NEW DELHI: The Supreme Court on Wednesday delivered a 'split verdict' over a decision to terminate the 26-week pregnancy of a married woman, a mother of two kids, and the Centre's plea to recall the abortion of the "unborn."
Following the difference of opinion, Justices Hima Kohli and B.V. Nagarathna referred the case further to Chief Justice DY Chandrachud to constitute a three-judge bench.
Dealing with the case of the 27-year-old woman, mother of two children (both sons, aged four years and one year) who is "neither physically, mentally, psychologically or financially prepared to continue" with the unwanted pregnancy, Justice B V Nagarathna said the court should respect the woman's choice as she has remained determined about it.
Under the Medical Termination of Pregnancy (MTP) Act, the upper limit for the termination of pregnancy is 24 weeks for married women, special categories including survivors of rape, and other vulnerable women such as the differently-abled and minors.
Differing with Nagarathna, Justice Hima Kohli wondered which court will say “stop the fetal heartbeat," adding, "Speaking for myself, I would not."
Earlier on Monday, the top court had permitted the woman who has entered the third trimester to undergo the procedure of termination of her pregnancy at the All India Institute of Medical Sciences (AIIMS).
The bench also took exception to an October 10 e-mail addressed by one of the members of the medical board about the strong possibility of survival of the foetus.
"If the doctor could be so candid in two days short of the earlier report, why was not the (earlier) report more elaborate and more candid?” the bench asked, adding, “Why were they being ambiguous in the earlier report?”.
Justice Nagarathna, while "respectfully disagreeing" with the other judge, referred to the socio-economic condition of the petitioner, the fact that she already has two children and has reiterated that her mental condition and medicines which she is taking do not permit her to continue with the pregnancy, “I find that her decision must be respected by the court”.
During the hearing, Additional Solicitor General Aishwarya Bhati, appearing for the Centre, referred to the medical opinion which has now come on the matter.
“Once there is a viable baby on the other side, my respectful submission would be that your lordships may not give absolute primacy to her choice and her autonomy of exercising her reproductive rights,” she said.