A Legal Mismatch

September 17, 2018 0 By CH Unnikrishnan


Gynaecs are left high and dry as the ethical debate on whether to allow  the termination of high-risk pregnancies post 20 weeks continues to rage

As per the Medical Termination of Pregnancy (MTP) Act, 1971, abortion is illegal after the 20th week of gestation, but allowed in exceptional cases to immediately save the life of the mother. In 2008, Nikita Mehta was in her 23rd week of pregnancy when her foetus was diagnosed with a congenital heart anomaly. In an attempt to obtain permission for abortion as a special case, Dr. Nikhil Datar, her gynaecologist, approached the Mumbai High Court requesting for permission to abort Nikita’s then 26-week old foetus. The Mumbai High Court did not grant this permission, sticking to the laws set in 1971. While Nikita had a miscarriage, the ethical dilemma of aborting a foetus post 20 weeks, or allowing a child with congenital anomalies to be born, continues to rage.

Nikita’s may have been the first case to be contested in the courts. However, there are many such cases when abortion may be needed, either for a minor rape victim who may not even be eligible to be a mother, or to protect the child from a life-long abnormality. Many of these abnormalities are now commonly detected between 20 and 24 weeks, which is too late for legal abortion. While the law was set at a time when there were no ultrasounds, genetic testing, or any other means to determine whether the child will be born abnormal, today, with the technology having progressed by leaps and bounds, isn’t it time to modify the 20-week cap?

Why 20 weeks, you may ask? Is it because there is an increased risk to the mother’s life beyond 20 weeks? This isn’t true as reports from the Royal College of Obstetrics and Gynaecology (RCOG) show that the risk to the mother’s life remains the same whether at late termination of pregnancy or at delivery. Countries such as the UK have laws that allow abortion up to 24 weeks. However, RCOG reports that ‘abortion must not result in the birth of a living child’ as the subsequent death of the child would be considered as murder. As the gestation period increases, so does the probability of a child being born alive at abortion. In other countries, intrauterine foeticide is generally used in cases of abortion post 24 weeks to avoid live births. The main ethical concern, that of the right to live for the child, remains. Does the mother, or even the law have the right to terminate this life?

Of major interest to gynaecologists and the Indian population overall was the breakthrough judgement in 2016, when Supreme Court allowed a rape victim to abort her 24-week-old foetus that was diagnosed as having anencephaly. Since this first case, there have been 33 cases that have received High Court permission for abortion post 20 weeks. These cases include child rape victims or women with severe foetal abnormalities; the most recent one being granted at 31 weeks to a 13-year-old rape survivor.

Several of these cases are being handled by Dr. Nikhil Datar, who is extremely passionate about this cause. “How can you disallow a woman her right? Currently there is a complete mismatch. While diagnostics have significantly improved over the years, therapeutics have not improved, and the law has not changed at all since 1971. You can now diagnose a disorder, but there is no treatment, and unfortunately no termination is allowed either. Such a mismatch in progress increases the anxiety levels for pregnant woman. A screening test stating a 1:50 chance of Downs syndrome is enough for the mother to want to abort the foetus early on without waiting for a confirmatory diagnosis lest it be too late to abort later. This results in many terminations of even normal babies simply because of an absurd, arbitrary law set at a time when no such diagnoses were possible”.

He undertakes such cases pro-bono with the help of the Human Rights Law Network (HRLN) and other specialist doctors who can provide a detailed medical report explaining the abnormality and the reasons why abortion should be granted. Advocate Colin Gonsalves and Advocate Sneha Mukherjee of HRLN have been instrumental in getting these cases to court in a timely manner.

“I believe that when the law came into force in 1971, the 20 week limit must have seemed reasonable depending upon the medical advancements made by then. However, we are in 2018 and with the medical advance today, it is possible to do a medical termination at any stage during the pregnancy. The Shantilal Shah Committee report, based on which the Act was drafted, emphasized the unnecessary waste of a mother’s health and life because of a restrictive law and we believe that 50 years later, we argue our cause on the same ground. The right of the woman to her agency, her body and the right to choose to live with dignity and personal integrity is unconditional,” says Advocate Sneha, emphasising that the laws need to be changed as it is safe to perform
abortions with the medical advancements of today.

The Courts are also increasingly sympathetic to the plight of these women and are taking immediate action involving a local government hospital for a second opinion. Within 72 hours, an independent report is sent to the court and if the abnormality is confirmed, permission is granted. The entire process takes about 8 days, which is extremely timely for law cases.

While the law courts need to be approached for every case that exceeds 20 weeks of gestation, there is a means of obtaining permission for abortion in exceptional cases where the foetus is diagnosed with a congenital abnormality or in case of child rape victims. However, these women must go through the cumbersome process to request permission to medically terminate their pregnancies. The medico-legal issues involved in the process led the Ministry of Health to a draft an amendment to the MTP Act in 2014. The amendment provided for abortions up to 24 weeks under special circumstances, such as risk to the life or mental status of the mother or child and in cases of rape. However, this amendment bill has been pending with the Parliament for the last five years, while the quest for justice for these pregnant women continues.