Abortion in India

en.wikipedia.org/wiki/Abortion_in_India

Abortion in India has been legal since 1971 and there are about 11 million abortions
performed per year. Legalizing abortion has not ensured its accessibility to the poor
nor been an effective method for curtailing population growth. Legal abortion was
introduced in 1971, when concern about burgeoning population growth became an
issue for India. Although abortion is legal, it is estimated that four million Indian
women a year still resort to illegal abortions because of social taboos, misconceptions
about the law, and the lack of skilled practitioners and medical facilities.

Giving or taking prenatal tests solely to determine the sex of the fetus is being
criminalized by the Indian parliament. Female children are still widely considered
to be a social and financial liability in a country where the dowry system is still a
part of marriage. The prenatal tests have been used to detect female fetuses, which are
then aborted. Under Indian law, ending a pregnancy only because a fetus is female has
already been outlawed, although the practice is common. Poor women who cannot
afford the cost of either prenatal testing or abortion often resort to female infanticide.

Abortion became legal in India in 1971 in order to prevent overpopulation. However,

this appears to have been unsuccessful as India now has 1.1 billion people and is the
second most populus country in the world, after China. In 1994, under pressure from
a coalition of activists, the Indian government changed course, outlawing the use of
ultrasound machines to reveal fetus gender. In 2002, the penalties were stiffened:
up to three years in jail and a $230 fine for the first offense and five years
imprisonment and $1,160 for the second.

Statistics

Abortions are a major cause of maternal morbidity and mortality in India. Because
most of the abortions are not reported and the sex selective abortions are carried out
secretly the statistics of abortions in India is of varying reliability. The available
statistics are grossly inadequate as hospitals keep records of only legal and reported
abortions.

[edit] Number of abortions in India

According to the Consortium on National Consensus for Medical Abortion in

India, every year an average of about 11 million abortions take place annually and
around 20,000 women die every year due to abortion related complications.[1]
Most abortion-related maternal deaths are attributable to illegal abortions.[2] In the
following table Number of abortions reported includes legal reported induced
abortions.[3]

Year 1972 1975 1980 1985 1990 1995 2000

Number of abortions
24300 214197 388405 583704 581215 570914 723142
reported

Abortion by selection of gender

The Lancet study seemed to confirm that laws were not deterring families from sex
selection. By analyzing national birth records and fertility histories from a 1998
Indian government survey of 1 million households, the study estimated that at
least 500,000 female fetuses in 1997 were aborted. Based on that one year, they
came to the 10 million figure. The study also found that families whose first child was
a girl were 30 percent less likely overall to produce another girl. And if the mothers
had at least a 10th-grade education, the gap was twice as large as that for illiterate
mothers. Having gender-based abortions have been illegal since 1994.

[edit] Female abortion

A lot of people in India are turning more towards abortion for girls because In India,
there are less than 93 women for every 100 men in the population. The accepted
reason for such a disparity is the practice of female infanticide in India, prompted by
the existence of a dowry system which requires the family to pay out a great deal of
money when a female child is married. For a poor family, the birth of a girl child can
signal the beginning of financial ruin and extreme hardship. Which then they choose
to have an ultrasound so they can make sure if they are having a male or female. The
implication is that by avoiding a girl, a family will avoid paying a large dowry on the
marriage of her daughter. According to UNICEF, the problem is getting worse as
scientific methods of detecting the sex of a baby and of performing abortions are
improving. Experts say that sex-selective abortions in India reduced the number
of girls per 1,000 boys from 945 in 1991 to 927 in 2001.

[edit] Medical abortion and the law

In order to prevent the misuse of induced abortions, most countries in the world have
created strict abortion laws and so has India. As per India’s abortion laws only
qualified doctors, under stipulated conditions, can perform abortion on a woman
in a clinic or a hospital that has been approved of doing so. The Indian abortion
laws fall under the Medical Termination of Pregnancy (MTP) Act, which was
enacted by the Indian Parliament in the year 1971. The MTP Act came into
effect from April 1st, 1972 and was once amended in 1975. The Medical
Termination of Pregnancy (MTP) Act of India clearly states the conditions under
which a pregnancy can be ended or aborted, the persons who are qualified to
conduct the abortion and the place of implementation.[4]

[edit] Indications for early medical abortion

[edit] General condition to be fulfilled

All women coming to a health facility seeking termination of pregnancy up to 7
weeks period of gestation (49 days from the first day of the last menstrual period in
women with regular cycle of 28 days) provided the following aspects have been
assessed and found appropriate:[5]

