Nothing surpasses the greatness of dignity in a human life, but what if a new born is subjected to a life of hardship due to severe deformity which was pre-natally diagnosed? Shall it not be violative of the principle of ‘sanctity of life’ if a severely deformed foetus is forced to live a life of absolute hardship and dependence?
An abortion is the removal or expulsion of an embryo or foetus from the uterus, resulting in, or caused by, its death. Abortion can refer to an induced procedure at any point during human pregnancy; it is sometimes medically defined as either miscarriage or induced termination before the point of viability.
India was a pioneer in legalizing induced abortion, with the passing of Medical Termination of Pregnancy (MTP) Act in 1971. Yet, after three decades abortion is mostly interpreted with ethical, moral, religious connotations rather than a logical health-seeking behaviour. The Medical Termination of Pregnancy (MTP) Act, 1971, stipulates that if certain conditions are fulfilled, an abortion can lawfully be done. Before this law came into existence, the Indian Penal Code (Act No 45 of 1860) permitted abortion only when it was necessary for saving the life of the mother. A woman can exercise her right in this regard depending on certain conditions: proof of risk to her life or grave injury to her physical or mental health, substantial risk of physical or mental abnormalities to the child if born and a situation where abortion could only save her life, all to be arrived at by the medical practitioners.
Section 3 of the MTP Act states that pregnancy can be terminated if:
-Therapeutic indication: in order to prevent injury to the physical or mental health of the woman.
-Eugenic indication: in view of the substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to seriously handicap.
-Humanitarian indication: as the pregnancy is alleged by a pregnant woman to have been caused by rape.
- Social indication: as the pregnancy has occurred as result of failure of any contraceptive device or method used by married woman or her husband for the purpose of limiting the number of children.
- The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman
- The termination of pregnancy is to be carried out in a government hospital or at a place approved by the government and two medical practitioners are necessary if the pregnancy is more than 12 weeks but less than 20 weeks duration; for less than 12 weeks one medical practitioner can terminate it.
- The consent of woman alone is required if she above 18 year of age, but if she is a minor or lunatic, consent of the guardian is necessary.
Section 5 MTP Act states that, ”The Act allows abortion on the grounds mentioned in Section 3 of the Act. This section permits abortion only until the 20th week of pregnancy. Beyond the said limit abortion is permissible only when termination of pregnancy is immediately necessary to save the life of the pregnant woman.”
Section 312 of the Indian Penal Code read with the Medical termination of Pregnancy act, 1971 where all the restrictions imposed therein, including the time limit of 20 weeks, other than the ones to ensure good medical conditions, infringe the right to abortion and the right to health, which emanate from right to life as guaranteed by Article 21 of the Constitution.
The area I would like to highlight is Section 3(2)(ii) and Section 5. According to this provision, termination of pregnancy on foetal abnormality is permitted only until the 20th week. Thereafter, even if the foetus is detected with a foetal abnormality termination of pregnancy will not be legal unless it is necessary to save the woman’s life.
In the Objects and reasons of the MTPA, the legislature has recognized eugenic grounds as one of the grounds of termination of pregnancy. But again, the impugned provisions fail to satisfy the same by restricting the time limit to 20 weeks.
The legislature has not prohibited use of diagnostic techniques to discover foetal disabilities. Scientific reports have suggested that some deformities in the foetus can be only detected in the very late stage of pregnancy and thus abortions should be allowed even after the 24th week of pregnancy. The IPC was enacted more than a century ago and the MTPA, in 1971. Foetal abnormality was considered a reason to abort in the 1971 Act but little was available then in terms of prenatal diagnosis. All techniques of prenatal diagnosis including triple TEST, ultrasounds, chromosomal and DNA analysis and tests for foetal infections came much later. These are complicated and expensive tests and take weeks. In many cases, the pregnancy crosses 20 weeks by the time a diagnosis is confirmed. The limited access to health care further delays diagnosis in India.
A case which came up on this issue in 2008, the Bombay High Court refused permission to abort a 26-week foetus with a serious heart defect after rejecting the mother’s plea to terminate the pregnancy. Niketa and Haresh Mehta along with their doctor Nikhil Datar approached the court for medical termination of pregnancy after physicians had diagnosed the unborn child with a congenital heart disorder. The petitioner was informed of this congenital heart block in the 24th week of her pregnancy. As per the decades old abortion control laws, a pregnancy can be terminated after 20 weeks only if there was a fatal risk to the mother and not the foetus. But a division later observed that they could not alter the provision.
Eugenic grounds for abortion is provided by the act as a valid ground of abortion under section 3 of the act but the factum of the stipulated time period can absolutely and non-judiciously defeat the very purpose of legislative efforts such as the pre-natal diagnostic technologies act. The aim of prenatal diagnosis is to prevent the birth of an abnormal child. The whole science of prenatal diagnosis is meaningless if abortion is not allowed even when gross abnormality is confirmed. In the light of the advancement in medical technology and logical reasoning that in case of a pregnancy where a foetus is diagnosed with severe prenatal abnormalities and deformity, the courts should allow the pregnancy to be terminated even beyond the 20 week limit imposed by the MTP Act. It can be said that in regard to prenatal diagnosis of severe deformity, the 20 week limit on termination of pregnancy is unconstitutional.
Mini Chowdhary, student of Calcutta University, Department of Law, Hazra Campus, Kolkata.
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]