The Supreme Court of India has refused to allow a 27-year-old woman to terminate her 26-week pregnancy, despite her suffering from postpartum psychosis and suicidal tendencies. The court’s decision has been criticised by reproductive rights activists as a setback for women’s autonomy and a violation of the Medical Termination of Pregnancy Act, 2021.

Woman sought abortion on mental health grounds

The woman, identified as X, approached the Supreme Court after being denied an abortion at a health facility. She discovered her pregnancy at around 24 weeks due to a condition known as lactational amenorrhea, which leads to breastfeeding women not menstruating. She claimed that she was suffering from postpartum depression and psychosis, and had attempted to harm herself and her two children. She also said that she did not want another child as it would affect her physical, mental and financial well-being.

Court favoured foetal viability over woman’s autonomy

The Supreme Court constituted a medical board from the All India Institute of Medical Sciences (AIIMS) to examine the woman’s condition and the viability of the foetus. The board initially gave its approval for the abortion, and a bench of justices Hima Kohli and BV Nagarathna granted permission for the termination. However, one of the doctors on the board later wrote to the court, questioning the abortion, given the viable status of the foetus. This led to the reopening of the matter and a split verdict by the two judges, with justice Kohli opposing the abortion and justice Nagarathna supporting it. The matter was then referred to a larger bench led by Chief Justice NV Ramana, which decided against granting the abortion based on a new report by the medical board, which confirmed that the foetus had no abnormalities.

The court held that the woman did not meet the criteria for termination of pregnancy beyond 24 weeks, as per the Medical Termination of Pregnancy Act, 2021. The act allows abortion up to 24 weeks in cases of rape, incest, minors, widows, divorcees, disabled persons, mentally ill persons, foetal abnormality or humanitarian crises. The court also said that the woman did not qualify for the exception under Section 5 of the act, which permits abortion at any stage if it is necessary to save the life of the woman. The court noted that the woman’s mental health concerns were not sufficient to justify the termination, and that there was no imminent danger to her life.

Decision contradicts previous progressive rulings

The court’s decision has been widely condemned by reproductive rights advocates, who argue that it violates the woman’s right to bodily autonomy and choice. They point out that the decision contradicts the previous progressive rulings by the Supreme Court, which recognised abortion as a fundamental right of women and expanded the scope of the Medical Termination of Pregnancy Act, 2021. In September 2022, the Supreme Court ruled that all women, regardless of their marital status, could get an abortion up to 24 weeks, and that the meaning of rape would include marital rape. The court also said that the decision to carry or terminate a pregnancy was firmly rooted in a woman’s right to her bodily integrity and her ability to choose her path in life.

Reproductive rights activists also highlight the social and mental health impact of unwanted pregnancies, especially for women who face domestic violence, stigma, discrimination and lack of support. They call for a rights-based approach to abortion, which respects the agency and dignity of women, and does not subject them to the arbitrary and subjective opinions of doctors and judges.