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Did the Supreme Court of India force a mentally ill, perhaps even suicidal woman into a pregnancy she didn’t want? In doing so, did he not abandon his own progressive judgments about the need to support women’s bodily autonomy?
The 27-year-old married mother of two approached the court last month, seeking permission to terminate her 26-week pregnancy because she was not “physically, mentally, psychologically or financially ready” for another child.
Societies refuse to admit it, but childbirth is traumatic, often taking a heavy toll on women’s bodies and minds. After the birth of her last child – just a year ago – the woman fell into postpartum psychosis, a serious mental illness described as “psychiatric emergency“.
Then came the shock that her body had tricked her too. She was pregnant again, and it was already more than 24 weeks. But how could a 27-year-old woman not realize she was pregnant? The plaintiff told the court that her menstrual cycle was disturbed due to breastfeeding and she assumed that she would not become pregnant.
From 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 judgment authored by Chief Justice DY Chandrachud, the Supreme Court extended such relief to all women, whether married or unmarried, arguing that their reproductive autonomy is supreme.
Nevertheless, the 27-year-old woman represented an atypical case. She was not a minor, nor was she a victim of sexual assault, nor was she carrying a fetus with significant abnormalities – these are all cases in which it is easier for courts to be sympathetic to women seeking legal termination of pregnancy even beyond the limits prescribed by law.
Nevertheless, the bench ruled in her favor. Justices Hima Kohli and BV Nagarathna found that she had clearly expressed her unwillingness to continue with the pregnancy and that her will prevailed in matters involving her own body. And secondly, that it is permission for her to have an abortion “given her uncertain physical, mental and psychological condition”.
It directed the All India Institute of Medical Sciences to allow her to terminate the pregnancy. Then this story started to unravel. The AIIMS doctors approached the Additional Solicitor General, seeking directions to stop the “fetal heartbeat” as carrying out the premature delivery at 26 weeks would put the child at risk of developing “long-term physical and mental disability”, if it survives.
While preterm labor is used to terminate a pregnancy in the early stages of pregnancy, doctors sometimes have to inject the fetus with medicine in the later stages. As Mumbai-based gynecologist Dr. Nikhil Datar explained to my colleague Tabbasuma Barnagarwala, “Before 24 weeks, the process of expulsion from the uterus automatically leads to cardiac arrest. After 24 weeks, the process usually does not lead to the same result.”
He added that when a medical termination of pregnancy is performed after 24 weeks, “according to government guidelines, an injection is given to the fetal heart under sonography to stop the heartbeat and then the expulsion process is initiated.”
The government then appealed to the Supreme Court, seeking the revocation of the order. Justice Kohli retracted her earlier ruling, saying: “What court, please, will tell you to stop the heartbeat of a fetus that has life?” However, it is not clear whether there are ways to abort a fetus at this stage – other than premature delivery – that do not involve stopping the fetal heartbeat.
The woman’s case was then heard by a three-member court panel led by the chief justice.
Her lawyer he informed judgment about the seriousness of her condition: she suffered from “lack of sleep, hallucinations and suicide attempts” if she missed a day of psychiatric medication. “She even tried to harm her child,” her lawyer said He said. “That’s why the children are with their mother-in-law.” All of the above are symptoms of postpartum psychosis.
The judges – it is not clear why – seemed skeptical about the seriousness of the woman’s mental state. Their focus so far has been squarely on the well-being of the fetus. The court ordered a medical board to investigate whether the psychiatric drugs prescribed to the woman for postpartum psychosis could harm the fetus – and if so, what alternative drugs could be given to her to minimize the harm.
Arguing for the government, the Additional Solicitor General went a step further. She He said “it was no longer a question of the woman’s right to choose”, since 24 weeks had passed, but whether the fetus was “capable of life”. She claimed that doctors had in the past written about the “screams and cries” of fetuses aborted late in pregnancy, according to several reports.
The three-member court panel eventually rejected the 27-year-old’s request, explaining that the fetus had no major abnormalities and that there was no “immediate threat” to her life.
Maybe the judges are right: a 27-year-old woman can physically survive childbirth. But they decided to completely ignore her categorical, unequivocal wish not to have a child. They refused to acknowledge the suffering of a woman, already wounded and scarred by motherhood, who might even pose a risk to her children as she loses control of herself and her sanity – as if three more months of pregnancy were a trifle to bodies accustomed to the punishing rigors of womanhood.
A moral panic seemed to prevail over fetuses “screaming” and “heartbeats” stopping, statements that fueled unnecessary paranoia about a common medical procedure. More worryingly, the government’s arguments draw a contrast between a woman’s right to her own body and the “right to the unborn child”, on which Indian law is silent.
But, as Justice Nagarathna argued in her dissent, “it would be inappropriate to conclude that the fetus has a separate identity from the mother,” or that “despite the mother’s physical or mental health being compromised, she will have to continue the pregnancy until the fetus is give birth”.
Almost all our institutions, be it 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.
The woman who refused to be a mother because of the horror it caused her, unfortunately did not answer.
Instead, what we are left with is, as Justice Nagarathna warned, “a visceral picture of a woman being forced to continue with an unwanted pregnancy”.
It also raises a troubling question: What precedent might such a ruling set for Indian women?
In many recent cases the Supreme Court has been criticized for betraying the principles it has eloquently defended in the past – the complete disregard for the choices of a mentally challenged woman in this case should also be on the list of bitter disappointments.