• frame of the mind of patient and her acceptability of minimum three follow-up
visits
• ready for surgical procedure if failure or excessive bleeding occurs
• family support
• permission of guardian in case of minor as per MTP Act 1971
• easy access to appropriate health care facility

Only registered medical practitioners as prescribed by the MTP Act are authorized to
prescribe mifepristone with misoprostol for medical abortion (Definition 2(d) of
section 2 and MTP rule 3). Mifepristone with misoprostol for termination of early
pregnancy not exceeding seven weeks, may be prescribed by a registered medical
practitioner as prescribed under section 2 (d) and rule 3, having access to a place
approved by the Government under section 4 (b) and rule (1), for surgical and
emergency back-up when such a back-up is indicated. This may include primary
health care-clinic or hospital-based set-up. Initial workup, counseling, prescription
and administration could be in a clinic or in the consulting room. Home
administration of misoprostol may be advised at discretion in certain cases with an
access to 24-hours emergency services.

[edit] Choice between Medical and Surgical Abortion

• Vacuum Aspiration (Suction evacuation) is the most commonly-used method

for termination of early pregnancies. However, being a surgical technique, it is
associated with risks of infection, perforation of uterus, incomplete abortion
and post-procedure uterine synechiae formation (Asherman’s Syndrome).
• The success of abortion with drugs depends on multiple factors including the
regimen used,dosage schedule, route of administration and gestational age.
However, after counseling, the woman should be allowed to make an informed
decision.
• Mifepristone with misoprostol is favourable if pregnancy is = 7 weeks.
• Surgical abortion is preferred if patient desires concurrent tubal ligation.
• If a woman fulfills the criteria for selecting either method, final choice to be
given to the woman.

[edit] Contraindications for medical abortion

Where a pregnant woman has a serious medical disease and continuation of

pregnancy could endanger her life. Indian MTP act lay a clear guideline under
which medical abortion is contra indicated

[edit] Contraindications due to Medical Reasons

• smoking > 35 years

• anemia – hemoglobin < 8 gm %
• suspected /confirmed ectopic pregnancy / undiagnosed adnexal mass
 • coagulopathy or women on anticoagulant therapy
• chronic adrenal failure or current use of systemic corticosteroids
• uncontrolled hypertension with BP >160/100mmHg
• cardio-vascular diseases such as angina, valvular disease, arrhythmia
• severe renal, liver or respiratory diseases
• glaucoma
• uncontrolled seizure disorder
• allergy or intolerance to mifepristone / misoprostol or other prostaglandins
• lack of access to 24-hours emergency services.

[edit] Psycho-social situations

This include the cases when

• women unable to take responsibility

• anxious women wanting quick abortion
• language or comprehension barrier
• not willing for surgical abortion in case of failure

[edit] References

1. ^ "Introduction". Consortium on National Consensus for Medical Abortion in India.

http://www.aiims.edu/aiims/events/Gynaewebsite/ma_finalsite/introduction.html.
Retrieved on 2008-12-03.
2. ^ "Current status of abortion in India". Consortium on National Consensus for
Medical Abortion in India.
http://www.aiims.ac.in/aiims/events/Gynaewebsite/ma_finalsite/report/1_1_1.htm.
Retrieved on 2008-10-11.
3. ^ Historical abortion statistics, India Historical abortion statistics, India
4. ^ "Medical Termination of Pregnancy, 1971". Medindia.com.
http://www.medindia.net/Indian_Health_Act/the-medical-termination-of-pregnancy-
act-1971-introduction.htm. Retrieved on 2008-12-10.
5. ^ Guidelines for Medical Abortion in India

