‘Give pro-choice a grace period’

Over a week ago, a 37-year-old woman from Alibaug approached the Supreme Court for the right to terminate her pregnancy. The 26-week foetus was diagnosed with Down syndrome. The 1971 dated Medical Termination of Pregnancy (MTP) Act disallows abortions beyond 20 weeks of foetal growth. The court turned down her plea. The pregnancy, the judges noted in the order, did not pose a physical risk to the mother. The medical report only suggested the likelihood of physical and mental challenges for the baby.

“The medical report clearly does not, and possibly cannot, observe that this particular foetus will have severe physical and mental challenges,” the order said. “We have a life in our hands,” the judges reportedly observed.

This was a low moment for Mumbai-based obstetrician Nikhil Datar and senior advocate Colin Gonsalves, who have represented a few similarly distressed women at the apex court. “Things have come full circle,” says Datar, medical director of Cloudnine Hospital, on the phone from Mumbai. A doctor equipped with a law degree, he is the principal litigant in a special leave petition filed in the SC in 2008 that challenged the MTP Act, particularly the 20-week cap. His co-litigant is Niketa Mehta, whose petition in the Bombay High Court to abort a foetus with abnormalities had stirred a debate over the prescribed time limit. She lost the case, but had a miscarriage a few weeks later. “It was not the court or doctors, nature decided the course,” Datar says.

However, since June 2016, the apex court has heard three cases in which it allowed the women to terminate foetuses more than 20 weeks old. In two of the cases, including one that was heard last month, the foetuses had anencephaly, a congenital condition marked by the absence of parts of the brain and skull. In February, the SC allowed a pregnant woman to abort the 24-week foetus as it was without kidneys. The law allows termination beyond 20 weeks only if the woman’s life is in danger, or the foetus is at risk of developing serious disabilities owing to physical or mental abnormalities.

After these legal successes, the latest order in the Alibaug woman’s case has reignited the debate around the time limit under the MTP Act. Datar says the verdict came as a “shock” to the woman. The petitioner had suffered miscarriages previously and was aware of her narrowing chances at being pregnant again, he adds. The 20-week cap robs her of the time needed to make an informed choice, he argues.

The commonly-used triple test to detect conditions such as Down is usually performed between the 14th and 20th week of pregnancy. A result showing high risk is followed by amniocentesis, the expensive confirmatory test. The results typically take 15-20 days, thereby giving the woman little time to decide ahead of the 20-week limit.

“In the Alibaug case, a family member who is a paramedical staff had acquainted her with the difficulties of raising a mentally challenged child. She interacted with the children at a special school near her home. She knew this might be her last chance, yet she didn’t want to continue the pregnancy,” says Datar.

He is all too aware of the painful gap between modern medicine and current law. His hopes are pinned on the draft bill of 2014 seeking to raise the time limit for abortions to 24 weeks. “If the draft bill had been passed, such cases wouldn’t have come to court. The 24-week limit is ethically, logically and legally the best midway to adopt,” he says.

When the apex court turned down the woman’s plea, it cited the “life” that was at stake. “The right to life of the foetus is well-established in international law,” says Gonsalves, who represented the woman in SC. “The foetus has no right apart from the mother,” he adds.

Datar concurs. “A person in utero can, at best, be considered a deemed person. The question of the foetus’s life is not considered in most countries until it is born alive on earth,” he adds. Both believe that the focus on the right of the foetus will turn the narrative upside down. “It will make all abortions illegal,” Gonsalves argues. Sonography detects sign of life — heartbeat — as early as seven weeks, Datar says in his turn. “The unborn foetus then has the right to life from that time.” The Centre for Reproductive Rights website cites a little over half-a-dozen countries which have adopted legal frameworks to protect “life before birth”.

Datar has frequently seen women make uninformed choices under the pressure of the arbitrary 20-week deadline. A well-educated woman recently requested an abortion after a test showed the baby had a 1/30 chance of being born with Down.

“I counselled her to wait for the confirmation report, to focus on the 29 out of 30 chances of having a healthy baby. If the report confirmed abnormality, I promised to help her fight the case in court. The confirmation report, however, did not show abnormality and a healthy baby girl was born,” he says.

The SC’s recent order will force more women to go underground, Gonsalves says. Pointing out that 13 per cent of all maternal deaths worldwide is from unsafe abortions, he raises the larger question of women’s rights. “You take away the woman’s right over her own body, force her to go underground and she dies. Is that alright?” There is also the question of responsibility, he says. While the State gives itself the power to deny a woman the right to abort a foetus, it does not have any mechanism to support her in the birth and care of the child.

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