Abortion Denial in India Highlights Limitations in Law

Deepali Gaur Singh

A woman carrying a fetus with high chance of deformation was denied an abortion in India. The country's response highlights the complexity of writing abortion law in a country plagued by sex-selective abortions.

A typing error — casting a fetus’s chance of being born without a significant handicap as "very fair" when the doctor intended to write "very few" – resulted in the denial of abortion services to an Indian woman named Niketa Mehta.  A week later, Niketa suffered a miscarriage, but the initial denial by the Mumbai High Court raised a storm over not just Niketa Mehta’s particular fetus and her right to abort it but also over a woman’s autonomy over her body.

The High Court ruled that her request for the termination of pregnancy due to a congenital heart condition of the fetus was akin to "mercy killing" and given the stand the judiciary has had so far on mercy killings, her plea was rejected. (Ironically, the Indian law allows what the Mumbai High Court chose to term as "mercy killing" til 20 weeks of pregnancy.) So what Niketa could have easily exercised as a personal choice a couple of weeks earlier had been denied to her.

The hospital where Niketa’s case was diagnosed gave absolutely opposite opinions of the fetus within 72 hours; this anomaly in diagnosis was quickly attributed to a typo-error. A diagnosis that the attending physician meant to read as "very few chances" the child would not be born handicapped or incapacitated was transcribed as "very fair chances" that the child would be born without a handicap. So eventually the abortion was denied on the grounds that the diagnosis by experts did not establish the certainty of a handicap. Moreover, India’s abortion laws allow for a pregnancy to be terminated after 20 weeks only if there was a fatal risk to the mother and not the fetus.

The attempt to amend the law now has been put into the hands of the legislature, as the existing laws did not permit Niketa to abort her fetus. The plaintiff had found out only in the 24th week of her pregnancy that the fetus had a congenital heart block. She was told by doctors that the child would need a pacemaker right at birth and the quality of its life would be poor.

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The health minister, who has been busy with far more contentious issues like actors smoking on screen, is of the opinion that this "one case is not enough for the health ministry to decide on an amendment on the law." The amendment would allow for abortions beyond the 20 week moratorium in cases like Niketa’s, in which medical conditions with regard to the fetus become evident only at later stages of the pregnancy.
The petitioners had also contended that their middle-class background would make it economically difficult to provide for the pace-maker every five years. With absolutely no state support for special needs children, and in a country where income disparities and unequal access to medical and health facilities are so glaringly evident there are many, including gynecologists, who are pressing for a change in the law, especially in the context of those grossly ill-informed and/or misinformed on what it entails once the child is born.

On medical grounds too, there are many who claim that the risk to the mother in case of termination of pregnancy at 25 weeks is not significantly higher than the risk at 20 weeks.

Abortion has been legal in India since 1971 under certain conditions, most of which relate to the health of the fetus and the pregnant woman and some other extraneous conditions. Abortion continues to be a very tricky issue in the Indian context of sex-selective abortions. But it is important to understand that sex-selective abortions are a phenomenon that grew more out of the ability to know the sex of your child and not from the right to legal abortion. And it is this constant attempt to mix the two arguments that finds pro-choice activists and woman’s rights organizations having to tread carefully while working to create a space for contraception, abortion and a simultaneous intolerance to sex-selective abortions. Moreover, with the knowledge of the gender of the child available through a variety of techniques and definitely by the 20 week cut off period for a legal abortion (if not earlier), the argument that such an amendment could be abused by those attempting to engineer a male heir hardly stands.

A case that is bound to swing between the spectrums of personal trauma and ethical issues, the judgment directly affects the question surrounding certain complications of the fetus that show up only in later weeks (between the 22nd to the 24th), and since abortion at this stage is illegal, medical practitioners refuse to abort the child forcing couples to turn to quacks, potentially endangering the mother even further. Using the argument that medical experts did not express any "categorical opinion that if the child is born it would suffer from serious handicaps," the court chose to dismiss the plea affecting the amendment of the medical termination of pregnancy as well. The hospital, which once was willing to give a more direct opinion to the parents-to-be, obviously was not willing to take responsibility for an opinion which is bound to change the law itself. The court went on to state that had the couple approached even before 20 weeks it would not have been possible to allow abortion, as the medical opinion was contrary; an irony indeed in a country where over 10 million fetuses–all female–have been aborted in the last two decades at the rate of 500,000 a year.

Even though the government and the judiciary may think differently, there are many in the medical fraternity who have supported this couple in their decision and the need for an amendment. Quite aware of the Pandora’s box the issue is bound to open up, the gynecologists, many of whom are members of the Federation of Obstetric and Gynaecological Societies of India (FOGSI, which is affiliated to the International Federation of Obstetricians and Gynaecologists) and have aligned behind this couple and others who might find themselves in a similar situation and believe that the time has come to change the 1971 Act. 

An argument meant to empower women and their bodily sovereignty can so easily be held hostage to emotive arguments even as the state is able to do little to stop the abuse of the same law when it comes to sex-selective abortions. While a feminist discourse on procreative liberty is as much about the right to avoid reproduction as the right to reproduce, statistics reflecting the abuse of this choice in India carry the danger of hijacking the argument and consolidating opinion among those who oppose abortion access. And even as the discourse continues a personal decision eventually became a legal battle for a woman who was unsure of the quality of life she could ensure for her child once it is born.

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