Abortion means choosing to end a pregnancy. Under the MTP (Medical Termination of Pregnancy) Act, 1971, in India, abortion is legal, decriminalizes the woman seeking abortion and promotes access to safe abortion services. Abortion must be carried out by a Registered Medical Practitioner/ Gynecologist at an approved medical facility (hospitals, clinics, family planning centres) that is equipped with all the necessary medical facilities and equipments, is safe and hygienic. This act also prevents disclosure of your private information to anyone by the medical facility or the doctor.

In India, abortion is legal if you are less than 20 weeks pregnant (20 weeks gestation) and if more than 12 weeks have passed, opinion of two doctors is necessary whether to proceed for abortion or not.

This week, a woman pleading the Bombay High Court to allow her to terminate her 28-week pregnancy on grounds that the foetus has grave medical abnormalities has caught the court in a fix. A bench of justices R M Borde and Rajesh Ketkar are handling this case.

The pregnant woman from Mumbai and her husband have pleaded on the grounds that not only will the child be born with abnormalities and face consequent difficulties in survival, but also forcing the woman to continue with the pregnancy will also cause her trauma and affect her mental health.

Now, the MTP Act has provisions to allow a woman to terminate her pregnancy even if it has gone beyond the permissible 20-week period if the pregnancy and child-birth poses a threat to the woman’s physical health or life, the Act DOES NOT deal with the mental health of the pregnant woman. It has no provision to deal with foetal abnormalities either.

In all such petitions that come before the Bombay HC, the court first refers the case to a medical board of expert doctors for their opinion on whether or not such pregnancy poses a threat to the life of the woman concerned.

Often other benches of the Bombay HC have permitted such petitioners, several of whom were minors, and also victims of rape, to terminate the pregnancy if the board had ruled there exists a risk to the woman’s life, or in some cases, if the board affirms that the foetus has irreparable or grave medical or genetic abnormalities.

This woman’s lawyer Meenaz Kakalia has urged the court to go beyond the definition of the health and life of the woman and the risks to it as defined under Section 5 of the MTP Act.

She has urged the court to consider the “mental anguish and the trauma that will be caused to the woman in forcing her to undergo the pregnancy, and to give birth knowing that the child will be born with life threatening problems, as akin to the possible harm to her life and her physical being.”

The bench, however, is in a fix, as the Ministry of Health and Family Welfare proposed amendments to the Act in 2014 – including introducing the concept of risks to the mental health of the woman and also the idea of substantial foetal abnormalities – in the latter case, a pregnancy can be terminated at any point during the pregnancy – the draft bill with such amendments is yet to be ratified by Parliament.

“You prove to us that the threats to the mental well- being of the petitioner is covered under Section 5 of the MTP Act and only then can we allow the plea. Sadly, while the proposed bill provides for the above concept, it is yet to become a law,” the bench said.

This particular case makes us a society and a constitution ponder over how seriously we must take mental health of a woman and the right of women over their own bodies and autonomy to plan their pregnancy based on parameters like their physical health, mental health, and medical fitness of the foetus at whichever point of the pregnancy term.

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