The recent reported dilemma
Haresh and Niketa Mehta had a reason to grieve. Scientific (medical) tests on Niketa showed that the child in her womb had serious congenital deformities. They did not want to bring to world a child that could have on its birth a congenital heart blockage and mal-positioned arteries. Mehtas’ doctor advised that the pregnancy could be terminated. The JJ Hospital panel which had said that the child could be born with severe incapacity made a volte face a week later to predict that the incapacitation could be a matter of ‘least chance’ (sic). The Bombay High Court said that it would not approve of the abortion. The couple was distraught and a couple of days later, a more composed Ms.Niketa was reported to have braced herself to be ready to fight the illness for the child. The Union Health Minister said that the matter required a serious debate. One more week passed. Nikita had a miscarriage. The child arrived dead and unfortunately now, the whole episode has come a full circle. The first task lies in identifying the underlying issues without getting judgmental.
When termination of pregnancy is permissible
Dr. Chandrasekar, a renowned demographer was also a clever Health Minister. He hoped to tackle the problem of population explosion through the medico-legal route. Unwanted pregnancy could be terminated legally he said, when the extant Penal law made it an offence. He piloted in the parliament the safe passage of the bill into an Act on 10th August 1971that was, the Medical Termination of Pregnancy Act 34 of 1971 ( called the MTP Act). The Act was intended to provide for the termination of certain pregnancies by registered Medical Practitioners (a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is of the opinion, formed in good faith that (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health or (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to be seriously handicapped(emphasis supplied). Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks (emphasis supplied), the opinion shall be of not less than two registered medical practitioners. The limitation of the period of gestation does not apply in a case where the termination of pregnancy is, in the opinion of a medical practitioner, who may not even have experience or training in gynaecology and obstetrics, immediately necessary to save the life of the pregnant woman. The Act lists two circumstances when there arise presumptions of anguish resulting in grave injury to the mental health to a woman on account of such unwanted pregnancy: (1) Where any pregnancy is alleged by the pregnant woman to have been caused by rape; (2) Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children.
Medical termination of pregnancy – the ethical angle
The MTP Act does not address any ethical issues, but in legal regimes that proscribe abortions, they stem from a moral stand point that medical termination of pregnancy results in causing death of a living- being. The fundamental question is what makes killing a human being wrong and then to consider whether these characteristics, whatever they might be, apply to the earliest stages of human life in the womb. Explanation that has roots in religion expounds the traditional Christian doctrines such as that all humans are made in the image of God or that all humans have an immortal soul. In India the objections to termination of medical pregnancies do not have strong religious overtones. Termination of pregnancy itself has not been a major obsession for the populous India. What we are witnessing today is the urban response to how a whole new generation of people perceives the problem.
Roe v Wade (1973) is the celebrated case that rocked the United States when the Supreme Court of USA decided, by a 7-2 majority, that an implied constitutional right to privacy, whether based on the Fourteenth Amendment's concept of personal liberty or in the Ninth Amendment's reservation of rights to the people, was sufficiently broad to encompass a woman's right to terminate her pregnancy. The court summarized its decision as follows:
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
In so doing, it delved into the history of abortion in Anglo-American criminal law and Justice Blackmun concluded that a right to abortion was consistent with that history. As early as the mid-thirteenth century the common law punished abortion after foetal formation as homicide. Foetal formation, the point at which the fetus assumed a recognizably human shape and was believed to be ensouled, was thought to occur some 40 days after conception. By the mid-seventeenth century abortion was prohibited as a "great misprision" or serious misdemeanor. By the early nineteenth-century at the latest the common law appears to have prohibited abortion only after "quickening." Quickening, which occurs between the 12th and the 20th week of pregnancy, is the point at which the mother first perceives fetal movement. The later common law may have chosen this point because it was the point at which unborn life was believed to begin or because it was the point at which it could be legally proved to have begun. It is this period that the Indian law recognizes. In the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the majority of the Supreme Court, led by Justices Souter, Kennedy and O'Connor, retained and reaffirmed the central holding in Roe but said that the Pennsylvania law that required notification of abortion to the husband to be invalid.
