Despite limitations of the MTP Act, in the past too, courts have upheld choice and mental health as important factors in a woman’s decision to terminate pregnancy
Written by Aditi Saxena and Sneha Mukherjee
Today, the Supreme Court allowed an unmarried woman to abort a 23-week pregnancy, subject to the report by a medical board at AIIMS. Earlier, the Delhi High Court had refused to let the woman undergo abortion on the grounds that the Medical Termination of Pregnancy Rules 2021, do not extend the 24-week limit to unmarried women.
The Medical Termination of Pregnancy Act 1971 was amended in 2021. While it increased the permissible time limit for abortion from 20 weeks to 24 weeks, it did so for only certain categories of women. This classification of women finds mention in the Rules, currently under challenge in the Delhi High Court. The list is limited — minors, rape victims, women with change in marital status during pregnancy (widowhood and divorce), foetal anomalies, women with physical disabilities and women with mental illness including mental retardation — and excludes all other women.
The amendment is perhaps meant to be supportive of women, but it hardly does so. On the contrary, it is a half-hearted move towards greater abortion rights and a feeble attempt to codify the already-existing practice being followed by various high courts.
Even before the amendment and the new rules, the courts and particularly the Bombay High Court had led the jurisprudence on this issue. On several occasions, it upheld abortion to be an integral part of a woman’s personal liberty on various grounds. The most important of them remain — mental health and choice. The amendment fails to include much of the judicial progress made on this aspect.
In 2016, in a suo moto case where a female prisoner was denied an abortion after 20 weeks, a bench of Justices VK Tahilramani and Mridula Bhatkar allowed the prisoner to undergo the procedure and said, “abortion is always a difficult and careful decision and the woman alone should be the choice maker”.
In 2018, a division bench of Justices RM Borde and RG Ketkar held that if the continuation of pregnancy is harmful to the mental health of the woman, then it is a good and legal ground to allow termination of pregnancy in the case of a 27-week pregnant woman.
Coming closest in similarity to the case before the Delhi High Court and the Supreme Court, in June 2020, a bench of Justice SJ Kathawalla and SP Tavade permitted a 23-year-old unmarried woman with 23-week pregnancy arising out of consensual sex to abort it, as a continuation of pregnancy for an unmarried, single, working woman could cause injury to her mental health.
When it comes to mental health and choice as grounds for abortion, there is very little that even the medical boards have to offer. Medical boards were never part of the law. They were introduced by the Supreme Court in a case in 2016. Since then, in the absence of any update in the law, high courts relied on the opinion of the medical boards to allow or refuse permission for abortion in any case beyond 20 weeks of pregnancy.
With the awareness and judicial progress, medical boards were met with questions of choice and mental health. In more than one instance, they refused to recommend abortion, yet high courts have upheld it as a matter of right.
In August 2021, a woman who suffered domestic violence but was still legally married approached the Bombay High Court for medical termination, for she made the decision later than the 20-week time limit. The medical board refused to recommend it. Superseding it, a bench of Justice Ujjal Bhuyan and Madhav Jamdar allowed her to abort anyway on the grounds, purely, of mental health, differentiating it from diagnosable mental illness.
In 2018, the bench of Justice AS Oka and Justice MS Sonak was met with an unusual situation. A woman who was 21 weeks pregnant, with foetal anomalies, was recommended by the medical board to undergo an abortion, but it asked her to take responsibility if the child was born alive. This made the process more burdensome for the woman, not to mention the impact on her mental health. The court, then, passed detailed directions in the matter and shifted the responsibility to the State, if a similar situation were to arise again.
In the same year, when a woman wanted to terminate her pregnancy on the grounds that the foetus suffered from chromosomal anomalies, the medical board initially refused to recommend it, as the prognosis of the child, after birth, would not have been poor. When it was pointed out to the bench that her mental health had to be considered in the process, the bench of Justice AS Oka and SK Shinde set up a fresh committee with experts in the field of mental health. Even the second committee failed to look at it from the aspect of mental health. Then the bench, for the third time, issued specific questions to the committee. This time around, the woman gave up and never appeared before the committee, and continued to carry the pregnancy.
This is the story across many states. In 2021, a medical board in Delhi delayed the medical opinion by over two weeks. After a delay of almost two weeks, the board submitted an inconclusive report requesting further time to conduct more tests. Regardless, Delhi High Court allowed abortion stating that disallowing it is likely to cause severe psychological harm to the woman.
In another case, in December 2021, Delhi High Court allowed abortion despite another rejection from the medical board on the ground that even though the foetus suffered from several abnormalities, there is an 80 per cent chance of it being viable, contingent upon multiple cardiac surgeries during infancy and adulthood. The Court observed that a plain reading of the provisions of the Act shows that mental health is a legal ground available to women seeking MTP and in considering the case it was necessary to also assess the actual and reasonable foreseeable environment.
In today’s case before the Supreme Court, it has allowed the unmarried woman to abort the pregnancy as a matter of choice. While it has referred the matter for expert opinion from AIIMS, this is only to ascertain that there is no danger to the life of the woman in the whole process. The Supreme Court has not relied on the medical board for any third-party authorisation.
It was only in 2009 that the Supreme Court held that a woman’s right to make reproductive choices is also a dimension of personal liberty. We have travelled a long way from access to safe abortion in cases of delayed pregnancy only to save the life of the woman to today, when mental health and choice are contributing factors to the process. But all is not yet well.
Abortion remains a social stigma, medical boards are codified for pregnancies after 24 weeks and the marital status of the woman remains a factor. There is limited awareness and implementation of the Act particularly in rural areas and the language of the law is still provider-centric. Additionally, women still have to undergo the judicial process in much-delayed pregnancies and courts sometimes take a regressive view of abortion rights. What the courts must do, however, is become torch bearers of abortion rights whenever they are called upon to do so.
Saxena is a practising lawyer at Bombay High Court and Mukherjee is a practising lawyer at Delhi High Court. The authors have represented the women in some of the cases mentioned
Source: Indian Express.