making decisions for it. If she became pregnant voluntarily or accidentally, her consent to give birth is absolutely necessary. What’s the point of having a child if the biological mother can’t give it? affection and raising the child properly? It will defeat the purpose of forcing a woman to continue her pregnancy if it can be medically terminated without endangering her life. There are unspoken mental consequences on the life of the mother and child that should not be avoided. lost sight of,” said Rohini Wagh, a lawyer at the Supreme Court.
The Supreme Court considered all aspects of the case but appears to have given importance to the viability of the fetus over the mental health issues the woman might face after the birth of the baby. In fact, the mother’s mental well-being will directly affect the child’s psychological well-being throughout life, and this is a point that should be seriously considered.
“If a doctor had confirmed that there could be consequences, we had to assess the woman’s mental health, otherwise there is no point in having a mental health law. If there is an absolute urgency to carry out this kind of termination, the woman alone should be the focus and whatever option – conducive, likely, feasible and not so risky – should be given to her. Society, the judiciary, the police and the family must simply stand behind her in solidarity and support her. It should not be a choice just for the sake of choice,” said Nikhil Datar, a Mumbai-based gynecologist who has been at the forefront of the campaign and has been involved in 324 cases on the issue.
According to the Supreme Court, parents can decide whether to give the child up for adoption or raise it. On closer inspection, we might believe that this Catch-22 choice is tough on parents. Carrying the baby for a long period of time, having it, and then giving it up for adoption is not a choice parents would want to make; both scenarios can mentally scar them for life.
“Each case must be judged on its own facts and even trained judicial minds can come to diametrically opposed views, as the present case has shown. At the heart of the debate is a woman’s autonomy over her own body and the rights of the unborn child,” said Aparajita Singh, senior advocate at the Supreme Court.
“However, one wonders what meaning the right of the unborn child has if the mother only delivers it only to then give it up for adoption in a country where the adoption process takes years, as recently pointed out by the chief justice. the petitioner has contended that as per the report of the Parliamentary Standing Committee in Rajya Sabha, 3.1 crore children are waiting to be adopted,” Ms Singh said.
The judiciary has considered the legal question in this case. Now it is up to the legislature to consider amending the law so that the 24-week limit is expanded to take other sensitivities into account. Many factors were not taken into account when the courts decided the case on the merits. It may take years for the paradigm to change in these matters; until then, progressive legal interpretations will govern every case, perhaps differently.
“A married woman who requests termination of pregnancy is in distress. The circumstances – mental, physical, social – surrounding her are such that she needs this specific procedure, otherwise no woman would want to undergo a medical procedure unnecessarily. Just because someone’s application for termination is postponed, it should not be rejected,” says Dr Datar.
“If it is feasible within 24 weeks, it can also be done afterwards. The court must decide in advance on the conditions for terminating the pregnancy. If the woman in need meets those conditions, she must be able to terminate the pregnancy and nothing else is allowed come.” in her way. If the rights of an unborn fetus must be taken into account, then even a seven-week fetus has that right. Why wait 24 weeks?” he says.
The court’s ruling allowing the fetus to complete its full natural pregnancy cycle, categorically denying a woman’s right to decide over her body, has set another legal precedent. But you cannot miss the unanswered questions, especially those related to the mental well-being of the expectant mother, as validated by the psychiatrist of AIIMS.
Most stakeholders in this saga won’t be following developments outside the court, but it may not be an easy ride for a baby whose mother fought to keep him from being born.
(Bharti Mishra Nath is a senior journalist)
Disclaimer: These are the personal opinions of the author.
