On Thursday, 12th October, a Supreme Court bench headed by Chief Justice of India DY Chandrachud told a 27-year-old married woman who filed a petition to abort her 26-week fetus, that she should reconsider her decision saying that “even an unborn child had rights.”
CJI DY Chandrachud, who presided over the three-judge bench, directed ASG Aishwarya Bhati to persuade the woman to ensure her baby was born healthy. The bench also stated unequivocally that it would not request that doctors stop the foetal heartbeat,’ stressing that “we cannot kill the child.”
This comes after a split order was passed by a Supreme Court bench comprising Justices Hima Kohli and BV Nagarathna on Wednesday. The woman’s appeal was initially accepted by the two-judge bench. The next day, however, the Union of India filed an application to recall the ruling, citing an email from an All India Institute of Medical Sciences doctor claiming that the foetus was healthy and had a good chance of survival.
Taking the email into consideration, Justice Kohli recalled the earlier ruling, stating that her “judicial conscience does not permit the petitioner to terminate the pregnancy.” However, Justice Kolhi did not approve of the conduct of the doctor who sent the email, who is a member of the medical board that initially backed medical abortion.
The Supreme Court judge stated that because the petitioner is unwilling to continue the pregnancy, whether the foetus is viable or not is “irrelevant”.
“The pregnant lady is not interested in continuing with the pregnancy. In such a case, whether the child to be born is viable or if the infant will be healthy is irrelevant. What is to be focused upon is, whether or not the pregnant lady intends to give birth to a child,” Justice Nagarathna said.
A fetus has no separate identity from the mother
Justice Nagarathna went on to assert that a “fetus has no individual personality from the mother” since it is dependent on the mother for “its very existence.”
“It would be incongruous to conclude that the foetus has a separate identity from the mother and in spite of the physical or mental health of a mother being under threat, she will have to continue her pregnancy until the foetus is born which would endanger her delicate health. Such a position is contrary to Article 21 and 15(3) of the Constitution of India which recognize the right to life and liberty and particularly those of a woman,” Justice Nagarathna said.
The three-judge bench, led by the CJI, expressed reluctance to allow the petitioner to end the pregnancy due to the viability of the foetus. During the hearing, CJI Chandrachud stated that the rights of the unborn child are just as essential as the decisional autonomy of the woman. The hearing was adjourned until today to provide the petitioner time to consider.
