Unborn child vs full grown woman: Experts talk on SC's dilemma in 26 weeks pregnancy termination

In these cases, it may also become necessary to separate the child from the mother and treatment becomes very important

Representative graphic of Supreme Court of India (photo: IANS)
Representative graphic of Supreme Court of India (photo: IANS)


Three different benches of the Supreme Court have so far heard the case of a married woman who approached the top court to terminate her 26-week pregnancy.

The woman's counsel has submitted before the court that she suffers from post-partum psychosis from her previous pregnancy. Her two other children are kept away from her and taken care of by her mother-in-law as she is suicidal and there is a risk of infanticide due to her medical condition.

IANS talked to experts on post-partum psychosis; viability of the foetus and the rights of an unborn child and the woman and other crucial questions raised in the court.

How is post-partum psychosis different from post-partum depression?

Dr Chandrima Naskar, a senior psychiatrist told IANS that after childbirth there are three things that may happen to post-partum women:

First, post-partum blues is the most common and happens among a large proportion of women. Here they face general symptoms like feeling unhappy and low. This generally goes away with a tender approach, care and helping the mother with the new changes.

Second, in postpartum depression, the thoughts and cognition of a person are more in line with a proper depressive disorder. The person may feel persistently sad, hopeless and completely unattached to the child. It needs assessment and depending on the severity medications should be considered.

Third, postpartum psychosis is the least common among women. Here, the patient may have psychotic experiences like delusions, and hallucinations and may start believing things that are not true. 

In these cases, it may also become necessary to separate the child from the mother and treatment becomes very important.

Can anti-depressants affect the health of the foetus?

Dr Naskar explains that both post-partum depression and post-partum psychosis can be harbingers of long-term mental illness in the mother and says that not all medications for mental illness adversely affect the health of the foetus.

She adds that Valproate is often administered to treat symptoms of bipolar disorder. In this particular case if the woman was suffering from post-partum psychosis from a previous pregnancy, then it might be the case that she would have been administered Valproate. If she was given Valproate, then there might be various defects in the foetus.

She elaborates that it is very common for a patient with mental illness to get pregnant. "The gynaecologists generally immediately stop medications for mental illness, which later aggravates health issues at advanced stages of pregnancy. Not all medications prescribed by a psychiatrist are harmful to pregnant women. In fact, some medicines might facilitate an uneventful pregnancy."

Dr Naskar explains that there is a need for a policy intervention from the government on the medications for mental ailments being stopped by gynaecologists as soon as they detect pregnancy.

The government should provide a rule to take expert advice from the psychiatrist before the gynaecologist stops medications for pregnant women with mental ailments, she said.

Why prescriptions for mental disorders does not mention ailment?

The apex court on Friday directed AIIMS to file a fresh report and raised concerns about the prescriptions of the woman were silent on the ailment she suffered.

Dr Naskar, however, explains that it is a common practice among psychiatrists to not mention the ailment on prescription due to the confidentiality issue. "Prescriptions are something everyone can access and that is why we don't write the ailments on prescriptions," she said.

Prominent advocate and human rights activist Abha Singh told IANS, that documents giving details of mental health issues often are misused in divorce cases and other family disputes in the courts.

"It is important that privacy is maintained in prescription. We are living in a time where there is already a lot of stigma attached to mental health patients. The Supreme Court hearings are now live telecasted. The case should have been dealt with sensitively and expeditiously. Due to the recall appeal the case has now turned into a Legal circus." Singh said.

When does a foetus become viable?

Justice Hima Kohli while hearing the recall petition by the Centre on the basis of an AIIMS report brought up after the first judgment allowed the termination asked: "Why only after our order? Why were they (AIIMS) not candid earlier? Which court wants to stop a foetus with a heartbeat? Certainly not us, for heaven's sake."

While hearing the petitioner's counsel, the CJI on Thursday (October 12) stated that undoubtedly, the autonomy of women trumps, but the right of the unborn child should also be balanced out.

"What do you want us to tell the doctors to do? To close the foetal heart? AIIMS wants the court to issue that direction," the CJI asked the petitioner's counsel.

