Bombay high court invokes WHO definition of mental health in MTP plea – Times of India

MUMBAI: “Reproductive rights also include the right of the woman to take a decision concerning reproduction free of discrimination, coercion and violence. Coercion and violence need not always be physical. It can be deduced from surrounding circumstances,” said the Bombay high court while permitting a 22-year-old victim of domestic violence to terminate her 23-week healthy foetus on her plea that its continuance would inflict mental trauma.
Parliament had recently extended the cutoff under the Medical Termination of Pregnancy (MTP) Act to 24 weeks from 20. But the new law is yet to come into force as the notification is awaited, the central government counsel, Purnima Awasthi, informed the HC.
The HC took note of the amendment and also that it provides for an MTP if continuance “would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health”.
The MTP Act also sets out that the woman’s environment be examined to determine whether the pregnancy would pose a risk to her. The Act explains where pregnancy is caused by a rape, the resultant anguish shall be presumed to constitute a grave injury to her mental health.
The HC said, “Rape is an instance of extreme sexual violence on a woman. Domestic violence is also violence committed on a woman though the degree may be lesser.” The expression “mental health” is a wider concept encompassing within its fold the expression “mental illness”, it said, adding: “The legislature has consciously used the expression ‘mental health’ in section 3(2)(b)(i) (which givers when pregnancies may be terminated by a registered practitioner) in contradistinction to the expression ‘mental illness’ or ‘mentally ill person’.”
Mental health is not defined under the MTP Act. Hence, the HC invoked the meaning given by the World Health Organisation (WHO) which defined mental health as a state of wellbeing in which every individual realises his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make contribution to his or her community.
Supreme Court too has consistently permitted MTPs which exceeded the 20-week ceiling where continuance would harm the woma’s mental health, among other reasons. The HC too had earlier held that it can give permission beyond 20 weeks if woman’s health is at stake.
The woman, who got married in January, had filed a petition through advocate Aditi Saxena, seeking permission to abort on the grounds that the pregnancy is having adverse impact on her mental health due to continuing domestic violence. The woman, daughter of two taxi drivers, also said she was seeking divorce. She said if a child is born and in its absence it would be difficult for her to raise the child as she does not have any source of income.
Saxena had cited a 2018 HC verdict which the bench considered. The HC’s view in the 2018 order was that “freedom of a pregnant woman to make a choice of reproduction which is an integral part of personal liberty”. It had said harm to her mental health forms a good legal ground to permit an MTP, if other legal provisions in law are met.
A board of JJ Hospital doctors directed by the HC to examine the woman had advised continuation of pregnancy. It clarified that it was “beyond” its authority to opine on any other cause, apart from medical cause, with regard to termination of pregnancy. Directed by HC in August to undergo MTP at Cooper hospital, she was admitted on August 4, and discharged on August16 following the procedure.