Unwanted pregnancies can have a debilitating effect on women’s physical and mental health. An objective assessment of this impact is sometimes difficult. The preservation of mental health should be within women’s rights to reproductive freedom. However, recent Indian court rulings on abortion have shown inconsistency on this front.
Medical Termination of Pregnancy Act, 1971 (MTP)
The MTP Act permits abortion with a Registered Medical Practitioner’s (RMP’s) consent up to 20 weeks. From 20-24 weeks, a pregnancy can be terminated in exceptional circumstances with opinions from at least two RMPs. Beyond 24 weeks, abortions are to be decided by courts on the basis of a report by a medical board.
The law allows abortion on the grounds of injury to mental health in case of sexual assault or failure of contraception. However, this applies only where the pregnancy is within 24 weeks. This leaves women, reliant on the courts and medical boards past the limits specified in the Act, experiencing mental health threats due to an unwanted pregnancy.
Subsection 3(3) of the Act states that, “…in determining whether the continuance of a pregnancy would involve such risk of injury to the health, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.’ This provision has been of particular significance in judicial decisions on abortion as it has been used by courts to interpret the MTP Act expansively in allowing abortion beyond 24 weeks. One of the main considerations in granting such requests has been the threat to mental health of the woman. However, in many cases, courts have not weighed this threat when deciding late-term requests, resulting in denial of abortion and inconsistent jurisprudence.
Protecting reproductive rights
In X.Y.Z. v The Dean of B.J. Government Medical College (2024) the Bombay high court allowed a 19-year-old woman to terminate her 25-week pregnancy. The court based its decision on a woman’s right to bodily autonomy and mental well-being and observed that the impact on a woman’s mental health is not limited to pregnancy caused due to rape, failure of contraception or foetal abnormality as stated in the law. This implied that even in situations other than these, the mental well-being of a woman has to be considered by the medical board in assessing abortion requests.
Notably, the court built upon the precedent set in A (Mother of X) v State of Maharashtra (2024) where the Supreme Court emphasised the importance of considering a pregnant person’s physical and mental health as well as agency, when forming a medical opinion. The court directed medical boards to take the petitioner’s material circumstances into consideration while forming their opinion of termination of pregnancy, not just the upper gestational limit set by the Act.
Also read: India Needs More Research on Aftereffects of Pregnancy and Childbirth
In the landmark X v Principal Secretary, NCT Delhi, (2022) the Supreme Court acknowledged societal stigma surrounding unmarried mothers and the financial strain they may experience, recognising their potential threat to mental health. It further underscored the importance of considering a woman’s “actual or reasonably foreseeable environment” while assessing mental health risks and noted that forcing a woman to carry an unwanted pregnancy perpetuates trauma and harms her mental health.
While this is a welcome step, this understanding has not been consistently applied.
The discordance
In January 2024, in R v Union of India, the Supreme Court denied an abortion to a recently widowed woman who was severely depressed and displayed suicidal ideation. The focus on foetal viability and the woman’s “future pregnancies” reflected how the material circumstances of the woman, her mental health, and her reproductive rights were disregarded by the court and the medical board.
Similarly, in May 2024, in H v Union of India the Supreme Court, the abortion plea of an unmarried, 20-year-old woman was rejected despite the harm it posed to her mental health. She was a young NEET aspirant whose career, physical health, and mental well-being were all jeopardised by the pregnancy, as highlighted in her petition, but the court ruled that abortion beyond 24 weeks was permissible only in cases of substantial foetal abnormality.
In an earlier case, X v Union of India, (2023) a 27-year-old woman, suffering from postpartum depression, was denied an abortion despite her plea that her material circumstances, financial situation and mental health did not allow her to raise another child.
Here, the issues framed for obtaining a report from the medical board were solely from the point of view of the health of the foetus; consideration for the pregnant woman’s mental health and choice were essentially non-existent or, at best, secondary.
Tellingly, the issues were framed around i) foetal abnormality ii) impact of the the mother’s postpartum depression drugs on the foetus and iii) if the alternated administration of medication consistent with the pregnancy would be available so as not to jeopardise the well-being of the foetus and the woman.
This is in stark contrast to the Supreme Court’s own decisions, where, on one hand, it granted abortion requests beyond the statutory limit based on the consideration of threats to mental health and the material circumstances of the pregnant woman. On the other hand, in cases where the petitioner was demonstrably suffering from depression and other severe mental health issues, it failed to recognize this aspect and denied abortion.
Mental health and reproductive justice are inextricably linked, as denial of one fundamentally affects the other. Forcing a woman to carry an unwanted pregnancy puts her under undue mental stress and is antithetical to her right to reproductive justice as established in K.S. Puttaswamy v Union of India (2017).
The irregular application of established legal principles, further hampered by narrow interpretation of the law, undermines the legitimacy of India’s abortion law as ‘liberal’ or ‘pro-choice’.
Anima Anjuri and Harshda Bargal are lawyers and work at the Centre for Health Equity, Law and Policy (C-HELP) at Indian Law Society in Pune.
