A complicated case of abortion

First, let’s look at the law

The MTP Act: In 1964, the government set up the Shantilal Shah committee—which recommended legalising abortion. This didn’t happen until 1971—when the Medical Termination of Pregnancy Act was finally passed. The MTP Act did not legalise abortion—rather, it laid out exceptions to Section 312. Abortion would be permitted upto 20 weeks if carried out by a licensed medical practitioner if: 

• The pregnancy involves a risk to the life of the pregnant woman—or cause grave injury to her physical or mental health. 
• There is substantial risk of physical or mental deficiencies if the child is born.
• The pregnancy is caused by rape—and therefore constitutes grave injury to mental health of the woman.
• The pregnancy is due to contraceptive failure in a married woman or her husband—which again would pose a danger to her mental health.

The big 2021 amendment: The government finally revamped the law last year—and liberalised some of its outdated provisions:

• Contraceptive failure was made a valid reason for “any woman or her partner” to seek an abortion—which now included unmarried women.
• The upper limit was raised from 20 to 24 weeks for cases that involve rape, incest, differently abled women or minors. It was also available for married women, divorcees, widows, women with mental illnesses—but not for unmarried women. 
• The requirement for a doctor’s approval was also softened. All pregnancies up to 20 weeks only required the sign-off of one doctor. 

The 2022 Supreme Court ruling: decisively upheld a woman’s right to choose:

Importantly, it is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion… Depriving women of autonomy not only over their bodies but also over their lives would be an affront to their dignity.

It also declared that all women—married and unmarried—are entitled to safe and legal abortions till 24 weeks. The Court also made important observations about marital rape, trans women and minors—all of which are discussed in great detail in this Big Story.

Next, the facts of the case

The basic deets: A woman approached the Supreme Court requesting permission to terminate her pregnancy. She was over 24 weeks pregnant—i.e past the legal limit. She says that she already has two children—and is suffering from severe mental health issues. Her lawyer most recently revealed that she had attempted to die by suicide. She has also said she was not aware of being pregnant—as she was still breast-feeding her child. Lactational Amenorrhea is used to describe the fact that many women do not get their periods while they are lactating.  

The case: The plea was first heard by a two-justice bench who issued an order giving her permission on October 9:

The apex court had on October 9 allowed the woman to proceed with medical termination of pregnancy after taking note that she was suffering from depression and was not in a position to raise a third child "emotionally, financially and mentally". The woman had told the Bench that she was taking medication for her mental condition. 

The medical board: The law requires a medical board to approve a woman’s request for termination—after the pregnancy passes 24 weeks. After the first order was issued, one member of the AIIMS board wrote to the Additional Solicitor General—who represents the government in the matter—laying out three key concerns: 

• To terminate the pregnancy, doctors will first have to stop the heartbeat of the foetus—aka perform foeticide. This is never done for a healthy, viable foetus—as in this case.
• If the foetus is delivered immediately—instead of being carried to term—there is a high possibility of “immediate and long term physical and mental disability”, “…which will seriously jeopardise the quality of life of the child.”
• The likelihood of postpartum psychosis remains the same—whether she carries the foetus to term or not.

The medical board had in fact offered its opinion that permission should be denied—which the two justices had overruled. 

The U-turn: The government went back to Court to appeal its opinion—offering the letter as new information. As a result, the two justices were unable to agree on a verdict. One said that her “judicial conscience” did not allow her to give permission: "Which court will say ‘stop the heartbeat of a foetus which has life’? We are wondering which court would do that. Speaking for myself, I would not." 

But the other justice insisted that the woman’s right to choose remains paramount:

It would be incongruous to conclude that the foetus has a separate identity from the mother and in spite of the physical or mental health of a mother being under threat, she will have to continue her pregnancy until the foetus is born which would endanger her delicate health. 

The case was then referred to a larger bench.

The latest arguments: The matter was then heard on October 12 by a three-justice bench headed by Chief Justice DY Chandrachud. The government offered the straight-forward argument that an abortion is simply not permitted by current law: 

Additional Solicitor General Aishwarya Bhati, argued before the Court that the "exceptional circumstances" which allowed the termination of pregnancy post 24 weeks under the Medical Termination of Pregnancy, i.e, threat to the life of the mother or foetal abnormality, did not exist in the case at hand. She asserted that that a mother's right of decisional autonomy or other reproductive rights were not absolute in nature and were circumscribed by the law made by Parliament. She added that in the present case, the law had not been challenged.

OTOH, the woman’s lawyer said she is no longer asking for permission for an abortion:

The petitioner's counsel said that she does not want the child to be aborted now; instead, she was seeking a permission to deliver the child through C-section now instead of waiting till the full term. The counsel said that the petitioner was not in a mental state to carry the pregnancy to the full term. He pointed out that the woman had the previous delivery in September 2022 and was undergoing post-partum depression, which will worsen if the pregnancy is continued.

They also argued that the strong medication prescribed for her condition posed a threat to the foetus’ health.

The Supreme Court’s dilemma: Justice Chandrachud appeared flat out unwilling to permit an abortion, saying: "We cannot kill a child.” He also suggested that refusing to carry the foetus to term would jeopardise its future: “If the child is born alive right now, then the child will be born with physical and mental deformities. If you wait for eight weeks, it will be a normal child in all probability.” But most importantly, he declared that abortion rights are not absolute: 

The Parliament has enacted a law and it reflects a balance between pro-choice and pro-life, and when Parliament gave a cut-off it was aware of all considerations and the 24-week cut-off was to balance this aspect.

Also this:

We must also think of the right of the unborn child. Woman's autonomy is important of course. She has a right under Article 21...but equally, we must be conscious of the fact that whatever is done will affect the right of the unborn child. Who is appearing for the unborn child? You're for the mother, Ms Bhati for government...How do you balance the rights of the unborn child? It's a living viable foetus. Today its chances of survival are there but very likely that child would be born with deformities.

Where we are now: The Court has asked for more information. It wants AIIMS to ascertain if the foetus already suffers from significant abnormalities—which is one of the requirements for an abortion past 24 weeks. In a recent case, the Delhi High Court greenlit an abortion at 30-33 weeks because the foetus suffered from a severe cerebral abnormality—that would cause seizures throughout its life. Mental health of the woman is not sufficient justification in itself as per the law.

The Court also wants to know if the woman does indeed suffer from postpartum psychosis. And if her prescribed medications pose a hazard to the foetus—and if a less harmful medication can be given instead. The next hearing is scheduled for October 16.

Point to note: Since the law is all about timing, here’s the exact timeline of the pregnancy—that we were able to tease out of the reporting:

• On September 28, the woman discovered she was pregnant—at 24 weeks and five days.
• On October 4, she approached the Supreme Court. On October 6, she went through the law-mandated assessment by a medical board. At this point, she was 25 weeks and three days pregnant. 
• On October 9—when the Court delivered a split verdict—she was already 26 weeks pregnant.

The bottomline: Abortion is complicated and messy. As is mental health. A simple ‘right to life’ vs ‘right to choose’ debate rarely acknowledges the vast grey area that the law has to wrestle with. There are no good choices in a case like this.

Reading list

The Leaflet has the best overview and details of the case—while Livelaw has more on the court proceedings. Dipika Jain in Indian Express makes the case for upholding the right to choose. Also in Indian Express: the arguments offered by the medical board to deny permission. The News Minute looks at the case where abortion was permitted at 30-33 weeks. Our Big Story has everything you need to know about the history of abortion laws in India—and the 2022 Supreme Court ruling.