A bench of Justices Hima Kohli and BV Nagarathna delivered a split verdict in a case concerning the medical termination of pregnancy of a married woman who was in the 26th week of pregnancy.

The matter involved a married couple who had conceived a third time. The pregnancy had crossed the legally permissible limit of 24 weeks for abortions under the Medical Termination of Pregnancy Act, 1971 (MTP Act).

The Bench passed a split verdict, with Justice Kohli not being in favour of termination of the pregnancy. Justice Nagarathna opined that the view of the mother should be respected over claims of the viability of the foetus.

where a 27-year-old pregnant woman has filed a writ petition seeking abortion at 26 weeks of pregnancy due to various reasons. The case has progressed to the Supreme Court, and a Division Bench passed an order (referred to as ‘Order 1’) to constitute a Medical Bench for their opinion.

The Medical Bench, in its opinion, noted that the 26-week-old fetus was viable and had a reasonable chance of survival. However, it also identified potential risks to the petitioner’s mental and physical health, including the risk of post-partum psychosis and complications due to her previous two C-section deliveries.

In light of these findings, the Medical Board recommended that the petitioner allowed to terminate her pregnancy. This recommendation likely takes into account the balance between the viability of the fetus and the potential risks to the mother’s health.

In legal contexts, such cases often involve a careful consideration of the rights and interests of both the pregnant woman and the unborn child. The decision to allow or deny an abortion might be influenced by factors such as the health of the mother, the viability of the fetus, and any applicable laws or regulations in the jurisdiction.

In their Order dated October 9 October (‘Order 2’), the Bench took cognizance of several factors that favoured permitting abortion of the foetus:

Firstly, the petitioner expressed reluctance to continue the pregnancy due to some worries about the petitioner’s mental, physical and psychological health. The petitioner had categorically expressed her unwillingness to continue with the pregnancy, contrary to the claims of her counsel and the Additional Solicitor General, who claimed to have persuaded her to continue with the pregnancy.

Secondly, the petitioner suffered from post-partum depression, and had been undergoing treatment for it for over a year. There was an anxiety that the strong medicines prescribed to her would have an adverse impact on the foetus’ health.

Thirdly, the petitioner had conceived despite adopting the Lactational amenorrhea contraceptive method, which provides its users over 95% protection from pregnancy. In other words, there was a contraceptive failure, which is recognised as a ground for abortion by Explanation 1 of S. 3(2), MTPA.

Based on these factors, the Court allowed for the termination of pregnancy. The Court also acknowledged the importance of reproductive autonomy and cited X v Delhi, holding that the MTPA was to be interpreted in an “overarching and all-encompassing sense”.

The next day, UOI filed for a recall application, based on an e-mail sent by one of the members of the Medical Board, which requested a directive from the Supreme Court on whether the viable foetus’ heart was to be stopped before conducting the termination. As per the e-mail, not doing so would result in a preterm delivery, as opposed to a termination, and the preterm baby would be subject to a long stay in the intensive care unit and a high possibility of immediate and long-term disabilities.

Therefore, the question before the court was whether the fetus could be separated. Accordingly, the same court renders another judgment in its order dated October11, 2023 (“Order3”). In light of this email, Kohli J refused to authorize the abortion on the grounds that judicial conscience would not permit it, but provided no further explanation as to why the abortion was not authorized. Nagarathna, J., noted a new affidavit by the plaintiff, in which she acknowledged the factors mentioned in the email and stated that, of her own free will and without any outside pressure, she intentionally took a conscious decision. Ms. Nagaratna J. opined and found that, keeping in mind her delicate mental and socio-economic situation, the Supreme Court must respect the plaintiff’s decision. order 2

A three-judge bench was asked to consider the case after the split verdict, and in their final ruling on October 16, 2023 (the “Final Judgement”), they rejected allowing the termination. Given that the upper gestational statutory limit of 24 weeks had been reached, Chandrachud, CJ, held in final judgment that an abortion could not be performed. S. 5 could not be used because there was no urgent need to end the petitioner’s life, according to the Medical Board’s reports. Moreover, the Court expressed reluctance to order the cessation of the foetus’ heartbeat, citing its authority to administer “complete justice.” It was noted that the Petitioner shared this opposition.