Law of Abortion in India

04-12-2008
Blogs.expressindia.com
PanchajanyaBatraSingh

The Nikita Mehta case has given rise to a raging debate on

abortion laws in the country. The key issue is whether the
statutory time limit for abortion must be increased from the
currently permitted twenty weeks of gestation to twenty four
weeks or above? The answer is not easy to arrive at. The issue
involves complex questions of law, morality, theology, medicine
and philosophy.
A pregnancy when carried to term may stretch to about forty
weeks. The Medical Termination of Pregnancy Act, 1971 permits
abortion to be performed only when the pregnancy poses a risk to
the life of the pregnant woman, or, of grave injury to her physical or
mental health, or, when there is a substantial risk of the child being
born with physical or mental abnormalities so as to be seriously
handicapped.
A registered medical practitioner may terminate the
pregnancy up to twelve weeks of gestation but where the
period is between twelve to twenty weeks, the opinion of two
registered medical practitioners is required. The limit of twenty
weeks may be crossed only when the procedure is performed to
save the life of the woman. Importantly, pregnancy that results
from rape or failure of a contraceptive device between a married
couple is viewed as causing grave injury to the mental health of
the woman.
Facts:
In the Nikita Mehta case the gestational period had progressed
much beyond the prescribed period and was past twenty five
weeks. The petitioners pleaded that the defect in the heart of the
unborn child was detected at a late stage. They expressed their
inability to bear the psychological and monetary burden of giving
birth to a child that may suffer from severe health problems. The
anguish of such parents is understandable. It may neither have
been an easy life for the child on birth nor a comfortable situation
for the parents to raise a child with such a disability.
Existing mechanisms of state support are negligible for such
parents and individuals. The burden of providing special care falls
overwhelmingly on the immediate family.
It may be useful at this stage to examine the laws in other
countries on this issue. Many countries like Canada, Korea, China,
Germany, France and several other European countries have
comparatively liberal laws on abortion. Canada goes to the extent
of not interfering with the issue at all and leaves it entirely to the
woman and her physician. The woman is perceived as having
complete liberty upon her person and the foetus is seen as a part
of her body, acquiring the status of a person only after birth. Korea
permits abortions till twenty-eight weeks but spousal consent is
mandatory for married women. The Abortion Act, 1967 of U.K.
permits abortions till twenty four weeks but there is no upper limit if
the pregnancy poses a threat to a woman’s life or if the foetus is
likely to be born with severe physical or mental deformity.
There are countries that place more severe restrictions upon
abortions. While El Salvador and Chile have endorsed a complete
ban on abortions, Afghanistan, Bangladesh, Brazil and a few
others permit abortion only in cases of rape.
India, by comparison, has chosen a middle path instead of a
this-way-or-that-way approach. Rightly so perhaps, given the
sensitivity of the issue. A balanced approach appears suitable; a
balance between the respective interests of the woman, the
unborn, her family and the state.
The ‘balance approach’ is immaculately discussed in an
American case decided in 1973 wherein the court held that an
expecting woman has absolute right to privacy in respect of her
body till the first twelve weeks of pregnancy. At this stage the state
must not interfere with her decision about continuation or
termination of pregnancy while the foetus is but a part of her body.
Between twelve and twenty weeks the state may place limited
restrictions to permit abortions only when direly necessitated, for
example to save the life of a pregnant woman or on eugenic
grounds to prevent birth of severely malformed babies. But where
the period of gestation crosses twenty weeks the state may step in
to curtail abortions completely on grounds of compelling state
interest to protect and preserve potential life for the future of the
society.
The next question that arises is why the cut-off must be
marked at twenty weeks? The answer lies in the fact that the
baby becomes viable at this stage. In other words, the baby is no
longer indispensably dependant on its mother’s body and stands a
chance of survival upon delivery, albeit with suitable aids at this
premature stage. As it grows, it becomes more and more capable
of independent survival and from seven months of gestation
onwards, the chances of its survival upon birth become bright.
Thus, in addition to state interest, the interests of the fully formed
unborn child at this stage become noteworthy. The unborn find
explicit or implicit protection through many international and
national laws. The Convention on the Rights of the Child
recognized the need for special protection of children before and
after birth on account of their physical and mental immaturity. The
Convention on Elimination of Discrimination Against Women views
maternity as a social function thereby ratifying the idea that apart
from individual rights like right to privacy, we also have
corresponding duties that must be performed to sustain and
nurture society.
Indian legislations on family and succession have provided explicit
statutory protection to rights of the unborn by guarding their
interests in property, amongst others. Courts have begun to
recognize the worth of the unborn in deciding cases of
compensation for road accidents. The Indian Penal Code
prescribes imprisonment and fines as punishment for offences
against expectant women and unborn children. The severity of
punishment increases if the offence is caused to the detriment of a
‘quick child’ or an unborn baby that begins to move, usually around
five months of gestational age. Even the Code of Medical Ethics
urges doctors to respect human life from the point of conception
onwards.
Before considering any extension in the statutory time limit for
abortion, factors like possible abuse of law must be examined
carefully. One of the goals of enacting the Medical Termination of
Pregnancy Act was to contain the population explosion in the
country. It is however a grim reality that the legislation is also being
rampantly misused to cover and carry out sex-selective abortions
as evident from the highly skewed sex ratios in the country. It is
surprising that affluent and relatively educated parts of the country,
including the capital have persistently shown a bias against the girl
child. Would it be justified under such circumstances to give further
time to parents to consider gender based termination of pregnancy
and provide an enlarged legal umbrella towards acts that are
detrimental to the society?
Decision:
Coming back to the Nikita Mehta case, the Mumbai high court held
that no categorical opinion of experts had emerged to state that
the child would be born with serious handicaps. The court thus
denied recourse to medical termination of the pregnancy and an
opinion emerged that terminating the life of a viable unborn on
grounds of possible handicap is akin to mercy killing.
We also need to consider whether a further extension would lead
to a possibility of obnoxious agreements between the woman, her
family and the physician to terminate the pregnancy if the baby is
likely to be born less than perfect, even if such imperfection may
be accommodated with little effort and is not life threatening? It
must be appreciated that a civilized society and welfare state must
consider the rights of the unborn who are defenseless individuals
incapable of taking decisions or making informed choices about
their right to life. In fact the state must act as its parent to step in
and protect its life. The society certainly does not suggest
termination of the life of handicapped adults, then why must it take
a harsh stand against vulnerable individuals who are unborn
babies?
*
The next issue is the precise determination of what constitutes a
malformation and what may be termed as a severe mental or
physical deformity. With the growth of science and medicine newer
conditions are being described as diseases or deformities. At the
same time, new cures are also emerging. So what needs to be
viewed as a handicap and what need not becomes important. Let
us not forget those people who despite being severely
handicapped have made outstanding contributions to society, for
example Dr. Stephen Hawking, the world renowned scientist who
suffers from extremely debilitating motor neuron disease and
Ludwig van Beethoven, one of the greatest music composers of all
times despite his deafness. In both cases, the physical disabilities
emerged well into their adulthood. At that time, had there been
mechanisms to detect such future ‘handicaps’ in the feotus, these
people may never have been born. In other words, we cannot
completely ignore the possibility of committing grave mistakes by
extinguishing potentially great life with our limited understanding of
the future and our exaggerated fear of deformity.
Further, cases like Nikita Mehta are relatively few and it is
questionable if the time limit for abortion must be generally
extended on this account, particularly when such a solution may
turn out to be more a malady than a remedy. Moreover, most life
threatening and serious abnormalities are detected nowadays
within the prescribed twenty weeks.
The adverse ramifications of giving birth to handicapped children
may be minimized by creating effective state mechanisms for
adequate support to such children and families, both financial and
otherwise. Instead of giving a blanket cover to all cases, expert
committees may be constituted to evaluate cases beyond twenty
weeks on merit so that selective sanction for abortion at this stage
is given. It would also be important to define clearly what
constitutes a handicap severe enough to qualify for an abortion
after twenty weeks, for example cases of anencephaly wherein
there is absolutely no point in carrying the pregnancy to term.
To conclude it can be said that the discretion to extinguish life,
potential or existing, must be exercised with extreme caution.
Advancement in medical science bestows great power on
humanity that must be used for noble causes. Unfettered or
arbitrary misuse of such power may lead to grave consequences
for the society on multiple fronts. Our traditional inclination towards
non-violence, tolerance and perseverance must be remembered to
arrive at a decision that raises the standards of society and sets an
example for others to follow.
The author is a practicing lawyer and a member of the Bar Council
of Delhi

