Mother’s Right Vs Foeticide

On 4th August 2008, the Bombay High Court passed a ruling against aborting a 25
week foetus, which had a major heart ailment. According to the Abortion Control laws of
this land, an abortion can take place after the 20 week stipulated period only if it is a
threat to the health of the mother and not to that of the foetus. Furthermore, the court took
into account the opinion of a three-member panel of doctors of JJ Hospital which
contradicted its earlier conclusion, when it said “there were least chances" that the child
would be born with a handicap. The panel earlier said there were "fair chances" the child
would be born handicapped or incapacitated. The Court observed that “the medical
experts did not express any categorical opinion that the child when born will be severely
handicapped.” They were also not sure based on the situation, as of now, whether surgery
would be required at or after birth. The Court held that abortion at 25 weeks is a painful
process as the foetus has to be induced with partial birth, which is painful for the foetus.

The petitioners, Nikita and Harsh Mehta had moved the Bombay High Court
seeking abortion of the 25 week foetus and the amendment of the Medical Termination of
Pregnancy Act, 1971, after it was found during a routine diagnosis in the 24th week that
the foetus was suffering from a congenital heart block. In the petition, the couple had
sought the abortion of the foetus because it was required that it be fitted with a pacemaker
upon its birth which was required to be changed every five years. They felt that it would
not be an economically viable option for them. Apart from that, even with the fitted
pacemaker the child, when born, would lead a poor life with several restrictions. All these
contentions were rejected. The Division Bench of Justice R M S Khandeparkar and
Justice Amjad Sayed further held that they cannot alter the provision under the Medical
Termination of Pregnancy Act. “It is the job of the legislature to help you alter the
provision. We cannot legislate the provision.”

Section 312 of the Indian Penal Code, defines the offence of 'causing miscarriage'
as follows- "whoever voluntarily causes a woman with child to miscarry shall, if such
miscarriage be not caused in good faith for the purpose of saving the life of the woman,
be punished with imprisonment of either description for a term which may extend to 3
years, or with fine, or with both; and, if the woman be quick with child, shall be punished
with imprisonment of either description for a term which may extend to 7 years, and shall
also be liable to fine.”

A woman, who causes herself to miscarry, is within the meaning of this section.
The framers of the Code have not used the word 'abortion' in Sec.312, which only talks
about the unlawful termination of pregnancy. This section speaks of 'miscarriage' only,
which has not been defined in the Code. However, miscarriage, in its popular sense, is
synonymous with abortion and consists in the expulsion of the embryo-foetus at any time
before it reaches full growth. Miscarriage technically refers to spontaneous abortion,
whereas voluntarily causing miscarriage, which is an offence under the Code, stands for
criminal abortion. As defined in Webster’s Dictionary and held in Re: Malayara Seethu1,
it is defined as “the expulsion of a human taken from the womb before it is viable.” It
also means the expulsion of the product of conception before the twenty-eighth week of
conception and a child born out of miscarriage could not survive even with special care.2
Legally miscarriage means the premature expulsion of the product of conception, an
ovum, or foetus from the uterus at any time before the full term is reached. A distinction
is made under Section 312 of Code between causing miscarriage when a woman is 'with
child' and when she is 'quick with child'. As per judicial interpretation, a woman is
considered to be in the former stage as soon as gestation begins and in the later stage
when the motion is felt by the mother. In other words “quickening” is the perception by
the mother that movement of the foetus has started. It obviously refers to an advanced
stage of pregnancy. Sec 312 of the Code permits termination of pregnancy on therapeutic
(medical) grounds in order to protect the life of the mother. The unborn child in the
womb must not be destroyed unless the destruction of the child is for the purpose of
preserving the yet more precious life of the mother. The provision by implication
recognizes that the foetus has the right to life. When the termination of pregnancy is
caused without the consent of the women, punishment may extend to imprisonment for

1
AIR 1958 Mys 27
2
Mahendra v. Sushila, AIR 1965 SC 364
life or imprisonment of either description for a term, which may extend to 10 years or
fine.3

The case has sparked debate all over the country. It has become a cause for
nationwide debate. Union Minister, Anbumani Ramadoss held that “one case cannot be
the argument to amend a law”. However, he added that a “broad discussion” would take
place on “all aspects of such cases”. Several people reacted in ways; either supporting the
decision of the petitioners or supporting the Medical Termination of Pregnancy Act. The
Federation of Obstetrics and Gynaecology Society of India has been repeatedly trying to
increase the cut-off time to 24 to 26 weeks, as in the case of most of the states of the
United States of America and United Kingdom. Jaydeep Tank, Chairperson of The
Medical Termination of Pregnancy Committee expressed his opinion by saying “I am a
little disappointed because ultimately it is the woman’s right to choose. However, taking
this case the High Court could have given directives to draft fresh guidelines. I honestly
feel justice would have only been served if termination was allowed. According to the
report submitted by the expert committee, paediatrics and cardiologists, all suggested
termination.”

