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Justices seek more evidence before deciding fate of 26-week- old unborn baby in India

by | Oct 13, 2023

By Dave Andrusko

As more information pours in, another delay in the case of a 27-year-old Indian woman who wishes to abort her baby who is now entering the third trimester.

On Thursday, the Supreme Court of India asked the mother of two to reconsider her request for abortion. On Friday the   Supreme Court “called for a fresh medical report to indicate the foetal health and medical conditions of a married woman, who stood firm on her plea for immediate termination of her 26-week pregnancy,” according to Utkarsh Anand and Abraham Thomas. “The next hearing of the case will now be on October 16, a week after the Court first permitted the abortion but later put it on hold due to divergence of opinion of a two-judge bench.”

A skeptical three-justice bench, headed by Chief Justice of India Dhananjaya Y Chandrachud, said it could not make a final decision before it received “a fresh medical opinion.” Another look was needed “because the woman’s previous medical reports did not comment on the impact of the drugs that she was taking for her postpartum depression nor were her medical prescriptions impeccable.”


A two judge panel initially approved the abortion. The woman’s lawyer said she suffered from postpartum depression and poor financial conditions. Amit Mishra, her  lawyer, said the woman did not know she was pregnant “due to a disorder called lactational amenorrhea.” He also “pressed for allowing her plea, adding there is a medical opinion to state that the drugs she has been taking could be harmful to the foetus,” which is playing a huge role in this case.

But that approval was before the court learned her doctor objected to the abortion. “Upon receiving the doctor’s report, the court objected and questioned as to why the medical report came after the court order in the case was delivered,” Srishti Ojha and Sanjay Sharma reported.

Justice Kohli said “she was not willing to proceed with the earlier decision and wondered which Court would ask to stop the ‘heartbeat of a foetus that has life.’”

“If this email had arrived earlier, we would not have been rushed into ordering an abortion. After receiving the email, my judicial conscience does not permit me to order the termination of the pregnancy outright,” Justice Kohli said.

Justice Nagarathna disagreed. She said the previous order, delivered on October 9th, was “well considered.”

Which brings us to Friday. The now three justice bench “also comprising justices JB Pardiwala and Manoj Misra, pointed out that her medical prescriptions placed on record were silent on the diagnosis of her medical conditions, the nature of the ailment and the conditions for which the drugs were advised.”

Her attorney fended off the reminder that in India an abortion beyond 24 weeks is not permitted “unless there are serious threats to the life or well-being of a woman or substantial foetal abnormalities.” He told the court the case could not be reduced to “pro-choice vs. pro-Life” because India has a ’pro-choice’ law in the form of the Medical Termination of Pregnancy Act [MTP], which permits all women to abort up to 20 weeks.” Ojha and Sharma wrote

At this, the bench said that the question of whether a foetus can be treated as life outside the womb could be a debatable issue otherwise but that does not need to be argued in view of the scheme of the MTP Act.

“We may not need to make that determination since the legislature has already done that. Legislature says we permit termination for foetal abnormality because once the child is born the parents will be affected too since they have to look after, and that the child will have no quality of life. At the same time, it says there’s no cut-off to save the life of a pregnant woman,” it added.

The justices then went through all her prescriptions and found none of the documents “mentioned how she was diagnosed with postpartum depression or psychosis or the reasons why she was prescribed those drugs.”

“Are such prescriptions to be believed by the Court or have they come up only for these proceedings? Even the handwritten prescription does not mention when she was diagnosed, what the symptoms or the nature of her ailments were. It casts doubt on the genuineness of these prescriptions. Was it all done in September 2023 to bolster the case here? So, let AIIMS find out for how long she has been taking these prescriptions and what’s the status of these drugs on the foetus and on her own health,” said the bench.

That would seem to indicate that the Justices are supremely suspicious. But, alas, according to Anand and Thomas story

As the hearing drew to a close, the bench agreed with Bhati that India has a modern and forward-looking abortion law. “We are far ahead of many other countries. We have a very liberal and forward-looking law,” it commented.

We will continue to follow this case closely.

Categories: Abortion