The Supreme Court has rejected a woman's request to terminate her 26-week pregnancy under the Medical Termination of Pregnancy Act,1971 (MTP Act), noting that there was neither any danger to her life nor any foetal abnormality. Under the law, a pregnancy can be ended up to 24 weeks for married women and special categories like rape survivors, minors and the differently-abled.
The Supreme Court had sought a fresh medical report from Delhi's AIIMS hospital to understand the foetal health and medical conditions of the 27-year-old married woman, a mother of two, who stood firm on her plea for immediate termination of her pregnancy. On October 11, a division bench delivered a split verdict. The AIIMS medical board confirmed that the petitioner was suffering from post-partum psychosis.
The Supreme Court faced the dilemma of whether to allow the woman to terminate the foetus and in the process, pondered over the woman's right to life, which involves her body on one hand and the rights of an unborn child on the other. The judges said that they couldn't infringe on the rights of the baby (foetus) to protect the rights of the pregnant woman - mentioning the need to find a 'balance' between the two.
"It is the woman's body and she should have the control of making decisions for it. If she has willingly or accidentally conceived, her consent to give birth is imperative. What is the point of having a child if the biological mother can't give affection and properly bring up the kid? 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 unsaid mental consequences on the lives of the mother and the child which should not be lost sight of," says Rohini Wagh, Supreme Court lawyer.
The Supreme Court considered all aspects of the case but seems to have given importance to the viability of the foetus over the mental health issues that the woman might face after the baby's birth. In fact, the mental well-being of the mother will directly impact the psychological well-being of the child through life and it is a point that needs serious consideration.
"If a doctor had confirmed that there could be consequences, we needed to introspect on the woman's mental health, otherwise there's no point having a Mental Health Act. When there is an absolute urgency to do this kind of termination, the woman alone should be at the centre and whatever option - conducive, probable, feasible and not-so-risky - should be given to her. Society, judiciary, police, and family should just stand in solidarity behind her and support her. It should not be a choice just for the sake of choice," says Nikhil Datar, a Mumbai-based gynaecologist who has been at the forefront of the campaign and involved in 324 court cases in this issue.
The Supreme Court said parents can make the decision of whether to give the child up for adoption or raise it. A closer look would lead us to believe that this Catch-22 choice is tough on parents. Carrying the baby full-term, having it and then giving it up for adoption is not a choice any parent would want to make - both scenarios could mentally scar them for life.
"Each case has to be judged on its own facts and even trained judicial minds can arrive at diametrically opposite views, as the present case has shown. At the core of the debate is the autonomy of the woman over her own body and the rights of the unborn child," says Aparajita Singh, Senior Advocate, Supreme Court.
"However, one wonders what meaning the right of the unborn child has when the mother delivers it only to give it up for adoption in a country where the process of adoption takes years to complete, as observed recently by the Chief Justice. In the case, the petitioner argued that according to the report of the Parliamentary Standing Committee in Rajya Sabha, 3.1 crore children are waiting to be adopted," said Ms Singh.
The judiciary has addressed the question of law in this case. Now it is up to the legislature to consider amending the law so that the 24-week limit is widened to factor in other sensitivities. Many factors were not considered when the courts decided the merits of the cases. It might take years before the paradigm shifts in these matters - till then, progressive judicial interpretations will govern each case, maybe differently.
"A married woman asking for termination of pregnancy is in need. The circumstances - mental, physical, social - around her are such that she is in need of this particular procedure otherwise no woman would like to undergo a medical procedure unnecessarily. Only because someone's application to terminate is delayed, it should not be declined," says Dr Datar.
"If it is viable in 24 weeks, it can also be done after that. The court should decide the conditions for terminating the pregnancy beforehand. If the woman in need fits those conditions she should be allowed to terminate the pregnancy and nothing else should come in her way. If the rights of an unborn foetus have to be considered, then even a seven-week-old foetus has that right. Why wait 24 weeks?" he says.
The court ruling allowing the foetus to complete its full natural gestation cycle, categorically denying the right of the woman to decide on her body, has firmly established another legal precedent. But one cannot miss the unanswered questions, especially those that involve the mental well-being of the would-be mother, as validated by the psychiatrist at AIIMS.
Most of the stakeholders in this saga won't track the developments beyond the court, but it may not be an easy ride for a baby whose mother has fought to prevent it from coming into this world.
(Bharti Mishra Nath is a senior journalist)
Disclaimer: These are the personal opinions of the author.