Abortion in India : Ground

Realities
Book Details

Author: Vimala Ramachandran & Leela Visaria (Eds.)

Year: 2007
ISBN: 0415424127
[ pp. xviii+352, figs. ]
[ Price: RS. 795.00, US$ 17.28 ]
www.easternbookcorporation.com

About the Book :

Abortion in India : Ground Realities

India was a pioneer in legalizing induced abortion, or
Medical Termination of Pregnancy (MTP) in 1971. Yet,
after three decades, morbidity and mortality due to
unsafe abortion remain a serious problem. There is little
public debate on the issue despite several national
campaigns on safe motherhood. Instead, discussion on
abortion has mainly centred around declining sex ratio,
sex-selective abortion , and the proliferation of abortion
clinics in urban areas. Adding to the problem is that
abortion continues to be a sensitive, private matter,
often with ethical/moral/religious connotations that sets
it apart from other reproductive health-seeking
behaviour. This book fills a gap in our understanding of
the ground realities with respect to induced abortion in
India to create an evidence-based body of knowledge.
Using both quantitative and qualitative research
methods, the case studies show why and under what
circumstances women seek abortion and the quality of
services available to them. They also explore inter-
generational differences in attitudes and practices, the
perceptions and selection of providers, female-selective
abortion, and informal abortion practioners. Among
other issues, the contributors show that strong
preference for sons, availability of modern techniques
for diagnostic tests, widespread acceptance of the small
family norm, and heavy reliance on female sterilisation
as the primary method of contraception lead women to
abort unwanted pregnancies. A book that goes beyond
the smokescreen of data and regulation to unravel the
human story behind elective abortion, it will be of
interest to those studying health, public policy, and
gender, apart from the general reader.
 Early Medical Abortion in India: Three Studies
and Their Implications for Abortion Services
Kurus Coyaji, MD

