Abortion Denial in India Highlights Limitations in Law

A typing error — casting a fetus’s chance of being born without a significant handicap as "very fair" when the doctor intended to write "very few" – resulted in the denial of abortion services to an Indian woman named Niketa Mehta.  A week later, Niketa suffered a miscarriage, but the initial denial by the Mumbai High Court raised a storm over not just Niketa Mehta’s particular fetus and her right to abort it but also over a woman’s autonomy over her body.

The High Court ruled that her request for the termination of pregnancy due to a congenital heart condition of the fetus was akin to "mercy killing" and given the stand the judiciary has had so far on mercy killings, her plea was rejected. (Ironically, the Indian law allows what the Mumbai High Court chose to term as "mercy killing" til 20 weeks of pregnancy.) So what Niketa could have easily exercised as a personal choice a couple of weeks earlier had been denied to her.

The hospital where Niketa’s case was diagnosed gave absolutely opposite opinions of the fetus within 72 hours; this anomaly in diagnosis was quickly attributed to a typo-error. A diagnosis that the attending physician meant to read as "very few chances" the child would not be born handicapped or incapacitated was transcribed as "very fair chances" that the child would be born without a handicap. So eventually the abortion was denied on the grounds that the diagnosis by experts did not establish the certainty of a handicap. Moreover, India’s abortion laws allow for a pregnancy to be terminated after 20 weeks only if there was a fatal risk to the mother and not the fetus.

The attempt to amend the law now has been put into the hands of the legislature, as the existing laws did not permit Niketa to abort her fetus. The plaintiff had found out only in the 24th week of her pregnancy that the fetus had a congenital heart block. She was told by doctors that the child would need a pacemaker right at birth and the quality of its life would be poor.

The health minister, who has been busy with far more contentious issues like actors smoking on screen, is of the opinion that this "one case is not enough for the health ministry to decide on an amendment on the law." The amendment would allow for abortions beyond the 20 week moratorium in cases like Niketa’s, in which medical conditions with regard to the fetus become evident only at later stages of the pregnancy.
The petitioners had also contended that their middle-class background would make it economically difficult to provide for the pace-maker every five years. With absolutely no state support for special needs children, and in a country where income disparities and unequal access to medical and health facilities are so glaringly evident there are many, including gynecologists, who are pressing for a change in the law, especially in the context of those grossly ill-informed and/or misinformed on what it entails once the child is born.

On medical grounds too, there are many who claim that the risk to the mother in case of termination of pregnancy at 25 weeks is not significantly higher than the risk at 20 weeks.

Abortion has been legal in India since 1971 under certain conditions, most of which relate to the health of the fetus and the pregnant woman and some other extraneous conditions. Abortion continues to be a very tricky issue in the Indian context of sex-selective abortions. But it is important to understand that sex-selective abortions are a phenomenon that grew more out of the ability to know the sex of your child and not from the right to legal abortion. And it is this constant attempt to mix the two arguments that finds pro-choice activists and woman’s rights organizations having to tread carefully while working to create a space for contraception, abortion and a simultaneous intolerance to sex-selective abortions. Moreover, with the knowledge of the gender of the child available through a variety of techniques and definitely by the 20 week cut off period for a legal abortion (if not earlier), the argument that such an amendment could be abused by those attempting to engineer a male heir hardly stands.

A case that is bound to swing between the spectrums of personal trauma and ethical issues, the judgment directly affects the question surrounding certain complications of the fetus that show up only in later weeks (between the 22nd to the 24th), and since abortion at this stage is illegal, medical practitioners refuse to abort the child forcing couples to turn to quacks, potentially endangering the mother even further. Using the argument that medical experts did not express any "categorical opinion that if the child is born it would suffer from serious handicaps," the court chose to dismiss the plea affecting the amendment of the medical termination of pregnancy as well. The hospital, which once was willing to give a more direct opinion to the parents-to-be, obviously was not willing to take responsibility for an opinion which is bound to change the law itself. The court went on to state that had the couple approached even before 20 weeks it would not have been possible to allow abortion, as the medical opinion was contrary; an irony indeed in a country where over 10 million fetuses–all female–have been aborted in the last two decades at the rate of 500,000 a year.

