FLAT 20% OFF and 3-Months ADDED Validity on All Courses Absolutely FREE! Enroll Now Use Code: INDIA20
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

While generating a lot of sympathy for the petitioning couple, the decision of the Bombay High Court to disallow Niketa and Haresh Mehta to abort their 25-week unborn child has sparked off a near unanimous demand for reviewing the 37-year old Medical Termination of Pregnancies Act.

Even if the government agrees to amend the law it is unlikely to be done till well after the next Parliamentary poll. That may mean anything from six months to one year at the very least. The Mehtas had approached the court because the MTPA law does not allow foetus to be aborted after 20 weeks and Niketa Mehta was pregnant for 25 weeks when the court dismissed the couple's petition. Their unborn child has been diagnosed as suffering from a congenital heart block. It means that after birth the child has to be fitted with a pacemaker.

The device, costing about Rs one lakh, will have to be replaced periodically and yet there is no guarantee that it will prolong the child's life.

The court has gone strictly by the letter of the law in turning down Mehtas plea. Also because, morally parents have no right to take the life of their unborn child- a foetus after 20 weeks is categorised as an unborn child. Besides, the Mehtas or their doctors could not furnish any guarantee that aborting the foetus at this late stage will eliminate the risk to the life of Niketa Mehta.

That may be a good point to argue but in the case of the Mehtas the bundle of joy the birth of a child gives will be missing, overshadowed by the near surety of the fatal nature of their child's disease. There is every chance that the Mehtas will live under greater stress after the 'delivery', haunted by the fear of 'imminent' loss of the child's life.

The Mehtas may or may not be able to bear the cost of bringing up a disabled child. But their task would certainly not be easy in a society where government or public support to bring up a special child is minimal or almost non-existent. A lot of people have noted that the Mehtas, if they wanted, could well have avoided the disappointment they faced as a result of the court decision by simply doing what a lot of Indians do-go to a private clinic for a clandestine, illegal abortion. Thanks to the average Indian's cherished desire to have a male child and the pprejudices against girl child nearly 80,000 female foetuses are aborted in the country every year. The number could well be higher. This illegal activity has been increasing despite all the laws against it.

It is clearly another example of how inefficient our law enforcement agencies are, though the anti-abortion law has been in existence in the country for over a century. Abusing a well-meaning law has been an unfortunate fact in India and it cannot be denied that a more 'liberal' abortion law can increase the possibility of its abuse. Misuse of any law becomes easier with the help and cooperation of the society. Consider for instance, why our society looks the other way when the sex determination tests are carried out and female foetuses are aborted often in most unhygienic circumstances. Many if not most of these abortions are believed to take place in clinics that also carry out sex determination tests-another illegal activity.

We cannot check the scourge unless the professional bodies like the medical council of India tighten their regulations and specify stringent measures against the 'erring' doctors.

The Mehtas showed rare moral courage by refusing to take the illegal path. Probably, the couple had thought that by bringing their case before a court the government would be forced to take a fresh look at a law that should have been, many think, revised a decade ago. The MTPA law was enacted in 1971 when the family planning drive in the country was at its peak and terminating pregnancies was supposed to be one of the approved methods for restricting the size of families. It is doubtful if the main idea behind the act was the health of the mother or the unborn child. More so since the facility for pre-natal diagnosis was not available in the country at the time.

Since then a lot of things have happened. For one, the element of force in the country's family planning programmes has been taken away. The medical world has made a lot of progress in pre-natal diagnosis. Facilities like ultrasound, chromosomal and DNA analysis, and detection of foetal infections are now available across the country.

Any how, the 20-week outer limit for legal abortion needs to be extended by at least another four or five weeks, many feel. A firm diagnosis of the infirmity in the foetus is essential before the parent can even think of abortion. But these tests that diagnose serious ailments in the unborn child, take time to be completed. More over, some tests begin around the 20th week of the pregnancy to achieve a more certain result; by then, parents will find that they do not have the option to go for abortion--legally.

The debate on the outer limit for abortion may have started only now in India but it has been raging in the West for some time now, especially in countries where Catholic influence is strong. The Protestant-dominated United Kingdom had allowed abortion up to the 28th week of pregnancy before it was brought down to 24, the stage of third trimester, in the 1990s.

In May this year the opposition Conservative party had made an unsuccessful bid to lower it to 22 weeks. Holland has set a 24-week limit while Canada has not set any limit. The restrictions placed by abortion laws in Western countries have often brought to the fore cases that found sections of public opinion going against the spirit of the law. Last year a 17-year old pregnant girl from Catholic Ireland had to be flown to Britain when it was diagnosed that the foetus would not survive beyond a few days after birth. The case of an 11-year-old Romanian girl, allegedly raped by her 19-year-old uncle, had drawn worldwide attention because laws in the country did not allow abortion and she had to be flown to the UK.

In these cases it was possible for the pregnant woman to go to another country for the abortion, an option very difficult for even a rich Indian to exercise. Amending the law might make life less stressful for many like the Mehtas, who have reposed their faith in the majesty of the law of the land.

Atul Cowshish, -Syndicate Features

"Loved reading this piece by Prakash Yedhula?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"

Tags :

Category Family Law, Other Articles by - Prakash Yedhula 


Post a Suggestion for LCI Team
Post a Legal Query