The Supreme Court on Thursday asked the 26-weeks old pregnant woman to take a call on the termination of her pregnancy, while flagging the right of the unborn child and stating that it will not shy away from taking a call itself.

Chief Justice D Y Chandrachud, heading a bench also comprising Justice J B Pardiwala and Justice Manoj Sinha, also pointed to the rights of unborn child.

The woman’s autonomy is important but one must be conscious of the fact that whatever is done will affect the right of the unborn child, Chief Justice Chandrachud said, noting that an unborn child is a living viable foetus, which has chances of survival.

Stating that the woman’s autonomy is important but one must be conscious of the fact that whatever is done will affect the right of the unborn child, the bench clarified that it will not shy away from taking a call on the issue and asked the petitioner woman’s lawyer to speak to her.

The bench said there are two options – one to stop the foetal heart or the second option is delivering the child right now with deformities.

In the case of the first option – to stop the foetal heart- the bench said it would amount to the Supreme Court asking AIIMS to carry out the foeticide.

Noting the opinion by the AIIMS that the chance of the baby being born normal is much higher if they wait for a few more weeks, the bench said in the second option if the child is born deformed, none will adopt the child.

The court also said if the baby is delivered today, at the gestational period of 26-weeks, the child would be physically and mentally abnormal.

The doctors at AIIMS, who were asked by the top court on October 9 to examine the woman and terminate her pregnancy, have opined that the baby has a viable chance of being born, and termination of pregnancy may cause foeticide.

Telling the bench that reproductive rights are not an absolute right and the MTP rules prevented an unmarried woman from seeking termination of pregnancy after 24 weeks, Additional Solicitor General Aishwarya Bhati said the outer limit of 24-weeks can be breached only in two conditions–life of the mother or foetal abnormalities.

She told the bench that the petitioner woman is herself not sure and is in a very vulnerable state and at one stage she agreed to complete the pregnancy and deliver the baby, when she was told the baby can be given in adoption, and AIIMS can take care of mental health issues.

ASG Bhati said postpartum depression is a reality for many women and it can happen during gestation too.

In the course of the hearing, the lawyer appearing for the woman seeking MTP told the bench that the woman will not be able to take care of herself as her two other children are being taken care of by her mother-in-law.

The matter reached before the bench of Chief Justice Chandrachud, Justice Pardiwala and Justice Mishra, following a split order on Wednesday of a bench of Justice Hima Kohli and Justice B.V. Nagarathna.

While Justice Hima Kohli had said her judicial conscience does not allow to permit termination, Justice Nagarathna said the woman’s decision to undergo termination of her pregnancy must be respected.

The matter will be taken up for hearing again on Friday.