Miscarriage of justice?

Earlier this month, a Mumbai housewife delivered a baby that died within hours because it had ‘anencephaly’, a serious medical condition in which the foetus has no brain and hardly any skull. The parents became aware of it in the 26th week of pregnancy and were told by doctors it would either be a miscarriage or a stillbirth or the baby would die soon after birth. How heart-breaking for the parents to know that! They were naturally shattered and disturbed and wished to terminate the pregnancy but could not do so because the law disallows termination after the 20th week.

In a similar case of 2008, another Mumbai couple had come to know (after the 20th week) that their unborn baby had a complete congenital heart blockage. According to doctors, the child would need a surgery to implant a pacemaker right after birth and further surgeries every five years to change the pacemaker. Realising that frequent surgeries and life-long cardiological care would be traumatic for the child, who would not be able to live a normal life and also that they could not afford such a specialised long-term treatment, the couple approached the Court for permission to terminate the pregnancy. The Court denied permission citing they had 'failed to establish that the child once born faced a substantial risk of severe physical or mental disability' and that the Court could not make an exception and exercise extraordinary judgment. The woman suffered a miscarriage in the 27th week of her pregnancy.

In both cases, permission to terminate the pregnancy was denied because it was beyond the legally prescribed 20 week period, although the foetus suffered from a serious physical abnormality and the baby’s chances to live a normal life were negligible.

What does the law say?:

The law referred to above is embodied in the ‘Medical Termination of Pregnancy Act, 1971’ (MTP Act), which prescribes circumstances under which a pregnancy can be legally terminated and the procedural formalities for the same. As per the MTP Act, a pregnancy between 12 and 20 weeks can be terminated by a registered medical practitioner (‘RMP’), if at least two RMPs are of the opinion that continuation of pregnancy EITHER involves risk to the woman’s life or serious harm to her physical or mental health OR there is a substantial risk that the child, when born, would suffer from physical or mental abnormalities and be seriously handicapped. Requirement of opinion by two RMPs does not apply where termination of pregnancy is immediately necessary to save a woman’s life. For termination of pregnancy under 12 weeks, opinion of only one RMP is considered adequate.

The 20 week limit was most likely decided considering risks to a pregnant woman’s life and also to curb cases of illegal or forced abortions or where the woman is kept in the dark about risks. One cannot therefore fault the Court as it had to take a decision within the provisions and limitations of the MTP Act. The Court cannot consider softer issues like emotions, mental strength or financial ability of parents to cope with a situation, etc. while delivering its verdict.

What about the parents?

The issue is not only about the 20 week limit. It is also about parents’ preparedness and ability – emotional, physical, mental and financial – to raise a child with abnormalities or serious medical conditions.

Starting a family is arguably the most joyous phase of marriage. A couple’s preparations to welcome their child commence much in advance as they start visualising the unending moments of happiness and fun which the future would hold in store for them. It also marks the phase of becoming more responsible, to be able to provide a good life to the child. All that a couple wants is a healthy child and meticulously follows the ‘DOs and DON’Ts’ to ensure the baby is fine. So imagine their shock and plight when they learn that their yet-to-be-born child suffers from some serious abnormality or medical condition! In an instant all their dreams and grand plans are shattered and they are faced with an extremely difficult and daunting challenge for the rest of their lives! Needless to say, it is easier said than done.

A child suffering from a severe abnormality or medical condition would need regular medicines and doctor’s visits; he / she would also be unable to eat, play, enjoy and live a life like any other normal kid. The child might even consider itself inferior seeing other children play and enjoy the beautiful childhood days, leading to mental trauma. The child’s education suffers, which in turn impacts the chances of being gainfully employed and becoming financially independent. The parents are often weighed down with the responsibility of providing physical, emotional and financial support to the child during their lifetimes and as regards financial support, even thereafter. Their own lives come to a grinding halt and revolve only around the well being of the child. The cumulative effect of this perpetual all-round pressure can be back-breaking and may lead even to the parent's nervous breakdown or depression. Do parents deserve to go through this ordeal for the rest of their lives because the law is not to be up to date or up to the mark, as considered by medical experts?

Amendments delayed due to conflict with other laws:

In progressive nations like the USA, UK and some other European countries, the limit ranges from 22 to even 28 weeks (as in Cyprus) which is sure to have been decided after a careful and all-round consideration of medical issues as also impact on society. It also implies that termination of pregnancy beyond 20 weeks is possible, without unduly risking the life of the mother.

The MTP Act was enacted in 1971 and has hardly undergone any significant amendment to keep pace with the times and the progress of medical science in India. An important reason for that is understood to be the close linkage of this issue with other equally critical issues like sex determination of the foetus, which is illegal under the Pre-Natal Diagnostic Techniques Act, 1994 and female foeticide, which is still prevalent due to the quest for a male child and an ‘heir’. There have been instances of female foeticide under the guise of abortions for saving the mother’s life. The amendments therefore need to be comprehensive ones to address all the three issues, and need to be done very soon.

Conclusion:

No doubt losing an unborn child is heart breaking for parents but they can overcome the grief over a period of time. But to see their child suffer every single day, unable to live a normal life and be dependent on others for every little thing can be worse and may, after a period, become unbearable. Where abnormality or serious medical condition is not detected or known before the child’s birth, the parents have no choice but to face the situation, but where it is known beforehand, the law should be amended to become flexible and humane enough to honour the parents’ wishes to terminate the pregnancy if the mother’s life is not at risk. Termination of pregnancy in such cases should entirely be the parents’ personal decision because every couple has the right to be parents to a healthy child.