Even though the government and the judiciary may think differently, there are many in the medical fraternity who have supported this couple in their decision and the need for an amendment. Quite aware of the Pandora’s box the issue is bound to open up, the gynecologists, many of whom are members of the Federation of Obstetric and Gynaecological Societies of India (FOGSI, which is affiliated to the International Federation of Obstetricians and Gynaecologists) and have aligned behind this couple and others who might find themselves in a similar situation and believe that the time has come to change the 1971 Act. 

An argument meant to empower women and their bodily sovereignty can so easily be held hostage to emotive arguments even as the state is able to do little to stop the abuse of the same law when it comes to sex-selective abortions. While a feminist discourse on procreative liberty is as much about the right to avoid reproduction as the right to reproduce, statistics reflecting the abuse of this choice in India carry the danger of hijacking the argument and consolidating opinion among those who oppose abortion access. And even as the discourse continues a personal decision eventually became a legal battle for a woman who was unsure of the quality of life she could ensure for her child once it is born.

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  • marysia

    I am saddened by the seemingly uncritical way with which many prochoicers stand behind abortion on the grounds of fetal disability. 

    No matter what bright line folks try to draw between the unborn and the already-born….this type of abortion arises from and serves to legitimate discrimination against us already-born disabled people.  Not to mention that it takes the lives of unborn disabled people.  And it doesn’t exactly make those of us who escaped being aborted feel welcome here.

    This mother’s seeking of an abortion should be a rallying point not for the "right" to further prenatal elimination of us impaired folks, but for real respect, expressed in comprehensive, thorough social welfare programs, for the rights of all us disabled people to life, and the fullest life we each can live.





  • invalid-0

    late-term abortions are performed on fetuses who are more than disabled. A specialist has determined the fetus has a condition which is “incompatible with life”. A condition which will result in the fetus being either stillborn, or dying soon after birth. An example would be anencephaly(spelling?) where the forebrain fails to develop and is replaced by fluid in the skull. A fetus with that condition has NO “chance at life”.
    As one with a disabled cousin (she has CP) I also wish there was an adequate safety net for the disabled, but the current occupant of the White House and many Republicans don’t seem to believe in helping the already born pull themselves up. Unless they are corporations.
    (FYI: I used to post as “ruthless”)

  • invalid-0

    >>casting a fetus’s chance of being born without a significant handicap as “very fair” when the doctor intended to write “very few”

    If I recall correctly, the unborn child had complete heart block – which, while serious, is not fatal. I know, my own unborn son is being monitored for the condition since his mother has Sjogren’s Syndrome, which can cause fetal heart block in unborn babies.

    This condition is treatable, though it can be fatal, and is no reason for an abortion. It’s just a shame that the writers on this “unreality” blog believe it is…

  • marysia

    hi, poster formerly known as ruthless (:

    i think the abortion even of children whose medical conditions are so serious and lifethreatening raises ethical questions parallel to the euthanasia of already born kids who are terminally ill.

    and why should those of us who oppose and resist the priorities and values of the current administration turn to or endorse active lifetaking  instead of care for all lives no matter how long or short they are with us?  taking and impairing lives is *their* shtik.

  • deepali-gaur-singh

    Marysia and MargaretSangerWasFramed…firstly thank you for framing this post within the realm of disability politics which is as important an issue as any other and cannot be sidelined. Of course, there is a need to press for better facilities from the governments of the day for differently-abled/persons living with disabilities and this particular case was certainly not meant as a solution to the government’s apathy and inability to provide for state care and facilities for such/any groups and communities. And it definitely needs to be brought into the ambit of this discourse. My point is that if the woman’s bodily sovereignty conflicts with the rights of certain groups and becomes discriminatory towards some then there is a problem with the law and its provisions, there is a disconnect somewhere.

    Due to the extremely wide socio-economic, education-related and associated disparities the abortion law is understood, used (and abused) differently by different people. The merits/demerits of this particular case (cited in the post) aside it really points to shortcomings in the existing abortion law.


    Ruben, while I completely respect your personal choice with regard to your pregnancy I just believe it is unfair that one person’s choice should be used as an example to condemn another person’s; which really is the argument of the post…that ultimately it should be the woman’s choice to go through or terminate her pregnancy.

    Moreover, the whole idea of the ‘very fair and very few’ issue was to point to the widely divergent medical opinions and the fact that even medical opinion becomes shaky when issues move to the legal domain.