Although legal in India, abortion is frequently performed under unsafe or undesirable

conditions. Moreover, the advancements required to make surgical abortion safe in India
appear insurmountable in the near future. Because it requires a less extensive
infrastructure than surgical abortion, medical abortion offers great potential for improving
abortion access and safety now. To examine the feasibility of introducing medical abortion
and to assess its potential as an alternative to surgical abortion, we conducted three
separate studies on the use of 600 mg mifepristone and 400 µg oral misoprostol for
medical abortion. Study 1 focused on the safety, efficacy, and feasibility of the standard
French, three-visit protocol and was conducted in urban research centers in China, Cuba,
and India. Study 2 liberalized the protocol to collect information from women using the
method under more "real life" conditions in urban family planning clinics in India. Lastly,
study 3 extended the trial to rural Indian villages to examine feasibility in settings typical of
where the majority of the population resides. In all three settings in India mifepristone-
misoprostol proved to be not only feasible, but safe and acceptable as well. With some
changes to current protocols, medical abortion could now be safely phased into the
existing health care infrastructure in India. Yet, medical abortion will bring its own set of
service delivery challenges to address.

www.amwa-doc.org

Wisdom too often never comes, and so one ought not to reject it merely because it
comes late”
Felix Frankfurter quotes (American Jurist, 1882-1965)
Similar Quotes. About: Wisdom quotes.
Add to Chapter...

“ It is the woman who chooses the man who will choose her.”
The first symptom of love in a young man is shyness; the first symptom in a woman,
it's boldness.”
Men forget but never forgive. Women forgive but never forget.”

We have the duty to protect the life of an unborn child.”

Ronald Reagan quotes (American 40th US President (1981- 89), 1911-2004)
Similar Quotes.
“Unborn children can experience pain even more so than adults as the baby has more pain receptors per square inch than at any other
time in its life.”
Sam Brownback quotes

It puts limits on criminals' rights to destroy unborn children without the permission
“
of the woman.”
Lindsey Graham quotes
*
Abolition of a woman's right to abortion, when and if she wants it, amounts to
compulsory maternity: a form of rape by the State.”
jennifer239543

Edward Abbey quotes (American Writer whose works, set primarily in the southwestern United States, reflect
an uncompromising environmentalist philosophy. 1927-1989)

Similar Quotes.
Add to Chapter

Because I believe that abortion is murder, I also believe that force is justified in an
“
attempt to stop it.”
Eric Rudolph quotes

It is a poverty to decide that a child must die so that you may live as you wish. Mother Teresa

The greatest destroyer of peace is abortion because if a mother can kill her
own child, what is left for me to kill you and you to kill me? There is nothing
between. Mother Teresa

“Republicans are against abortion until their daughters need one, Democrats are for
abortion until their daughter wants one” - Grace McGarvie

The Mehta Case – Decoding the Indian Legal System

Nikita Mehta, with a protruding belly, seems to be a familiar picture now. All of us
have been watching her and her husband on TV, doing the rounds of hospitals and the
Mumbai High Court. Her plea for the abortion of her 24 week old foetus has been
rejected. Her basis for the plea was that her unborn child suffers from a congenital
heart blockage and misplacement of arteries. The Indian abortion law says that a
foetus cannot be aborted after 20 weeks of pregnancy. But how fair is it to bring such
a child into this world who would just not need air, water and food but also a
pacemaker to survive, right from the time of birth?

Did the judge even imagine the sight of an infant, who has just opened his eyes,
moving his tiny hands and feet in excitement, waiting to see the world? An infant,
who is rather than being handed over in the warm hands of his mother, is laid on a
cold operation theatre table and his puny body is torn apart with the merciless clinical
instruments, to insert an artificial pacemaker? Now that’s a wonderful welcome for a
new born into this kind and caring world!! And isn’t it amazing to bring into this
world a child who is already on a life supporting machine?

