New Delhi: We can't kill child, says Supreme Court

New Delhi : "We cannot kill the child," the Supreme Court observed on Thursday while stressing on the need to balance the rights of an unborn child with the right to autonomy of the mother who has sought to abort the healthy foetus on account of her own ill health. Faced with a conundrum over whether to allow a married woman, a mother of two, to terminate her 26-week pregnancy, a bench headed by Chief Justice D Y Chandrachud asked her counsel whether she wanted the apex court to tell the doctors at AIIMS to stop the "fetal heart" of a "living, viable foetus" under a judicial order.

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. The bench, also comprising Justices J B Pardiwala and Manoj Misra, was hearing the Centre's application seeking recall of the top court's October 9 order permitting the woman to undergo termination of pregnancy at All India Institute of Medical Sciences (AIIMS). The issue arose after one of the doctors of the AIIMS medical board, which examined the woman and filed a report to the apex court on October 6, sent an e-mail on October 10 saying the foetus had a strong possibility of survival if the pregnancy was terminated at this stage.

"We cannot kill the child," the CJI observed, as the court grappled with the moral dilemma over whether to order the child's birth or respect the mother's choice. Referring to the doctors' opinion which said there was a strong possibility of the child being born with serious physical or mental deformity if premature delivery was allowed now, the bench said, "Today, if the child is delivered with deformity, nobody will adopt the child." Terming it a "hard fact", the bench said in India, people don't like to adopt children with deformities, and though there are exceptions, people don't generally do this.

It said the task of judges is all about balancing rights and duties, and what is social good. "Tell us one thing, what about a mother who knows that if I deliver today and don't keep the baby for another two weeks time, I am going to deliver a child who is destined to be abnormal, physically and mentally. It is a Hobson's choice," the CJI said. As the petitioner's counsel vehemently argued in favour of ending the pregnancy and asked whether the court would have taken the same stand if an unmarried pregnant woman had approached it, the bench said, "We are the Supreme Court".