Thanks to media interest, millions of people have had a direct peek into the life and the choices before a 25-weeks pregnant woman and her husband in Mumbai. Niketa and Haresh Mehta, who were married earlier this year, decided to seek the court’s permission to have an abortion when their doctor informed them that the foetus in Niketa’s womb had a complete congenital heart block. Rather than going through with the pregnancy, the couple decided on an abortion only to come up against stipulations in the Medical Termination of Pregnancy Act 1971 that permits abortions only up to 20 weeks, and that too on certification by at least two medical practitioners that either the mother's or the child's life is at risk.

The Bombay High Court heard the case. On Monday, August 4, it denied the petition stating that they could not make an exception in the case and that nothing in the report of the expert committee they had instituted suggested that the child’s life was at risk. They also suggested that the court could not change the law, that this was the job of legislators and that people like the Mehtas should seek a change in the law.

Grey areas

The case has thrown up a fascinating number of issues that concern individual choice, ethics, technology and the law. In each instance, there are no clear guidelines, there is nothing that is black and white.

Much of the press coverage, for instance, has stressed the right of Niketa as a mother to choose whether she wants to bring this child into the world or not and whether she wants to be burdened with the possibility of a disabled child. There is nothing wrong with this formulation. The battle for women’s reproductive rights has rested on the issue of choice. Yet, there are limitations — ethical, scientific and legal.

For example, women’s groups around the world have fought for liberal abortion laws so that women do not have to put their lives at risk by seeking illegal abortions as a result of unwanted pregnancies. Yet in India, women’s groups have had to figure out how to prevent a liberal law from being misused for sex-selective abortions. Of course, it could be argued, and indeed has been argued, that this too is a woman’s choice. Women prefer not to give birth to girls because they want to spare them the suffering that they are bound to encounter for the rest of their lives as well as the problems they themselves will face as mothers of girls. Yet, the “choice” for sex-selective abortions has been denied under law in India because of the growing evidence of the impact of this on sex ratios in some parts of the country.

Niketa’s case also brings into focus the question of the use and misuse of technology. Ultra-sonography and earlier, amniocentesis, were principally meant to detect genetic abnormalities. Yet in India they have been deliberately and callously misused to detect the sex of the foetus following which women seek an abortion. There would be cases of genetic disorders followed by abortions too but as these are usually detected at a later stage in the pregnancy, as happened to Niketa, legal abortions are not an option.

The same mother who uses technology to ensure that the child in her womb is normal and healthy also has the knowledge that even if there is a problem, there is now a medical solution.

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But, like choice, technology too has a flip side. Thus, while the technology to detect genetic abnormalities has been misused to determine the sex of the child, advances in science today are ensuring that even children born with congenital problems, such as arterial blocks, can actually be treated and can go on to live normal lives. So the same mother who uses technology to ensure that the child in her womb is normal and healthy also has the knowledge that even if there is a problem, there is now a medical solution.

The case has raised legal issues including the need to amend the MTP Act. Those against sex-selective abortions have argued fiercely for maintaining the 20-week limit while others would argue that there is a case for relaxing it by a few weeks. The time limit varies from country to country where abortion is legal. Therefore, there should be no objection to debating the possibility of amending the law.

Not an easy choice

While changes in the law can be debated, the ethical dimension, on whether abortions are right or wrong, is not as emotive an issue in India as it is in countries like the U.S. Although there are religious groups that strictly prohibit abortion, this dimension has not been central to the debate. Yet, while women constrained by religious belief would not consider abortion as an option, even those not bound by religious belief often hesitate and feel guilty when seeking an abortion. It is never an easy or simple choice for any woman.

Of course, the question of choice is restricted to an urban class in India that has access to and can afford to use technology to monitor the progress of a pregnancy. Poor mothers have neither the time, nor the money, to go for regular check-ups during pregnancy. If they and the child survive the pregnancy, that in itself is often a miracle given the high rate of maternal and infant mortality in this country. And if at the end of nine months, a deformed or incapacitated child is born, the gods are blamed for it and life goes on. The question of choice simply does not arise, not on whether to get pregnant, or on what to do about an infant with severe health problems.

Niketa and Haresh will now have to live with the choice that has been made for them by the court and the law. But they should be lauded for being open and seeking a legal way out. As a result, they have thrown open an important issue for people to understand and debate.