When god created this world, he gave his most precious power to women. The power
to give birth, bring new lives to this world. But along with that he filled a mother’s
heart with bounty of emotions, care and affection to look after that new life. So much
so that if there exists a bond of selfless love in the world, that’s between a mother and
child. A mother starts feeling for her child right from the time she conceives it in her
womb. She caresses it, loves it, feeds it and nurtures it. So how can anyone think that
a mother who wants to abort her first child is doing that for selfish reasons and accuse
her of being a criminal? Isn’t it fair to abort such a child who will be handicapped for
life and will have to live on a pacemaker for all his life?

A pacemaker costs Rs 1 lakh and has a life of about 5 years. Nikita and Haresh
Mehta, parents of the unborn child belong to middle class. They would not be able to
bear these expenses and the endless medical bills. This would leave them arranging
for funds and resources throughout their lives to sustain the child. Still, let’s be
optimistic and hope that some charity institution takes up the child’s responsibility
and promise to bear his medical expenses, considering that the unborn child is already
famous in the world, thanks to our 24 hour news channels and endless debates have
been happening on this topic. But who bears the emotional trauma that the family will
go through every single day watching their child? Every parent wishes to write their
child’s fate in golden letters, blessing them with all the happiness and success in the
world. So how can a parent bring a child into this world when they know that their
child’s future will be doomed?

I agree that we have examples like Stephen Hawkins who have made it big, despite
their severe physical disabilities but isn’t the scenario in foreign countries different
from a developing nation like India? There they have the facilities, options and the
technology. The authorities make sure that such children get the right kind of
facilities. But the Indian legislative doesn’t take any responsibility for such children.
The media will cover the child’s birth, entire world will watch, worry for a while and
then? Everybody forgets it; nobody will come when the child is in excruciating pain,
going through harsh medical procedures. The only two persons watching him would
be his parents! So if a couple does not want to face such a sight in their lives and save
their child from such a fate by aborting it, then why is the law stopping it? This is a
perfect case of mercy killing and I believe that the parents should be allowed to
decide what they want to do with their child. If they do not think that they are ready to
accept such a child and can not take care of him then they should be allowed to abort
it.

Nobody wants the law to be changed, but an exception can be made on humanitarian
grounds! After all how many Nikitas do we have going to court for such a case
everyday? By rejecting her plea, court has not only acted ruthless but also discouraged
all those citizens who act responsible and approach the law to make exceptions rather
than do the deeds surreptitiously!

Nirmalraja.wordpress.com/…./the-mehta-case—decoding-the-indian-legal-
system

HIGH COURT REJECTS NIKITA

MEHTA’S PLEA FOR ABORTION
The Bombay High Court on Monday refused Harish and Nikita Mehta's plea seeking an abortion. The HC said that there was no
medical evidence to support the Mehtas' abortion plea for their 25-week-old foetus. It also said that the case is not exceptional to use
discretionary powers.

The Mumbai High Court rejected a plea by Niketa Mehta to get her foetus aborted after discovering that the unborn child had
blockages in heart. The court had earlier held that the report on which the couple Niketa and Haresh, both 31, were seeking the
abortion was not satisfying, and hence ordered a special committee from JJ Hospital to “give an additional confirmed opinion”. The
case has garnered much attention as the couple had decided to tread the legal path against the country’s 37-year-old abortion law
that does not allow termination of pregnancy beyond 20 weeks unless it harms mother’s life or health. They were pleading the case on
the basis that the child is suffering from a congenital heart block that would require a permanent pace-maker, meaning that the child
would have a disabled life and would also hurt them financially which they would not be able to afford in the long run. They were also
citing doctor’s report that asserts that the child will suffer critical problems even with a pace-maker. But the Mumbai High Court said
that it was up to parliament and not the court to change the provisions of Indian law, which specifies that a pregnancy cannot be
terminated after 20 weeks. It said that there was no evidence of abnormalities with the foetus.

Abortions are legal in India until the 12th week of pregnancy. Between 12 and 20 weeks abortions are allowed if either the mother or
the fetus faces a health risk. Nikita’s lawyer Amit Kharkhanis said that the plea of the parents was justified. He said that the High
Court’s decision will somewhere encourage illegal abortions. With cameraperson Abhay Prasad, Rajeev Mishra for NMTV News.

1. www.nmtv.tv/shownews.php?id=3026

The Niketa Mehta case:does the right to abortion threaten disability rights?
Neha Madhiwalla

The secular public discussion on abortion in India has generally been centred around the
need to prevent sex selective abortion because of its social consequences. Abortion has also
been discussed in the context of maternal health, where it is feared that contraception use is
substituted by repeated induced abortions. Another concern has been that induced abortions
are resorted to by unmarried girls. In all the above circumstances, the key ethical issues are
related to gender inequality and the presence of subtle or overt coercion. It needed a person
like Niketa Mehta to initiate the ethical discussion surrounding the question of abortion per se
in India.

