Supreme Court Allows Married Woman To Abort Unplanned Pregnancy At 26 Weeks Citing Mental & Financial Reasons

UPDATE ON OCTOBER 11, AFTER UNION'S RECALL APPLICATION - Supreme Court Bench Disagrees On Abortion Of 26-Week Pregnancy Of Married Woman, Refers To Larger Bench

The Supreme Court on Monday (09.10.2023) allowed the medical termination of pregnancy of a married woman who is 26 weeks pregnant. The petitioner, who is a mother of two children, told the Apex Court she is suffering post-partum depression and that she is not in a position to raise a third child, emotionally, financially and mentally. The Court was also informed that she has been undergoing psychiatric treatment for a year. 

"At the end of the day, this Court does recognise the decisional autonomy of the petitioner herein, who has taken a plea of her physical, psychological, mental, financial and social economic backgrounds, to seek termination of her pregnancy. This Court does recognise the right of a woman over her body and the fact that if an unwarranted pregnancy results in a child being brought into the world, a large part of the responsibility of rearing such a child will fall on the shoulder of the petitioner, which at this point she doesn't consider herself fit for", a bench of Justice Hima Kohli and Justice BV Nagarathna said.  

The petitioner informed the Court that she had used the contraceptive method of Lactational Amenorrhea, since she was breastfeeding her second child. However, this contraception method failed and resulted in her pregnancy, which she discovered belatedly. Pregnancy is rare when a mother is breastfeeding and the petitioner is a rare case, the Court observed. The Apex Court observed that medical reports estimate that this method usually provides over 95% protection. 

During the previous hearing, the Court had directed a medical board to be constituted by AIIMS to assess the medical condition of the petitioner. Today, the Court allowed the petitioner to appear virtually and asked her about her willingness to continue with the pregnancy.

She expressed her unwillingness for the same and sought permission from the Court for termination of her pregnancy. 

"..this Court has recognized the fact that one of the grounds on the basis of which pregnancy may be terminated is when continuing with the pregnancy could impair the mental health of the woman as observed in the case X v. Principal Secretary. The expression 'grave injury to her physical and mental health' as used in Section 3(2) of the MTP Act is used as an overarching and in an all encompassing sense. Courts have been expansively interpreting Section 5 of the MTP Act that permits termination of pregnancy beyond 20 weeks in circumstances where it is considered imperative to save the life of the woman. This Court has also recognized the fact that "mental health" has a broad connotation, beyond what is ordinarily considered as mental illness in common medical parlance. The different categories carved out in Rule 3 (B) on the Medical Termination of Pregnancy Rules, 2023 show that women can seek abortion even after 20 weeks, which could be on account of a delay in recognizing their pregnancy or a change of their life circumstances to the point that the pregnancy becomes unwarranted and unviable. Conceptions in Lactational Amenorrhea period has also been considered as one of the circumstances by the expert committee constituted to draft the MTP Rules, and draw up categories of women who qualify for Rule 3(B)", the Court said in its order. 

The Court allowed the writ petition with a direction to the Petitioner to visit the Obstetrics and Gynaecology Department, AIIMS, New Delhi tomorrow morning, i.e. on 10th October, 2023. AIIMS shall admit the petitioner for her to undergo the procedure of termination of her pregnancy at the earliest with follow up as may be advised by the treating doctors.

In event the foetus is alive, the process of incubation may be adopted as may be advised medically, the Court directed.