Another noted pediatrician, Dr. Sunil Mehra, however, begs to differ. He urges
caution while coming to conclusion based on one case. He said “the laws that we have is
in line with the rights-based approach to human life and probably no court would ever
say that you are allowed to abort a child after 20 weeks of pregnancy. If the Court had
allowed it, the misuse would be very heavy. The worry is foeticide. We are already a
country where we are managing strict laws for making sure such malpractice is
removed.” Of the two opinions, the former is echoed by most experts who state that the
child’s abnormality should have been the focus rather than its age.

Legally and medically, the Nikita Mehta case has been a huge circle of events
where people have been busy taking sides. But one needs to take a closer look at the
legality behind the case. The case has thrown up a fascinating number of issues that

3
Section 313, Indian Penal Code (45 of 1860)
concern individual choice, ethics, technology and the law. In each instance, there are no
clear guidelines- there is nothing that is black and white.

Much has been stressed on the right of Nikita as a mother to choose whether she
wants to bring this child into the world or not and whether she wants to be burdened with
the possibility of a disabled child. There is nothing wrong with this formulation. "A lot of
suffering is involved in bringing up an abnormal child. In this case, it is clear that the
child will have to be fitted with a pacemaker every few years. Most civilized countries
allow abortions when it is established that the child will have a lifelong ailment and the
parents' plea was completely justified. The law needs to be changed," said Dr I C Verma,
Head of Department of Genetic Medicine, Sir Gangaram Hospital, New Delhi. "By
keeping the legal limit at 20 weeks, we are forcing parents to rush into a decision. Many
times, abnormalities are detected after the 20th week. It is not possible to detect all
complications within 20 weeks," said Dr Anita Kaul, Department of Foetal Medicine,
Indraprastha Apollo Hospitals. "We need to revise the law and be easy on parents as
well," she added. She further stated, "Abnormalities of the heart (as in the case of the
Mehtas), kidney and spine are usually not clear till last stages of pregnancy. In such
cases, abortions should be allowed".

Another contention that needs to be focused on is the fact that the Court
specifically pointed out that one of the reason that the petition was rejected was because
the abortion would cause pain to the foetus. It is true that the procedure that induces
labour and causes partial birth is painful but one wonders how much more painful the
process of operating on a mere child to insert a pacemaker in it would be. To add to this it
is not a one step procedure. The procedure needs to be repeated again and again every
five years. Would such a step not cause pain to a child which is merely a day old? One
wonders whether inducing pain once is not better than inducing it again and again.
Furthermore, would it not be better to not live at all rather to live only a half life, without
the joys of a normal life?

However, it is like the two sides of a coin - one supporting and the other one
opposing. The battle for women’s reproductive rights has rested on the issue of choice.
Yet, there are limitations — ethical, scientific and legal. For example, women’s groups
around the world have fought for liberal abortion laws so that women do not have to put
their lives at risk by seeking illegal abortions as a result of unwanted pregnancies. Yet in
India, women’s groups have had to figure out how to prevent a liberal law from being
misused for sex-selective abortions. Of course, it could be argued, and indeed has been
argued, that this too is a woman’s choice. Women prefer not to give birth to girls because
they want to spare them the suffering that they are bound to encounter for the rest of their
lives as well as the problems they themselves will face as mothers of girls. Yet, the
“choice” for sex-selective abortions has been denied under law in India because of the
growing evidence of its impact on sex ratios in some parts of the country.

Young girls are conspicuous by their absence in Fatehgarh Sahib, a small town in
the prosperous state of Punjab. On the streets, in homes, in schools and even in meetings
to discuss the abhorrent practice of pre-natal sex determination, mothers are accompanied
only by little boys. Not surprising, since Fatehgarh district has the dubious distinction of
having the lowest child sex ratio in the country. With the child sex ratio (0-6 years)
plummeting from 874 girls for every 1,000 boys in 1991 to an abysmal 754 in 2001, it is
apparent that something is seriously amiss.

The results of the 2001 census set alarm bells ringing amongst policy planners
and leaders alike. Punjab, with a child sex ratio of 793, was forced to acknowledge the
situation and take corrective steps. Responding to the declining sex ratio as a social
problem, the Akal Takht - the highest seat of spiritual and temporal authority amongst
Sikhs - issued a hukumnama (diktat) on April 6, 2001, prohibiting pre-natal sex
determination and threatening violators with social boycott and excommunication. On its
part, the Punjab health department set in motion various awareness campaigns to counter
the menace. Unimpressed, the Supreme Court in May last year directed all states,
particularly Punjab, to show their commitment to the issue by implementing the Pre-
Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.

In their writ petition, activist Sabu George, CEHAT (Center for Enquiry into
Health and Allied Themes) and MASUM (Mahila Sarvangeen Utkarsh Mandal) had
asked for the implementation of existing legislation banning pre-natal sex-selection and
also an amendment of the law to include newer sex selection techniques. With states still
dragging their feet, the Supreme Court issued another order in December last year
demanding proof that state governments were serious about implementation of the PNDT
Act. In a flurry of activity, the Punjab government registered 14 cases over the next few
months. Ironically, it is women themselves who are being further victimized in the zeal to
implement the Act. Says Veena Sharma, a Chandigarh-based lawyer with the Human
Rights Law Network (HRLN), "A woman who aborted a five-month foetus following a
sex-determination test was picked up by the police, even as she was bleeding profusely,
and imprisoned along with her sister-in- law." In this case, the doctor who performed the
ultrasound is absconding. In fact, he has been granted anticipatory bail while the hapless
woman has no recourse to justice since the Public Prosecutor takes no interest in her case.
It is the HRLN that is now supporting the woman while the case drags on.