Coercion does not seem to be an issue in the case of Niketa Mehta. An educated, middle-
class woman, with a supportive husband, having a much longed-for first pregnancy, she was
arguably better placed than most women to take a decision about her pregnancy. She was
equipped with sufficient information on the foetus` health condition and apparently did not
face any coercion from her family. She wanted to terminate a pregnancy which had a high
probability of resulting in a miscarriage or the birth of a child with a serious heart defect. This
could have been a routine decision, had it not been for the fact that Niketa`s pregnancy had
advanced beyond the 20 weeks during which medical termination of pregnancy is permitted in
India.

Rather than resort to an illegal abortion, Niketa and her husband, along with the specialist
who diagnosed a congenital anomaly in the foetus, filed a petition in the Mumbai High Court
asking for permission for an abortion in the 23rd week, which was when the problem was
detected (1). The argument supporting them is that in several countries, including the United
Kingdom, there is no gestational age limit set for abortion in the case of foetal abnormalities
(2). Niketa`s personal reason for wanting an abortion was that she did not want to give birth to
a severely disabled infant and witness its suffering; the trauma caused to her and her family
was an additional reason (3).

While Niketa failed to obtain a favourable judgement from the court, her case has prompted
the government to announce that it will be considering a review of the law (4). Further, this
case raises several ethical dilemmas related to abortion, and also to disability and the role of
medical intervention.

Disability and the Medical Termination of Pregnancy Act

Disability-related abortion is actually built into the Indian law (5) which permits abortion up to
20 weeks if there is a pre-natal diagnosis of congenital defects; a pre-natal diagnostic test
would be meaningless without the possibility of correcting the problem in utero or terminating
the pregnancy. Some would argue that once abortion following prenatal diagnosis of foetal
abnormalities is legal, a gestational age limit is meaningless. And if we start from the premise
that it is a woman`s right to terminate a pregnancy that she does not want, even a planned
pregnancy can become unwanted once foetal abnormalities are detected, regardless of how
far the pregnancy has progressed. Further, a logical consequence of the provision for
abortion in the case of foetal abnormalities is that each development in pre-natal diagnostics
will necessarily be followed by revisions in the law that the development necessitates. In
Nikita Mehta`s case, the foetal heart defect could only have been detected after 20 weeks`
gestation.

Third, there may be a social context to the choice to undergo an abortion rather than carry a
pregnancy to term. Niketa was remarkably unequivocal in her views. Regardless of the offers
to support and care for her child when born, she was categorical in the assertion that her
decision was a private matter. This is not surprising as disability has remained largely a
private concern in India. The family of the disabled child bears almost all the burden of care,
support and even financial costs. Unlike other countries, no comprehensive social support
system for people with special needs exists in India. As a result, disability is looked upon with
a sense of fear and a lack of understanding, which is perpetuated through images in the
popular media.

However, removing the social barriers to care, stigma and discrimination would not
automatically make disability a "non issue". The decision to give birth to a child who is
disabled can never be easy, even in the best of circumstances, though several women
choose to continue a pregnancy even when they know that they will give birth to a disabled
child, and many willingly adopt a disabled child.

I believe that no law or person can ethically compel a woman to carry on a pregnancy that
she does not want. However, when the pregnancy has progressed to a point where the foetus
has become viable, one is compelled to view the situation from the point of the woman as well
as the potential child. Thus, while a woman`s choice not to continue a pregnancy which
harms her sense of well-being remains at any point in the pregnancy, it may be impossible to
fulfil her choice when a late abortion could amount to a prematurely induced birth of a child.
The only exception is when the pregnancy poses a grave danger to the woman`s lifeher
interests take precedence over all other considerations.

The problem arises when the reason for abortion is not the risk posed by the pregnancy but
the perceived consequences of giving birth to that child. These risks are not physical but
social. It would be incorrect to posit this as a conflict between woman and foetus. One would
have to explore the woman`s reasons for wanting an abortion. In this case, Niketa was as
concerned about the possible suffering of the future child as her own suffering.

This position also runs counter to the legal and political position that has long been accepted
in the context of sex selection, where the pregnant woman`s own choice is ignored in order to
protect the rights of women as a group. I have also been a participant in the campaign which
resulted in legislation to ban sex selection, and its amendment.

