The dignity of choice: SC to decide on prevailing abortion laws soon
Should a would-be mother, even if she is staring at a life with a child born with severe disability, be forced to carry a pregnancy to term? Should a rape victim, that too a minor, be forced to bear a child conceived from that incident even if she does not want to?
Whose life should take precedence - the life of the mother, or that of the child?
These conflicting and vexing questions will possibly only be answered when the Supreme Court delivers its verdict on a petition against a 4 August 2008 ruling of the Bombay High Court.
After Senior Advocate Colin Gonsalves made his submissions, the top court issued notice to the government on Thursday, asking it to clarify whether the prevailing abortion law in India - the Medical Termination of Pregnancy Act (MTP Act) - is in need of an overhaul.
The appeal was filed by Dr Nikhil Datar, a gynaecologist in Mumbai, and a couple whose child was legally forced to be born despite being diagnosed with severe foetal disabilities.
Dr Datar and the couple's (who wish to remain unnamed) focus is on Section 3(2)(b) of the MTP Act, which caps a 20-week period for legally allowing abortions.
The second prong of their challenge is directed against Section 5 of the Act, which permits an abortion only if there are serious risks to the physical health of the would-be-mother. According to them, the Act should also take the following into account:
1. The mental health of the mother if the law compels her the delivery of the child.
2. The social and economic conditions of the parents, which might make it difficult to bring up a child with single or multiple disabilities.
Raising the time period for abortions
The petition contends that the permissible time limit for allowing abortions should be raised from 20 to 26 weeks as the former isn't adequate to detect foetal abnormalities.
In July last year, the Gujarat HC denied a rape-survivor's right to abortion, and ruled that she has to carry the pregnancy to term. This despite the mother being a minor who might be remaining scarred and traumatised for her entire life.
Gynaecologists Catch spoke to agree that increasing it to 26 weeks is the best way forward. Both Mumbai doctors Dr Duru Shah and Dr Mohan Raut, who have frequently come across such cases as that of the present petitioners, concur with their contention.
The two have also been pushing for raising the time limit, but have not moved court till now.
Dr Raut gave the example of Ethiopia, where the revised abortion law not only allows for this increased time limit, but also doesn't insist upon rape survivors giving birth.
Conflict between disability and abortion rights
The contentions of the petitioners in the present case have the potential to set abortion rights and disability rights activists on a collision course. Because, the latter argue that no matter what, children, even if born with disabilities, must be brought into the world.
For instance this editorial in the Indian Journal of Medical Ethics argues that educated, middle and upper-middle class women, who are affluent enough, should not abort foetuses even if they are diagnosed with severe disabilities.
This conflict is not peculiar to India. For example, Britain's abortion law allows a time limit of 26 weeks, but according to this BBC report, the Disability Rights Commission had serious reservations about such a provision.
Therefore, whichever way the court finally rules, there is a strong possibility that it could spark off a lingering debate between women's rights and those of the disabled.