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Has the Supreme Court of India forced a mentally ill, perhaps even suicidal woman to go through with a pregnancy she did not want? In doing so, has it not walked back on its own progressive judgements on the need to uphold the bodily autonomy of women?
A 27-year-old married woman, a mother of two children, approached the court last month, asking for permission to abort her 26-week pregnancy because she was not “physically, mentally, psychologically or financially prepared” to have another child.
Societies refuse to acknowledge it but childbirth is traumatic, often taking a heavy toll on women’s bodies and minds. After the birth of her last child – just about a year ago – the woman had slipped into postpartum psychosis, a serious mental illness which has been described as a “psychiatric emergency”.
Then came the shock that her body, too, had tricked her. She was pregnant again, and it was already over 24 weeks. But how could a 27-year-old woman not realise she was pregnant? The petitioner told the court that as she was breastfeeding, her menstrual cycle was disrupted and she assumed she would not get pregnant.
Since 2021, Indian law allows termination of pregnancy up to 24 weeks for certain categories of women, including “mentally ill women”. Last year, in a landmark judgement authored by Chief Justice DY Chandrachud, the Supreme Court extended such relief to all women, whether married or unmarried, arguing that her reproductive autonomy was supreme.
Even so, the 27-year-old woman presented an atypical case. She was not a minor, or a victim of a sexual assault, or one who was carrying a foetus with significant abnormalities – all instances in which courts find it easier to be sympathetic to women seeking legal termination of pregnancy even outside limits set by law.
Nevertheless, a two-judge bench ruled in her favour. Justices Hima Kohli and BV Nagarathna found that she had clearly expressed her unwillingness to go through with the pregnancy and that her will had primacy in matters involving her own body. And second, that it was granting her permission to abort “looking at her precarious physical, mental and psychological condition”.
It directed the All India Institute of Medical Sciences to allow her to terminate her pregnancy. That is when this story began to unravel. The doctors at AIIMS contacted the additional solicitor general, asking for directions to stop “the foetal heartbeat” since carrying out a preterm delivery at 26 weeks would risk the child, if it survived, developing “long-term physical and mental disability”.
While preterm deliveries are used to abort in the early stages of pregnancy, in later stages doctors sometimes need to inject the foetus with a medicine. As Mumbai-based gynaecologist Dr Nikhil Datar explained to my colleague Tabbasum Barnagarwala, “Before 24 weeks, the process of expulsion from the womb automatically leads to the heart stopping. After 24 weeks, the process usually does not lead to the same result.”
He added that when medical termination of pregnancy is done after 24 weeks, “according to government guidelines, a sonography-guided injection to the foetal heart is done to stop the heartbeat and then the process of expulsion is initiated”.
The government then approached the Supreme Court, asking for a recall of the order. Justice Kohli withdrew her earlier ruling saying, “Which court will, pray, say stop a heartbeat of a foetus which has a life?” It is not clear, however, whether there are ways of aborting a foetus at this stage – other than a preterm delivery – which does not involve the cessation of the foetal heartbeat.
The woman’s case was then heard by a three-judge bench led by the Chief Justice.
Her lawyer informed the court of the severity of her condition: she suffered from “lack of sleep, hallucinations and suicidal attempts” if she missed a day of her psychiatric medication. “She even tried to harm her child,” her lawyer said. “That’s why the children are with the mother-in-law.” All of the above are symptoms of postpartum psychosis.
The judges – it is not clear why – appeared sceptical of the seriousness of the woman’s mental condition. Their focus, by now, was squarely on the wellbeing of the foetus. The court directed a medical board to examine whether the psychiatric medicines prescribed to the woman for postpartum psychosis could harm the foetus – and if so, what alternative medicines could be given to her to minimise the harm.
Arguing for the government, the additional solicitor general went a step further. She said “it was no longer an issue of the right of choice of a woman”, since 24 weeks had passed, but whether a foetus was “viable”. She claimed that doctors had in the past written about the “shrieks and cries” of foetuses aborted at a late stage of the pregnancy, according to several reports.
The three-judge bench, eventually, rejected the 27-year-old’s plea, reasoning that the foetus had no major abnormality and that there was “no immediate threat” to her life.
Perhaps, the judges are right: the 27-year-old woman may physically survive the act of childbirth. But they chose to entirely ignore her categorical, unequivocal wish not to have a child. They refused to acknowledge the anguish of a woman, already wounded and scarred by motherhood, who might even pose a risk to her children as she loses her grip on her self and sanity – as if three more months of pregnancy was a trifling matter to bodies used to the punishing rigours of womanhood.
What appeared to have prevailed was a moral panic about “shrieking” foetuses and “heartbeats” being stopped, statements which stoked needless paranoia about a common medical procedure. More worryingly, the government’s arguments set up an opposition between a woman’s right to her body and the “right of an unborn child”, which Indian law is silent on.
But, as Justice Nagarathna had argued in her dissenting opinion, “it would be incongruous to conclude that the foetus has a separate identity from the mother”, or that “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”.
Almost all our institutions, whether the family, the state, the judiciary or the medical establishment, are so steeped in patriarchy that they struggle to consider women as equal citizens, and accept the exercise of their will, unless they are clear victims – an unmarried mother, a rape victim.
A woman who refused to be a mother because of the horrors it had inflicted on her did not, unfortunately, fit the bill.
Instead what we are left with is, as Justice Nagarathna had warned, the “visceral image of forcing a woman to continue with an unwanted pregnancy”.
It also raises a worrying question: what precedent can such a judgement set for Indian women?
In many recent instances, the Supreme Court has been criticised for letting down principles that it has defended with great eloquence in the past – the utter disregard of a mentally distressed woman’s choice in this case should also figure in the list of bitter disappointments.