The Supreme Court has delivered a split verdict on a government plea to recall permission to a woman to terminate a 26-week pregnancy. Justice Hima Kohli and Justice BV Nagarathna, who on Monday allowed the termination request, today differed in light of a report by the All India Institute of Medical Sciences, which said the foetus is "viable", i.e., it has a strong possibility of survival.
Justice Kohli said she is now disinclined to permit the woman to terminate her pregnancy. Justice Nagarathna dismissed the government's plea, saying the bench's previous order was well-reasoned.
The matter has now been referred to Chief Justice DY Chandrachud to be assigned to a larger bench.
On Monday, the woman told this bench that she suffers from health issues, including postnatal depression, and is unable to raise a third child. The court accepted her abortion request.
On Tuesday the government filed the AIIMS report and asked the court to recall its order.
Court Irritated By AIIMS Report
The timing of the report had irked the two-member bench.
READ | Chief Justice Concerned As Supreme Court Allows Aborting 26-Week Pregnancy
"Why only after our order? Why were they not candid earlier? Which court wants to stop a foetus with a heartbeat? Certainly not us, for heaven's sake," an anguished Justice Hima Kohli demanded.
"There is a way to overturn a court order (but) not like this. Why after order was passed? It is not like we did not hear you," Justice Kohli and Justice BV Nagarathna said, "She is under more stress now..."
The court also criticised the government for failing to mention this point in Monday's hearing.
"When one bench of this court decides a matter... without any pleading how can you move an intra-court appeal before a three judge bench...," Justice Nagarathna said.
"If the Union of India starts doing this, tomorrow a private party will also do this... every bench is the Supreme Court. We are one court.... Speaking for myself, I would not appreciate this..." she added.
"Must Be No Misunderstanding"
Justice Kohli and Justice Nagarathna then said they needed to hear from the woman - who had not been informed of the new report - and fixed a hearing for 2 PM.
"We don't want any scope of misunderstanding. We are talking of precious life here. We would not want to take any risk," the bench said, as it also directed her to file an affidavit outlining what she would like to do in light of the new report from AIIMS. The court also interacted with the father.
Can Baby Be Put Up For Adoption?
The court also asked the woman if she would be willing to foster the unborn child till the government could arrange for its adoption. The woman expressed her agreement to do so, to which Ms Bhati said, "We are ready to take care (of the mother and child). We will give medicines, etc."
The father also agreed but the court emphasised it needed to hear from the woman.
What Did The AIIMS Report Say?
The report, from Delhi's All India Institute of Medical Sciences, asked the court if a foeticide - the procedure to stop the foetal heart - could be performed before the termination of the pregnancy.
Essentially, the government has cited the AIIMS report to suggest that since the foetus has, so far, had a normal and healthy progression, aborting it now would not technically be a "termination"
It would, instead, be a preterm delivery and amount to the "murder" of the foetus.
READ | Centre's New Rules For Abortion Till 24 Weeks Of Pregnancy
Under the Medical Termination of Pregnancy (MTP) Act, the upper limit for termination of pregnancies is 24 weeks for married and vulnerable women, such as rape survivors, differently-abled and minors.
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