At best, this contradictory position could be defended by arguing, as I had done, in an earlier
article in this journal (6), that the disadvantages that girls face are completely socially
constructed and, hence, there is space for and obligation on society at large to intervene in
the matter. In contrast, disability poses inherent disadvantages, which although they can be
ameliorated by social measures, cannot be removed altogether. In such a situation, one must
give the woman the right to decide in her best interest.

Does the right to abortion threaten disability rights?

The question remains: does one`s endorsement of the right to abortion on grounds of
disability at any point in the pregnancy weaken one`s commitment to the rights of the
disabled? I argue that the value of living persons cannot be equated with the foetus which is
not a person. Thus, the right of a woman to decide on the fate of her pregnancy does not
conflict with, or interfere with, the human rights of the disabled. The decision to abort a foetus
for no other reason but congenital defects is largely based on the parents` prediction of the
quality of life that such a child would have, and their own emotional response to it. These in
turn are mostly determined by the existing condition of the disabled. There is little acceptance
of the rights of the disabled in society, and scant attention paid to their needs, making
disability appear to be a greater tragedy than it needs to be. There is a role for society and the
state to minimise the disadvantages that the disabled face due to institutional rules and
infrastructural arrangements. This is a question of not merely providing services and
resources for rehabilitation, but also of acknowledging the right of the disabled to be part of
society, and accepting different definitions of success and fulfilment in life.

The response of parents, and their experiences, after the child is born can be different; at
least some parents of disabled children note that the experience of parenthood with that child
was as rewarding as with any other child. However, their experiences have still failed to
challenge the dominant image of disability, which is also shared by a large part of the medical
profession which is responsible for guiding and supporting women such as Niketa.

In this case, one is inclined to vote in favour of Niketa, as an endorsement of her right as a
woman to choose whether to give birth or not. There was speculation and there were unsubtle
hints that she had eventually induced the abortion on failing to obtain a favourable judgment.
This was not deserved by a woman who had no need to come out in public with her
predicament in the first place, had she not wanted to draw attention to the larger issue at
stake.

The development of diagnostic technology which enables better detection of foetal

abnormalities will take its own course and have its momentum, as it is well entrenched in the
logic of the private medical sector, which is patronised by the middle and upper class.
However, the movement for disability rights needs the support of the larger collective, and
more comprehensive measures on the part of the state and society, which cannot be
commodified as easily. While each family finds its own way of coping with the burden of care,
in the search for individual solutions to seemingly personal tragedies, the larger struggle may
be lost even before it is begun. This is only symptomatic of the larger situation of healthcare in
India, where the more influential middle class has migrated entirely out of the public sector
and sees no benefit in devoting its energies to the development of social and comprehensive
solutions which would benefit the people at large.

References:
1. Kher S. Niketa's miscarriage brings back focus on legal cut off for abortion. Indian Express
2008 Aug 15 (online edition) [cited 2008 Sep 30]. Available from:
http://www.expressindia.com/latest-news/Niketas-miscarriage-brings-focus-back-on-legal-
cutoff-for-abortion/349199

2. Ministry of Justice (United Kingdom). The UK Law statute database. Abortion Act 1967
(c.87). [cited 2008 Sep 30]. Available from: http://www.statutelaw.gov.uk/content.aspx?
activeTextDocId=1181037

3. Kilpady N. CNN/IBN. Abortion debate: Bombay HC verdict today. IBNlive.com . 2008 Aug
[cited 2008 Sep 30]. Available from: http://www.ibnlive.com/news/abortion-debate-bombay-hc-
verdict-today--your-say/70368-3.html?from=search-relatedstories

4. Sharma S. Niketa effect, government to review abortion laws. Hindustan Times. 2008 Sep
4. [cited 2008 Sep 30]. Available from:
http://www.hindustantimes.com/StoryPage/StoryPage.aspx?sectionName=&id=61ed0377-
7d6f-4f0a-8f0a-a33a06f99550&&Headline=Niketa+effect%3a+Govt+to+review+abortion+laws

5. Ministry of Health and Family Welfare, government of India. The Medical Termination of
Pregnancy Act, 1971 (Act No.34 of 1971). [cited 2008 Sep 30].Available from:
http://mohfw.nic.in/MTP%20Act%201971.htm
6. Madhiwalla N. Sex selection: ethics in the context of development. Issues Med Ethics
2001; 9(4): 125-6.

While Niketa failed to obtain a favourable judgement from the court, her case
has ... In Nikita Mehta`s case, the foetal heart defect could only have been ...
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