The involvement of the police only contributes to corruption, since the persons
running the ultrasound centers get prior information and either wind up operations or run
away from the scene. In fact, the police need not enter the picture at all, since the PNDT
Act provides for an 'Appropriate Authority' to implement the law. Faulty interpretation of
the law adds to biased implementation. For instance, registering a case under the archaic
Section 312 of the Indian Penal Code of 1860 (though it has been superseded by the
Medical Termination of Pregnancy Act, 1971, which legalizes abortion) shifts the focus
from sex-determination, which is a crime, to abortion, which is not a crime.

Other misguided measures taken by the government include putting the onus on
pregnant women rather than focusing on medical practitioners, the major culprits. For
instance, an April news report titled "Pregnant women beware, Big Brother's watching",
quotes Director (Health) Dr DPS Sandhu saying that all pregnant women in Punjab who
already have two daughters will be placed under observation. If such a woman undergoes
an abortion, she will have to satisfy the health authorities about the reasons for this.
Women's health activists are up in arms about this, terming it a violation of fundamental
reproductive rights and access to abortion.
 Ultra-sonography and earlier, “amniocentesis”, were principally meant to detect
genetic abnormalities. Yet in India they have been deliberately and callously misused to
detect the sex of the foetus following which women seek an abortion. There would be
cases of genetic disorders followed by abortions too but as these are usually detected at a
later stage in the pregnancy, as happened to Nikita, legal abortions are not an option. One
only has to be reminded of the rate of female infanticide to realize that everything is not
simple. If one wants changes then there are certain safeguards that need to be restored so
that the flexibility that such laws provide is not misused. Another question that needs to
be addressed is that of selective-bearing. What if all parents want perfect children and,
therefore, decide to abort foetuses that have minor ailments that may not affect their life
at all? Would it be right or would it be considered akin to murder?

The Nikita Mehta case, if remembered was not all about the right to abort a foetus
past the cut-off time. It was also about the Medical Termination of Pregnancy Act 1971,
and whether changes are required in the Act or not. The Act has been around for 37 years
now. The Shantilal Shah Committee (1964) recommended liberalization of abortion law
in 1966 to reduce maternal morbidity and mortality associated with illegal abortion. On
these bases, in 1969 Medical Termination of Pregnancy Bill was introduced in Rajya
Sabha and Lok Sabha and passed by the Indian Parliament in August 1971. Medical
Termination of Pregnancy Act, 1971 was implemented from April 1972. Implemented
rules and regulations were again revised in 1975 to eliminate time consuming procedures
for the approval of the place and to make services more readily available. The Preamble
to the MTP Act, 1971, states: "An Act to provide for the termination of certain
pregnancies by registered medical practitioners and for matters connected therewith or
incidental thereto". The Preamble is very much clear in stating that the termination of
pregnancy would be permitted in certain cases. The cases in which the termination is
permitted are elaborated in the Act itself. Moreover, only a registered medical
practitioner who is defined in Sec. 2(d) of the Act as "a medical practitioner who possess
any recognized medical qualification as defined in Clause (h) of Sec.2 of the Indian
Medical Council Act, 1956 and who has such experience or training in Gynaecology and
Obstetrics as may be prescribed by rules made under this Act", is permitted to conduct
the termination of pregnancy. Also, other matters incidental thereto are further
incorporated, for example, the question of consent of termination of pregnancy, the place
where the pregnancy could be terminated, the power to make rules and regulations in this
behalf.

One is forced to wonder how an act that was made 37 years ago can keep abreast
with the current changes in the society and also the revolutionary discoveries in the field
of Medicine. The Act has been made at a time when the medical facilities in India had
been mediocre and not at par with the western society. But now in the year of 2008, India
has moved ahead and become one of the best in the medical field and has one of the best
pools of doctors and scientists. If this is the case, shouldn’t the cut-off time for
termination of pregnancy be shifted from 20 weeks to 24 to 26 weeks, as is the case with
several states in the United States of America and the United Kingdom?

Though one might say that India has liberal laws regarding abortion, one needs to
ask whether they are freely available. There are a lot of social implications to the medical
termination of pregnancy. Abortion is freely available but not utilized under the fear that
it would ruin a girl’s social standing in the society. However, in lieu of the present case,
one can only confer from the presented contentions that the Medical Termination of
Pregnancy Act, 1971 needs to be subjected to periodical reviews, so that it can be kept
updated with changes in the modern society. The MTP Act is an excellent piece of
legislation, but a complete makeover is long overdue. Changes need to be made to the
Act to make it more effective and useful.

By:

Siddharth Kumar Dub ey