Legislative discussions surrounding the 2020 Amendment Bill to amend the Medical Termination of Pregnancy Act (‘Act’) stated that it is an effort in ensuring autonomy for women who desire to terminate their pregnancy. The Supreme Court of India in X V. Principal Secretary, Health and Family Welfare Department, Govt. of NCT Delhi & Anr  held that the decision to carry the pregnancy to its full term or terminate it is rooted in the pregnant person’s right to decisional autonomy [99]. Despite this judgement, there remains a rigid statutory limit which fails to consider psychological health and hinders decisional autonomy of the pregnant person.

As per the Act, pregnancy can be terminated if it results in grave injury to the mental or physical health of the pregnant woman within 20 weeks and extends up to 24 weeks for specified categories of woman. Section 3(3) of the Act is an aid in assessing grave injury to mental health by taking into consideration the pregnant person’s “actual and foreseeable environment”. This has been construed in the X V judgement to include the surrounding environment such as their socio-economic condition, the impact of the pregnancy on their mental health [67], and material change in their circumstances [86] as relevant criteria to be considered for termination.

In a progressive judgement, the division bench of Bombay High Court placed the psychological health of the woman at the centre of its understanding of abortion law, allowing termination at 25 weeks in light of a report by the medical board stating that in view of the woman’s emotional health, the continuation of pregnancy would lead to grave psychological injury. The court emphasised on her sovereign entitlement to make autonomous choice to terminate [16].  This progressive interpretation of the Act is rarely adopted and in practice, courts tend to blindly enforce the statutory limit.

There have been cases where orders directing termination of pregnancy have been recalled despite careful consideration of the termination within the ambit of the Act. In X V. Union of India and Anr.  the court had to decide on the termination of  pregnancy at 26 weeks. The woman’s plea stated that she was suffering from postpartum depression, because of which she was not prepared to continue with her pregnancy. The medical opinion suggested termination however it indicated the foetus  as viable with reasonable chances of survival. The Supreme Court allowed termination, stating that if the pregnancy constitutes a grave threat to the mental health of the woman, it could be terminated. Immediately after the first order, a recall application was filed at the behest of the Union Government on the ground that the foetus was viable. The first order was recalled and a split second order was passed as the division bench could not reach a unanimous decision. Justice B.V. Nagarathna’s opinion is significant as it accorded primacy to the will of the woman. She emphasised on the right to decisional autonomy and held that the case was about the interest of the pregnant woman and not the viability of the foetus, as the foetus had no separate identity from the woman [7]. She stressed that courts can’t substitute their views in a case where the woman does not wish to carry on with unwanted pregnancy owing to her socio-economic condition and delicate mental health [4]. Due to the split judicial order, the matter was referred to a larger bench of three judges which opined that termination was not possible as the pregnancy had crossed the statutory limit of 24 weeks. Such a rigid statutory limit reading of the Act failed to consider her psychological health and decisional autonomy, unlike in the Bombay High Court case.

Bombay HC’s interpretation of the Act is significant as it placed decisional autonomy at centre of judicial decision. Even though the 2021 Act does not explicitly incorporate decisional autonomy, the Supreme Court’s decision recognised it as a fundamental right of the pregnant person. Courts therefore must adopt a progressive interpretation by according primacy to psychological health and decisional autonomy of the pregnant person to determine their own welfare in abortion cases.