Legitimacy of abortion, elsewhere
The problem is not confined to the United States and extends to other Anglo-American jurisdictions where there is a legal right to an abortion. Canada is a prime example. In 1988, the Supreme Court of Canada affirmed a woman's right to abortion and struck down, as unconstitutional, provisions in the Criminal Code that regulated abortion. British law makes no distinction between abortions performed at any stage up to 24 weeks. Current German laws permit abortion after mandatory counseling and a three day waiting period. This scheme was a political compromise necessitated by the re-unification of Germany. Rather than criminalizing abortion, German law focuses on counseling, employment security, social welfare and financial support to persuade pregnant women to give birth to their children. In this way, German law successfully achieves some degree of protection for the unborn by obtaining voluntary recognition of personal responsibility and respect for the personhood of the unborn.
Medical termination of pregnancy of children in womb with defects
The most critical decisions are the ones when the child in the womb is diagnosed to have some mental or physical deformities when the mother decides to terminate the pregnancy. Not only can we then ask ourselves: Do we want a child? But with genetic information we can ask ourselves: Do we want this particular child? This reframes the nature of the parenting relationship, making our parenting conditional upon the child meeting certain criteria. The issue now swings from health concerns to avoiding disability. Within this understanding of disability, genetic technology then becomes a tool not for promoting community health but a mechanism of social control for avoiding the appearance of difference. Even apart from the point of view of health and avoidance of disability, modern notions of individual liberty of pregnant woman who believe that apart from them, no one else will have a right to decide about what she wishes to do with the foetus. In today's society, some pregnant women deny the biological fact that they are mothers until their baby is born. Late term abortion is justified as a form of self-defense to get rid of involuntary servitude and a form of slavery caused by pregnancy. Look at also the other end of the spectrum of a point of view that regards instances of partial-birth abortion performed on fetuses with chromosomal abnormalities under the guise of reducing suffering as threatening the best interests of the mother and infant. It suggests that an alternative for parents faced with the decision to terminate their pregnancy is perinatal hospice. Perinatal hospice recognizes the value of bringing these infants to term by treating them as beings conceived with a tangible future. This alternative is preferred because of post-termination psychological distress and because biblical teachings emphasize the dignity and worth of each foetus.
The Indian reality in the debate
Abortion in India does not always take the legal route. Native medicines and quacks control this practice to a large extent. Unwanted pregnancy is silently endured till the denouement is registered in the shape of dumping the child in the garbage bins or at the place of birth itself. If this scenario is perceived as a crude generalization, we need to be concerned about even a miniscule population that wants the legal route. We have to gradually pull the rest of the population into the vortex of such frame of thinking by placing confidence in the opinion of medical experts, with courts acting as ultimate arbiters. Does making possible the period of termination of pregnancy from 20 weeks to 24 weeks solve the problem? The traditional Hindu law has always recognized the child in the womb as a legal entity and even assigns to it a right to impeach a sale of ancestral property as invalid on its birth, on sufficient legal grounds. Abandon any religious view, if you like. Do we still have a homogenous answer? The answers depend on where you place the primacy for decision making. Should the mother decide because, she bears the child and the ‘patient autonomy’ is paramount? Should the doctor decide because she knows best about is safe for the pregnant woman? Does the science (that includes curative medicines) and technology (that includes all diagnostic tools) decide what is appropriate, because it gives you evidence of whether the foetus is ‘normal’ and if born, could be cured of deformity? Does religious calling lead you to belief that in His act of creation, the status of child with or without disability and the choice of person to parent such a child, there are certain divine dispensations that a human mind cannot fathom and hence one must accept any child as gift from God? Should the Court have the last word, as it is always the final arbiter of all matters that are contentious? Is there anything like a correct view point? Proving the merit of your point of view constitutes the debate.