A tricky debate on abortion
It might be more prudent to look at counselling instead of rushing through a law liberalising abortion.
Recently, in a case before the Supreme Court, a woman successfully obtained direction for medical termination of pregnancy (abortion) after 24 weeks on a plea that she was raped by her boyfriend on the false promise of marriage. In another case, the Delhi High Court intervened directing medical examination for fitness for abortion responding to the poignant tale of a 16-year-old kidnapped by unknown persons, sexually abused by them for two years, and finally found abandoned near the Delhi University campus. The orders in both cases were beyond the permissible period in the Medical Termination of Pregnancy Act (MTP Act). There is an outcry for change in law for easy availability of the option to abort without court intervention. Does it discard patient autonomy and impose unnecessary restrictions? Can a woman have the right to seek abortion at any time she pleases? Should the state have a say in an intimate matter of what a woman wants to do with the foetus?
Abortion is an exception
In India, the transition from a regime of proscription against abortion by treating it as a criminal offence liable for punishment under the Indian Penal Code (IPC) to legitimising the practice as a health and family planning measure through the enactment of the MTP Act of 1971 had been fairly easy, unlike in the West, where the movement towards legalising abortion has been tumultuous involving major heated public debates.
In India, the transition from a regime of proscription against abortion by treating it as a criminal offence liable for punishment under the Indian Penal Code (IPC) to legitimising the practice as a health and family planning measure through the enactment of the MTP Act of 1971 had been fairly easy, unlike in the West, where the movement towards legalising abortion has been tumultuous involving major heated public debates.
K. Kannan
According to the IPC the offence falls under ‘Offences Affecting the Human Body’, and provides that causing a miscarriage with or without consent for a purpose other than saving the life of the woman is punishable. The MTP Act makes for a quantum difference in approach, as if by a legislative sleight through a non-obstante clause, by decriminalising abortion without bringing an amendment to the IPC or abrogating the penal provisions. The MTP Act sets some limitations regarding the circumstances when abortion is permissible, the persons who are competent to perform the procedure, and the place where it could be performed. Outside the ring of protection that the Act draws, the IPC still operates.
It is common knowledge that abortion is possible within 12 weeks at the option of the pregnant woman and within an extended period of 20 weeks with the permission of a Medical Board consisting of not less than two persons. In both cases, the freedom of choice of a woman is limited to a situation when (i) continuance of the pregnancy would involve a risk to the life of the pregnant woman, or of grave injury to physical or mental health that includes rape; or (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. But the latter limitation does not apply to the termination of pregnancy by a registered medical practitioner in case he is of the opinion, formed in good faith, that it is immediately necessary to save the life of the pregnant woman. Most foetal abnormalities are said to be capable of being detected around 20 weeks and a law that allows for abortion in the second situation mentioned above therefore caps the limit to that period. There are strong ethical objections to the idea of abortion per se as well as to aborting a child with disability.
The MTP Act does not address any ethical issues, but in legal regimes that do not allow abortions, the moral standpoint is that medical termination of pregnancy results in the death of a living being. The fundamental question is: what makes killing a human being wrong? We may then consider whether these characteristics, whatever they might be, apply to the earliest stages of human life in the womb. Explanations that have roots in religion include 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 Roe v. Wade (1973), the U.S. Supreme Court 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 — but it again set limitation for States to declare the outer limit to carry out the procedure.
Issue of avoiding disability
The more critical decisions are the ones where the child in the womb is diagnosed to have some mental or physical deformities and the mother decides to terminate the pregnancy. Not only can we then ask ourselves if 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.
The more critical decisions are the ones where the child in the womb is diagnosed to have some mental or physical deformities and the mother decides to terminate the pregnancy. Not only can we then ask ourselves if 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.
Apart from the point of view of health and avoidance of disability, with modern notions of individual liberty, many a pregnant woman believes that apart from her, 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-defence to get rid of involuntary servitude and a form of slavery caused by pregnancy. Instances of partial-birth abortion performed on foetuses with chromosomal abnormalities, performed under the guise of reducing suffering, threaten the best interests of the mother and infant. The Supreme Court courted the issue in Suchita Srivastava v. Chandigarh Administration (2009) as an issue of eugenics, while declining to accede to the state’s request for abortion for a 20-year-old inmate of a state-run protection home who was a rape victim and was mentally retarded, having a mental maturity of a nine-year-old. The court reminded: “Empirical studies have conclusively disproved the eugenics theory that mental defects are likely to be passed on to the next generation.”
It is also suggested that an alternative for parents faced with the decision to terminate their pregnancy is a perinatal hospice. A perinatal hospice recognises 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 emphasise the dignity and worth of each foetus.
If the pregnant woman has not attained the age of 18, or if she is a lunatic, the statute allows a surrogate decision to be taken by the guardian. This was found to be not inviolable by the Madras High Court in V. Krishnan v. G. Rajan alias Madipu Rajan and The Inspector of Police (Law and Order (1993) when a Division Bench of the Madras High Court considered the case of a minor girl who married an adult man without her family’s consent and got pregnant. Her father approached the High Court for permission to abort, and the High Court ruled after eliciting the desire of the pregnant girl that she was capable of understanding the world as well as the consequences of the pregnancy. The court said that if termination of pregnancy was to be ordered against the girl’s will, it would harm her mental health and might also affect her physical health. The court asserted that it was her fundamental right to have a child having become pregnant. Suchita Srivastava, referred to above, was another instance where a mentally retarded woman who was a victim of rape and who bore a child of the watchman who mis-guarded the safety of a hapless resident of a protection home was permitted to retain the foetus against the petition from the state for termination of pregnancy.
A search for the middle path
Perhaps the right of a woman to choose what to do with the foetus has to be balanced with the right of the foetus to survive. It is only that a foetus does not have the ability to exercise an option while the person who carries it does. There could be no two opinions that a victim of rape shall be allowed the choice to abort. But why should the choice be made at a time when the foetus is viable and termination of pregnancy carried out at a belated stage could imperil the safety of the mother and the life of the foetus? In the V. Krishnan case, elopement against parental wishes, framing a case of rape against the man in whose company the minor girl was, and the petitioner’s eagerness to subject his daughter to abortion against her will were the harsh realities.
Perhaps the right of a woman to choose what to do with the foetus has to be balanced with the right of the foetus to survive. It is only that a foetus does not have the ability to exercise an option while the person who carries it does. There could be no two opinions that a victim of rape shall be allowed the choice to abort. But why should the choice be made at a time when the foetus is viable and termination of pregnancy carried out at a belated stage could imperil the safety of the mother and the life of the foetus? In the V. Krishnan case, elopement against parental wishes, framing a case of rape against the man in whose company the minor girl was, and the petitioner’s eagerness to subject his daughter to abortion against her will were the harsh realities.
Again, why should a child born with disability be eliminated without devising an inclusive approach of dignity to even a child with disabilities? In Germany, the law permits abortion after mandatory counselling and a three-day waiting period. Rather than criminalising abortion, German law focusses on counselling, 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. Shall we give greater emphasis to counselling instead of rushing through a law liberalising abortion?
Justice K. Kannan is a former judge of the Punjab and Haryana High Court and presently Chairman of the Railway Claims Tribunal, Delhi.
Keywords: Medical Termination of Pregnancy (MTP) Act, abortions, Federation of Obstetric and Gynaecological Societies of India, Medical Termination of Pregnancy Act 1971, rape survivor
Source: The Hindu, 3-08-2016
