Sangeeta (not her real name) was 26 weeks pregnant when she underwent her first sonography. The result was enough to rip apart this young seamstress’s newfound joy. Her baby was diagnosed with anencephaly, which causes babies to be born without parts of the brain and scalp, leading to death.
She was advised an abortion. But her gynaecologist had his hands tied by a 43-year-old law that governs both pregnancy and abortion.
So, like many other pregnant women bound by law, Sangeeta trudged along with a difficult pregnancy, only to see her severely deformed baby breathe a few precious moments.
Earlier this month, Sangeeta was represented in the Supreme Court by the non government organisation, Human Rights Law Network (HRLN), which challenged the constitutional validity of sections of the Medical Termination of Pregnancy Act, 1971, or the MTP Act, under which women are barred from undergoing abortions over 20 weeks into pregnancy — unless their own lives are endangered by the pregnancy.
On August 5, HRLN’s petition was accepted by the bench of justices Ranjan Gogoi and M.Y. Eqbal. In April, the court had asked the Centre and the Maharashtra government to respond to the petition, which challenges a Bombay High Court order upholding the law.
Four years ago, Niketa Mehta, whose foetus was diagnosed with a congenital heart condition that was believed to cause a serious debilitation in the baby after birth, was refused permission by the Bombay High Court to terminate her pregnancy under the law because the foetus had spent over 20 weeks in the womb.
Not long after the strenuous court battle, Mehta is said to have miscarried in her 27th week of pregnancy.
“It is safe to abort at any time of the pregnancy,” says Dr Nikhil Datar, who had appealed to the court on behalf of Mehta. “It is women themselves who would opt for an abortion if the scan picked up malformations. None of these decisions is to be taken by the doctor, but by the women — most of whom come for their first scan in the fifth or sixth month of pregnancy.”
If doctors refuse them an abortion, as many do, women usually go to a quack, endangering their lives, Dr Datar points out.
Dr Datar believes that women should be allowed to take a decision on aborting a foetus when they wish to. “Why should it (abortion) be restricted to a serious handicap,” he asks. Earlier, late abortions could pose a threat to the life of the mother. But that, Dr Datar holds, is no longer true.
“Today abortions are no longer done in the manner they were done in 1971, when the MTP Act was enacted, but actually mimic a pregnancy,” he says. The procedure is called a hysterotomy and is similar to a Caesarean operation.
But not everybody in the medical fraternity is in favour of allowing late abortions. “Twenty-eight weeks is not a good idea except in case of severe malformations in the foetus’ vital organs,” says Dr Suchitra Pandit, president of the Federation of Obstetricians and Gynaecologists of India, which recently urged the government to extend the abortion limit to 24 weeks.
Dr Pandit points out that the “right time” to detect foetal anomalies is between the 20th and the 22nd weeks, by which time the heart and lungs are formed. “Usually, an anomaly scan is done in the 19th week of pregnancy, and by the time the woman comes to us with her reports it is already the 20th or the 21st week.”
According to HRLN, 2-3 per cent of the 26 million babies born in the country every year have severe abnormalities. These abnormalities can be detected with the help of new technology — but usually after 20 weeks.
Dr Datar argues that the health of the baby — and not just the mother — should be kept in mind. “If a pregnancy poses a threat to the life of the mother, doctors would anyway do an abortion even in the 26th week. So why not if the baby’s life is at threat,” he asks.
In an emergency, the MTP Act does allow a gynaecologist to abort in order to save the life of a pregnant woman, even if she is over 20 weeks pregnant, and without the consent of a second doctor.
However, a few lessons could be learnt from Britain, which lent us its jurisprudence, but has witnessed a reverse trend in terms of abortions. In 1990, its Abortion Act, 1967, was amended to reduce the limit from 28 weeks to 24 weeks; and in more recent times it has resisted attempts to be further lowered to 22 weeks. But unlike the MTP Act, this does permit an abortion post 24 weeks if the pregnancy poses a grave risk to the life of a woman, and if there is evidence of a severe foetal abnormality.
But the debate on abortion in India — like in many parts of the West — often throws up questions on the right of the foetus. Like so many gynaecologists for whom abortion is an occupational hazard, Dr Pandit has often experienced conscience pangs at seeing aborted babies born gasping for breath. “As a doctor, it’s miserable to watch this,” she says. “You feel terrible. But while one respects the rights of a foetus, the mother, too, has her rights.”
Dr Datar presents a rather dispassionate view. “I’d feel more sick seeing a woman who didn’t want to continue with a pregnancy but was stopped by the law.”
But while the argument swings between the two positions, a fundamental question begs an answer. Are we becoming intolerant to anything less than perfect?
Colin Gonsalves, who argued the case for the HRLN in the Supreme Court, disagrees. “We’ve become intolerant to women exercising their choice,” he says. “Who are we to judge?” he asks, while acknowledging that this choice could be influenced by the woman’s family.
All said and done, “it’s the woman’s wishes that have to be respected,” Dr Datar stresses. “If she happily wants to continue with such a pregnancy, there would be no question of a doctor talking about an abortion.”
It’s a pill not everybody can swallow. “When you enter the zone of parenthood, you have to be prepared for the possibility of a child with deformities, either at birth or after,” says Sangeeta Punekar, a child rights activist in Mumbai. “But when we ourselves are not perfect, how could we expect our children to be born so?”