Reproductive Rights In India: Precarious Intersection Of Mental Health And Abortion Law

Abortion in India is primarily governed by the MTP Act which was amended in 2021[ii] to extend the gestational limit for abortion from 20 to 24 weeks for certain categories of women. Section 3(2)(b) of the Act allows the same only if she falls under a specified category defined by the rules under the Act. However, this decision is not solely hers, at least two registered medical practitioners must assess her case for: a) risk to her life or severe harm to her physical or mental health, or; b) a serious physical or mental abnormality in the child if it were to be born.

The law also acknowledges the emotional toll of certain circumstances. If a pregnancy results from contraceptive failure, the distress it causes is legally presumed to be a grave injury to the woman's mental health. Likewise, if the pregnancy is a result of rape, the anguish it inflicts is automatically considered to be severe harm to her mental well-being.

Canvassing The Judicial Trend Of Order Reversal

The Delhi High Court, in R v. The Union of India through Secretary, Ministry of Health and Family Welfare and Others[iii] (hereinafter, 'R v. UOI'), via its order dated 4^th January 2024, had authorised a pregnant woman to undergo a termination of her pregnancy, which was at 29 weeks, citing her experiencing significant emotional distress and exhibiting suicidal tendencies following the death of her husband. However, vide its recent order dated 23^rd January 2024, the court has withdrawn its earlier order. Arguing that the child has a reasonable likelihood of survival, it was urged by the Central Government of India that the court should prioritise safeguarding the right to life of the unborn infant.

The Medical Board, constituted upon the court's order, had recommended against terminating the petitioner's pregnancy, citing Clause 3B(c) of the Medical Termination of Pregnancy Rules, 2003, which allows medical termination of pregnancy only up to 24 weeks of gestation. Rule 3B(c) declares that a woman is eligible for termination of her pregnancy under Section 3(2)(b) of the MTP Act, if there is a “change in the marital status during the ongoing pregnancy, such as widowhood or divorce.”

This development can be said to have followed suit as the Supreme Court of India, in X v. Union of India and Another,[iv] (hereinafter, 'X v. UOI') also took a step back and declined the plea for abortion of pregnancy in its 26^th week, after having previously allowed the same. In this case, as well, the abortion was sought primarily on the ground that the petitioner was mentally unwell. The medical board examining the case had confirmed postpartum psychosis.

It is to be noted that in R v. UOI, the court had earlier allowed the termination of pregnancy even at 29 weeks, addressing the peculiar circumstances of the case at hand: the psychiatric evaluation conducted on the court's direction had revealed that the Petitioner was suffering from extreme trauma due to the death of her husband. The decision reflected an expansive interpretation of reproductive rights, wherein mental health was afforded substantial weight. However, in a surprising reversal, the court withdrew its order weeks later, aligning with the Central Government's argument that the foetus had a reasonable chance of survival. This shift from prioritising maternal well-being to protecting foetal viability illustrates the precarious legal standing of abortion rights when gestation surpasses statutory limits (Section 3(2)(b) of the MTP Act limits the consideration of mental health of the pregnant woman up to the 24-week mark).

A similar oscillation was observed in X v. UOI, where the Supreme Court initially permitted a 26-week abortion on the grounds of the petitioner's deteriorating mental health. However, the Court subsequently rescinded its own order, citing a medical board's evaluation that the petitioner's psychiatric distress was not severe enough to override foetal viability concerns. These instances demonstrate the judiciary's inconsistent recognition of mental health as a legitimate factor in late-term abortion cases and ignorance of her lived reality.

Judicial Discretion, Subjectivity And Its Implications

Moreover, while the Supreme Court of India, in Suchita Srivastava v. Chandigarh Administration[v], has championed reproductive autonomy as an extension of personal liberty under Article 21, the existing framework does not provide women suffering from acute psychological distress the same relief available for cases involving fetal abnormalities. This creates an inconsistency in how maternal well-being is prioritized acknowledging mental health as a valid concern only within a limited timeframe. If we are to juxtapose women who have had an abortion with women who have been negated an abortion, the latter sect is more likely to have elevated levels of stress, lower satisfaction with life, and worse self-esteem[vi].

Studies suggest that unwanted pregnancies, especially those carried to term in distressing circumstances, may contribute to a cycle of intergenerational hardship, with potential links to increased crime rates, and instability in personal relationships.[vii] From a policy standpoint, this highlights the paramount importance of reproductive autonomy in shaping not just individual lives but broader social structures. Restrictive abortion laws do not merely coerce childbirth; they perpetuate systemic inequalities by disproportionately affecting underprivileged women who may lack the financial and emotional resources to navigate raising children in a suitable and nurturing environment.

At present, there is no uniform legal benchmark for determining the severity of mental health conditions that warrant late-term abortion. Thus, judicial wisdom is contingent on the recommendations of medical boards, whose assessments often differ. Of late, the judiciary appears increasingly inclined to toe the letter of the law and prioritise foetal viability over a woman's right to make reproductive choices, particularly in cases beyond the statutory limit. Despite legal recognition of mental health as a factor in abortion decisions, courts have been according it lesser weight than physical health risks.

The Way Forward

Serious efforts should be made to destigmatise abortion, both in legal discourse and societal attitudes, by recognising it as a legitimate healthcare procedure rather than a moral dilemma. Thus, while in the words of the Hon'ble Chief Justice of India (as he then was), Dr. Justice D.Y. Chandrachud, the Indian judiciary is liberal and pro-choice when it comes to granting abortion[viii], the recent regressive approach by the Indian judiciary begs introspection as to whether the right laid down by statute as well as precedents is being effectuated up to its intended extent.

The inconsistency in abortion rulings creates legal uncertainty and forces women into litigious struggles for bodily autonomy, rendering the larger scheme of the MTP Act ineffective. Therefore, on the legislature's part, a change in the letter of the law can better serve the purpose of reaffirming the importance and impact of a pregnant woman's mental health upon the pregnancy. The law must explicitly recognise severe psychological distress as a standalone justification for abortion beyond the prescribed gestational threshold, while integrating mental health screenings at the time of gestational screenings, allowing women to access psychological support without excessive red tapism. Additionally, a uniform approach to post-24-week abortion cases is essential. The judiciary should establish clear parameters for evaluating mental health claims to prevent arbitrary reversals.

It is particularly laudable, although equally ironic that, while countries like the United States have increasingly veered toward restrictive abortion policies, India's statutory framework has endeavoured to maintain a more equitable stance - broadening access to termination up to 24 weeks in specific circumstances, mirroring the gestational threshold once upheld in (now overturned) Roe v. Wade[ix].

While India's progressive stance and tolerance over the years are undoubtedly commendable, this is not to imply that we have attained an impeccable standard beyond critique. An abortion law that aspires to true equilibrium must extend its considerations beyond mere physical health risks, affording equal weight to the woman's mental well-being, especially in a society where mental health awareness remains nascent and entrenched stigma endures.

Thus, while the judiciary has indeed taken laudable steps in extending the Right to Abortion beyond the statutory threshold of 24 weeks, the moment demands an equally progressive interpretation of the law to safeguard the Right to Mental Health alongside reproductive autonomy. Until the legislature enacts a corresponding amendment, it is imperative that courts uphold the true essence of these rights, ensuring that women are not left navigating a labyrinth of legal hurdles, causing at best a hesitancy of a judge to allow the termination of pregnancy.

Views are personal.

[i] The Medical Termination of Pregnancy Act, 1971, No.34, Acts of Parliament, 1971 (India).