The Supreme Court on Friday directed the All India Institute of Medical Sciences to examine whether the postpartum psychosis medicines taken by a petitioner seeking the medical termination of her 26-week pregnancy have affected the foetus’ health, Live Law reported.

A three-judge bench comprising Chief Justice DY Chandrachud and Justices JB Pardiwala and Manoj Misra also asked AIIMS to conduct an independent evaluation of the mental and physical condition of the petitioner.

Additionally, the court asked whether alternate medication consistent with the petitioner’s pregnancy and that will not adversely impact the health of the mother and the foetus was available, reported The Hindu.

The Medical Termination of Pregnancy Act allows women to opt for abortion even after the 24-week limit, if a board of doctors agree that the continuation of pregnancy is a risk to her life or if a substantial abnormality was medically detected in the foetus.

The petitioner has sought abortion on the grounds that this is her third pregnancy and she is already suffering from postpartum psychosis since October 2022, when she delivered her second child. Her request to abort the pregnancy is also based on her financial situation.

Postpartum psychosis is a severe mental health condition that affects a person after they give birth. Those diagnosed with this condition often undergo hallucinations, delusions, paranoia or other behaviour changes. In some cases, mothers with postpartum psychosis also attempt to harm themselves or their newborn.

On Friday, advocate Amit Misra, appearing for the petitioner, told the court that the medicines for postpartum psychosis are not safe for pregnancy. He also said that the petitioner faces issues such as lack of sleep, suicidal thoughts and hallucinations if she does not take her medicines.

“She even tried to harm her child,” he said, reported Live Law. “That’s why the children are with her mother-in-law.”

However, Additional Solicitor General Aishwarya Bhati, representing the Centre, said that the medical board had denied the termination earlier because the unborn child has a reasonable chance of survival. She argued that an unborn child is protected by law once it becomes viable and healthy. It was only in exceptional cases of foetal abnormality or threat to life of the mother that termination of the pregnancy can be permitted beyond 24 weeks, she argued.

Chief Justice Chandrachud said that when the life of a woman was under threat, the foetus can be terminated regardless of its age, reported Live Law.

“Our law gives paramountcy to the woman’s life”, Chandrachud said.

Chandrachud also said that the rationale behind permitting termination beyond 24 weeks in cases of foetal abnormalities was that a child born thereafter with a foetal abnormality will affect the quality of life of both the parents and the child.

“There is no doubt that our law is far ahead of other countries,” he remarked. “We will not have a Roe versus Wade situation here. Our law is liberal and pro-choice.”

Access to safe abortions in the United States became difficult after the country’s Supreme Court in June 2022 overturned the landmark 1973 Roe versus Wade ruling that had made pregnancy termination a constitutional right.

The top court will next hear the matter on October 16.

The case

Last week, the Supreme Court had ordered a medical board to examine the mother after she submitted that she was unaware of her pregnancy because she suffers from lactational amenorrhea. Lactational amenorrhea is a period of temporary infertility or postpartum infertility when there is an absence of menstruation in a lactating mother.

On Monday, the Supreme Court allowed the woman to terminate the pregnancy. “The court does recognise the decisional autonomy of the petitioner who has taken a plea of her physical, mental, psychological, financial and social background to seek termination of her pregnancy,” the division bench said.

However, on Tuesday, the court asked the All India Institute of Medical Sciences to put the termination on hold after the Centre filed a recall application.

The Centre’s application stated that the doctors at the All India Institute of Medical Sciences, where the procedure was directed to be conducted, had raised the apprehension that the foetus would have a viable chance of being born.

The petition was referred to the three judge-bench headed by the chief justice after another bench of Justices Hima Kohli and BV Nagarathna, on Wednesday, gave a split opinion on the termination. While Kohli said that her “judicial conscience” does not allow her to permit the termination, Nagarathna said she found no reason to interfere with Monday’s order.

The chief justice’s bench remarked on Thursday that the court must balance the rights of the mother and her unborn child.