Monday, October 2, 2023

The Termination Test

In what could perhaps be seen as a skewed response to maternal upbraiding, courts in India have been okaying medical termination of pregnancies beyond the previous lakshman rekha of 20-24 weeks. Recently, a 27-week-old foetus was cleared for abortion. Court-sanctioned abortions in India have gone beyond the doors of matrimony

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By Vikram Kilpady

It is standard berating protocol for most Indian mothers to scold their children with reminiscences of all they endured during their nearly ten pre-partum months, especially when the offspring being castigated has done something extremely embarrassing. A full-term child, yes, is born at 40 weeks. Normal term deliveries range from 37 to 39 weeks, and anything before that is pre-term. So, when one sees a headline announcing that the Gujarat High Court has permitted a girl of 11 to terminate her 27-week-old pregnancy, the result of her being raped by her father, a pervasive world-weariness engulfs the bitterness. But the world is such that horrible crimes like these do happen.

The High Court also directed the Gujarat government to pay Rs 2.5 lakh compensation to the girl for the undeserved, unsought agony and trauma, of which Rs 50,000 would be paid immediately and the remaining would be kept in an account in a nationalised bank. The district collector was appointed the child’s guardian to ensure she gets the interest on the Rs two lakh deposit. 

The medical report of the girl carried out by the medical superintendent of the Sir Sayajirao Gaekwad Hospital in Vadodara noted the age of the foetus as 26 weeks and 5 days. The report also noted the stress on the girl, for what it called “an unwanted catastrophic event and pregnancy”. The termination of the pregnancy had been petitioned for by the victim’s mother. Some of us may ask why did she not lodge a police complaint against the rapist in the first place.

As one trawls the web and flips through newspapers, one notices that in such cases of unwanted pregnancies, the foetal age at which termination has been allowed is getting higher and higher. There is a case of the Delhi High Court ordering the termination of a 33-week-old foetus on account of its being likely to have a congenital disability. The 26-year-old woman who bore the pregnancy had to move Court after the Lok Nayak Hospital refused her request for termination, since the pregnancy was at an advanced stage. The judge, Justice Prathiba M Singh, said the mother’s choice to continue or not with a pregnancy is ultimate as per Indian law. The judge said the dilemma the woman had undergone was severe and observed that with technology evolving, such questions on abortion and termination were bound to show up.

The courts have been clear in ordering medical termination in cases of incest, like in the Gujarat case, and where the foetus has medical problems.

In October 2021, the Delhi High Court allowed the termination of a 25-week-old foetus as it was suffering from physical deformities and had no chance of survival. Justice Rekha Palli allowed the plea after Lady Hardinge Hospital’s report on the feasibility of termination of the petitioner’s pregnancy. The petitioner, who was not well-to-do, had relied on an ultrasound report to state that the foetus did not have any skull bone, had small atrophic matter, a deformed vertebral column and was also suffering from mild ascites omphalocele. 

Similarly in January 2022, the Delhi High Court allowed a 28-week pregnant woman to abort since there was substantial foetal abnormality. Justice Jyoti Singh had observed that reproductive choice is a facet of the reproductive rights of a woman and a dimension of her personal liberty enshrined in Article 21 of the Constitution.

The medical board of the All India Institute of Medical Sciences submitted there was a major foetal abnormality in the form of a rare congenital heart disease coupled with anomalies found via the assessment of the paediatric cardiologist and neonatologist. The board’s report said the chances for the foetus of a successful outcome were 80% if operated on in time and optimally managed with regular follow-up. The report further stated that the child would require follow-up in cardiology and cardiac surgery two-three times per year initially and annually thereafter.

Whenever such stories on court-mandated abortions come up, one remembers the death of Savita Halappanavar, who died in Galway, Ireland, in October 2012, after being refused an abortion. Ireland at the time banned abortions if there was a fetal heartbeat present. In 2018, following the outcry over Halappanavar’s death, Ireland cleared a law on abortions, five days before Christmas that year. The strange thing is that the Supreme Court of Ireland had in 1992 itself allowed ending pregnancies when a pregnant woman’s life is under threat from the pregnancy. It also didn’t exclude the risk of maternal suicide. 

Court-sanctioned abortions in India have gone beyond the doors of matrimony. The Supreme Court bench of Justice DY Chandrachud (before he became chief justice of India), Justice AS Bopanna and Justice JB Pardiwala held the 2021 amendment to the Medical Termination of Pregnancy Act did not distinguish between married and unmarried women. The Court was deciding on whether it was valid for unmarried women to be excluded from Rule 3B of the Medical Termination Rules. The rule mentions the categories of women whose pregnancy can be terminated when the age of the foetus is between 20 and 24 weeks. The Court held that if Rule 3B(c) was to be applied only to married women, it could end up implying only married women indulged in sexual activities, which was clearly not the case. The bench’s extending the law to include unmarried women was seen as signifying societal decadence and all that is evil and against Indian civilisation, and the judges were social media fodder last year.

In this light, the recent decision of the Supreme Court of Mexico to term all laws against abortion as unconstitutional and as violative of women’s rights would be welcomed in the US where the Roe vs Wade decision was overturned this year. Like Ireland, Mexico is largely Catholic. Savita Halappanavar’s death in Ireland in 2012 was ascribed by TV anchors to the country being Catholic, which was clearly not the case. And just like in the US, the war between the federal Mexican government and the governments in the country’s states will be long-drawn-out. In America, states have been eyeing harsher measures against abortion after the US Supreme Court decision.

Mexico has also been split almost vertically over abortion, like its northern neighbour. Many in Mexico saw this as a victory of women’s rights and a victory long overdue. On the other hand, pro-lifers in Mexico are now gearing up to fight a new battle in getting the state to guarantee the right to life from the moment of conception.

Courts in India have not been on the frontfoot on medical termination of foetuses at the first court level, and most of the decisions have been at the level of the High Courts and the Supreme Court. There must be a study on why it is so, or does only the higher judiciary see the merit in the fundamental rights of the individual?

The Bharatiya Nyaya Sanhita Bill, the proposed legislation that seeks to replace the Indian Penal Code, is clear on punishing gang-rapists of minor girls with the death sentence. But stricter monitoring of what happens in the case of minors preyed upon by immediate family cannot be enforced by the letter of the law alone.

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