A case concerning the right of an unborn child vis-à-vis that of a pregnant woman’s autonomy in seeking to abort a healthy foetus on account of her own ill health on Thursday prompted Chief Justice of India (CJI) D Y Chandrachud to term it a Hobson’s choice.

“We cannot kill the child,” the Supreme Court Bench observed and asked the counsel representing the 26-week pregnant mother whether she wanted the court to tell the doctors at the All India Institute of Medical Sciences (AIIMS) to stop the “foetal heart” of a “living, viable foetus”.

“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 Hobson’s choice,” the CJI said.

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 a recall of the top court’s order issued on Monday that permitted the woman concerned to terminate pregnancy at AIIMS.

When the petitioner’s counsel asked whether the court would have taken the same stand if an unmarried pregnant woman had approached it, the Bench said, “This is not a case either of a minor victim who has contracted pregnancy nor is it a case of a person who is a victim of sexual violence or abuse. She (petitioner) is a married woman. She has two children. Surely, the elementary question which we wanted to ask you is what was she doing for 26 weeks? She had two earlier pregnancies. She knows the consequences of pregnancy.”

One of the doctors of the AIIMS medical board, which examined the woman and filed a report to the top court on October 6, had sent an email on October 10 saying the foetus had a strong possibility of survival at this stage of pregnancy.

After taking into account the doctors’ opinion that 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.”

It is a “hard fact”, the Bench said and added that in India people generally do not adopt children with deformities, although there are exceptions.

“What do you want us to tell the doctors to do? You want us to tell the doctors to ensure that the foetal heart stops functioning? AIIMS wants that direction from the Supreme Court,” the CJI told the petitioner’s counsel.

When the petitioner’s counsel responded with a “no”, the Bench asked when the woman has waited for over 24 weeks, can’t she retain the foetus for a few more weeks to consider the possibility of a healthy child being born.

The CJI said doctors are now saying they can medically terminate the pregnancy by stopping the foetal heart if the court allows. “That is why AIIMS has a serious ethical dilemma,” he said.

The Bench said that asking AIIMS to stop the foetal heart will be like directing the doctors to carry out an “act of foeticide”.

The petitioner’s counsel said the woman doesn’t want to continue her pregnancy due to problems including her mental condition. The counsel said she is unable to take care of herself due to the pregnancy and had even contemplated suicide.

“We also need to balance out the rights of the unborn child. Undoubtedly, the autonomy of the woman must come. She has a right under Article 21, she has a right under various provisions of the Constitution… But equally, you have to be conscious of the fact that whatever you are doing is going to affect the rights of an unborn child,” the Bench said.

The Bench said nobody was compelling the woman to keep the child and even the state has not asked the mother to do so.

“But having waited for 26 weeks, and in plain English, to put the child to death, is the only other option. All that she has to do is to wait for another two weeks,” it said.

The apex court observed that the doctors have said foetal growth in the mother’s womb makes all the difference. It advised the counsel to persuade the woman to not end her pregnancy.

The Bench also asked Additional Solicitor General Aishwarya Bhati, who was appearing for the Centre, and the petitioner’s lawyer to talk to the woman about the possibility of retaining the pregnancy for a few weeks more and posted the matter for hearing on Friday.