Right to reproductive health being a woman’s human right
In the matter of Union of India
Miscellaneous Application No. 2157/2023
In re
WP 1137/2023
Dissenting orders were passed by the Bench of Hon’ble Madam Justice Hima Kohli J & Hon’ble Madam Justice B V Nagarathna J on 11.10.2023 & matter was referred to the Hon’ble Chief Justice of India for constituting another Bench to consider the matter of termination of 26 week’s pregnancy.
Background
1. A Writ Petition was filed before Hon’ble Supreme Court of India by the Petitioner for termination of her ongoing 26-week pregnancy, in a government hospital.
2. Hon’ble Court comprising Hon’ble Madam Justice Hima Kohli J & Hon’ble Madam Justice B V Nagarathna J allowed the termination of her pregnancy after considering the Report dt. 06.10.23 of the Medical Board of AIIMS, vide their order dt.09.10.2023.
3. But on 10.10.2023 one of the members of the medical board Dr. Aparna Sharma, a Professor in the Department of Obstetrics and Gynecology, at AIIMS sent an e mail to the Additional Solicitor General of India Ms Aishwarya Bhati seeking clear direction from the SC as to whether a feticide can be done before termination which is normally done in case of abnormal foetus.
4. Further if feticide is not done than it would be preterm delivery and not termination and, in that case, there is high possibility possibility of immediate and long term physical and mental disability which will seriously jeopardize the quality of life of the child for which direction was sought what is to be done with the baby.
5. If the baby is delivered after 8 weeks the baby will have a better chance of life.
6. Union of India on receiving the mail sought for reconsidering the order dt. 09.10.2023 which has triggered the mentioning of the matter before the Hon’ble Chief Justice of India and reconstitution of this Bench to reconsider the order dated 09th October, 2023.
Observation of Hon’ble Madam Justice Hima Kohli J on the E mail
1. The fact which is not brought forth before the Court ought to have been made a part of the report dt. 06.10.2023 when the author of the mail happened to be the member of the medical board. Had the fact been stated earlier the order passed would certainly have different connotation. The mail is made immediately a day after the order passed by this court.
2. It seems the opinion of Dr. Sharma did not found concurrence with the other four members of the Medical Board. Even if that was so, nothing prevented Professor Sharma from submitting her independent opinion with the report to this Court, which was not done in the instant case and to that, we take an exception.
3. The petitioner was asked by the court to submit an affidavit with regard to termination of her pregnancy and she submitted that she wants to terminate her pregnancy and she has willfully had taken the decision. Even if the baby survives, she didn’t want to keep the baby.
4. The government can take care of the baby in case it survives & even can give it in adoption or whatever deems suitable to them. I will never raise any objection or made any claim over the baby in the future.
5. It was also submitted that the decision to terminate my pregnancy was taken out of her free will, choice and without pressure from anyone, after having understood all facts and surrounding circumstances about her case.
This matter had a split opinion amongst the bench comprising Hon’ble Madam Justice Hima Kohli J & Hon’ble Madam Justice B V Nagarathna J
Order passed by Hon’ble Madam Justice Hima Kohli J
1. Hon’ble Madam Justice Hima Kohli observed that judicial conscience does not permit her to allow termination of her pregnancy having regard to the content of the e-mail dt. 10.10.2023 of Professor Sharma, Department of Obstetrics and Gynecology, AIIMS.
Observation of Hon’ble Madam Justice B V Nagarathna J
1. Having regard to the concrete determination made by the petitioner, I find that her decision must be respected.
2. The socioeconomic condition in which the petitioner is placed and the fact that she has already two children, the second child being only one year of age and the fact that she has reiterated that her delicate mental condition and health and the medicines that she has been taking for the same, do not support her to continue with her pregnancy must be considered by the Court.
3. What is to be focused upon is, whether, the pregnant lady intends to give birth to a child or not.
4. It may not be out of place to note that a foetus is dependent on the mother and cannot be recognized as an individual personality from that of the mother as its very existence is owed to the mother.
5. 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.
6. 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.
7. Right to reproductive health being a woman’s human right would also include the right to an abortion.
8. Otherwise, a woman who is forced into an unwanted pregnancy would experience physical and mental trauma and to endure the pregnancy which may continue in the post-natal period owing to which she would have the burden of bringing up an additional child and consequently, may lose out on other opportunities in life including right to employment and contribution to the income of the family.
9. She has thought of not only her health condition but also the socioeconomic condition in which she and her family are placed and has realized that an addition to the family would be a burden to the family.
10. When the petitioner has determined to terminate her pregnancy and has completely detached herself from the fact that she would be giving birth to her child shortly, she cannot be made worse off by this Court by declining to grant her the relief she has sought and thereby forcing her to continue with an unwanted pregnancy.
11. In pregnancies over 24 weeks procedure of termination and the consequences must be clearly explained to the pregnant woman, to the court as well and even after such explanation woman is determined to terminate than primacy may be given to her decision.
Order passed by Hon’ble Madam Justice B V Nagarathna J
1. The order passed on 09.10.2023 is well considered order authored by Hon’ble Madam Justice Hima Kohli J allowing termination of pregnancy & it need not to be recalled.
2. In view of the peculiar position the petitioner is placed the registry was directed to place the matter before Hon’ble Chief Justice of India for referring the same to another Bench otherwise it would be detrimental to the health of the petitioner.
Seema Bhatnagar
