Foetus Has No Separate Identity From Mother: Justice BV Nagarathna

New Delhi: A 27-year-old married woman's petition to abort her 26-week foetus has become a talking point in the legal circles. While a section of experts argued in favour of medical termination of pregnancy, a few others fought for the rights of the unborn child.

On Wednesday, while Justice B V Nagarathna said the petitioner’s “decision” not to continue with the pregnancy “must be respected”, Justice Hima Kohli had stated “my judicial conscience does not permit” to accept her request because “which court will say stop the heartbeat of a foetus which has a life”.

The Supreme Court had on Thursday told the woman to reconsider her decision stating that even the unborn child had rights.

Given two different opinons from Justice Hima Kohli and Justice BV Nagarathna, the matter was referred to a three-judge bench.

CJI DY Chandrachud, who led the three-judge bench, asked the additional solicitor general Aishwarya Bhati to convince the woman to ensure her baby was born healthy. The bench also clearly stated that it wouldn't ask the doctors to 'stop the foetal heartbeat' saying "We can't kill the child."

While the two bench had initially considered the woman's plea, they recalled the order following an application by the Union of India which cited an AIIMS doctor's email stating that the foetus was healthy.

It was then that Justice Kohli recalled the earlier order stating her 'judicial conscience doesn't permit the petitioner to terminate the pregnancy'. She also expressed her disappointment at the doctor's conduct of sending an email even after being a part of the medical board which was in favour of an abortion.

However, Justice Nagarathna stated that the woman should be allowed to terminate her pregnancy as she is strongly determined to do so. She also stated that the petitioner already had two kids, with the second child being born only a year ago.

What is to be focused upon is, whether, the pregnant lady intends to give birth to a child or not, Justice Nagarathna said

"The pregnant lady is not interested in continuing with the pregnancy. In such a situation whether the child to be born is viable or if the child would be a healthy child are not relevant considerations. What is to be focused upon is, whether, the pregnant lady intends to give birth to a child or not," she observed.