The counsel appearing for women replied, "Not at all".

"Who is appearing for the unborn child? You're for the mother, Ms Bhati for the government...How do you balance the rights of the unborn child? It's a living viable foetus," the further CJI asked.

After the termination of the pregnancy was allowed on October 9, AIIMS sought clarification from the top court on how it should proceed in terminating her pregnancy as the foetus appeared to be normal and viable.

Dr Naskar explains that detectable heartbeat and viability of the foetus are two separate things.

"Viability has nothing to do with heartbeat. As a doctor I feel, there is nothing called an unborn child. The heartbeat appears in the first trimester (first 12 weeks) itself. Till the child has not come out of the body, it is the mother," she said.

"The 25-week-limit for pregnancy termination is there to prevent risk to the mother's life while aborting the foetus. As after that termination can harm the mother's health too," she says.

She further explains that she has doubts about whether the concept of 'viability of the foetus' was built for the MTP Act. "Lawyers often take words from here and there and manipulate the cases," she said.

The question of viability generally comes in exceptional situations. For example, when the pregnant woman has gone through a severe accident we have to conduct an immediate procedure. An assessment is then made if the foetus is viable and can survive outside the womb with support from the incubator, Dr Naskar explained.

According to IMA guidelines of 2017, if a foetus is born between 20-24 weeks of pregnancy it is a not viable child and it is not advisable to resuscitate him or her but the child should be given comfort care. For a foetus born between 24-28 weeks, the chances of survival are less and should be decided on a case-to-case basis. And for a foetus born after 28 weeks, every effort should be made to ensure the child survives.

Notably, these guidelines were issued in 2017 after a premature newborn was wrongly declared dead at the Max Hospital and were not brought in for the amendments made to the MTP Act (2021).

The woman in the case reached the court in her 25th week. The woman's counsel submitted before the court that because of her ailments, she realised much later that she was pregnant.

Earlier, the Centre while bringing in the MTP amendments said in its press release, "It is a step towards safety and well-being of the women."

The amendments were made "with a view to increase upper gestation limit for termination of pregnancy (from 20 to 24 weeks) under certain conditions and to strengthen access to comprehensive abortion care, under strict conditions, without compromising service and quality of safe abortion."

The MTP Act increased the upper gestation limit from 20 to 24 weeks for special categories of women which will be defined in the amendments to the MTP Rules and would include survivors of rape, victims of incest and other vulnerable women (like differently-abled women, minors) etc.

Women autonomy over their bodies

Abha Singh said that the rights of the woman in question and her two children should also be considered along with the rights of the unborn child.

"It is high time that the government sits with the concerned NGOs and organisations to frame a comprehensive policy. The husband should also be held accountable for impregnating a woman suffering from such severe mental health conditions. The current law is silent on the accountability of men in such cases," Singh said.

"If we talk about the unborn child's right to live we must also talk about what the right to live entails. In India, the 'Right to Life' includes the right to live with dignity, privacy, education and so much more." Singh said.

"Can the Centre ensure adoption for the child and a decent life after being born? Since the case has garnered so much publicity, the family will now have to deal with the stigma that comes from suffering from mental health ailments in the country. What about their right to live with dignity?" Singh added.

Singh also said these inadequately framed laws are used by lawyers to garner publicity in such cases.


The woman seeking termination has time and again told different benches of the apex court that she does not want to keep the baby. However, the judges are all divided on allowing the termination.

On October 9, a special bench allowed the woman to terminate her pregnancy. The Centre approached the CJI's court for a recall order on the decision on the basis of the AIIMS report stating that the foetus is viable and there is a chance of survival is very much there.

The CJI put the order on hold and asked the bench to reconsider the order. Later, an all-women divisional bench gave a split verdict and referred the case to a larger bench.

The three-judge bench that will again hear the case on October 16 (Monday) has sought a fresh report from AIIMS on the condition of the mother and the foetus and whether there was any impact of the medicines prescribed to the woman for treatment of post-partum psychosis on the health of the foetus.

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