The travails of Niketa and Haresh Mehta, the couple whose plea to abort their over 20-week-old foetus was turned down by the Bombay High Court, have focussed attention on the need to update the law governing the termination of pregnancy. The couple, who approached the court after discovering the foetus had a congenital heart block, feared for the quality of the life of the child, who will need a pacemaker to survive. The Medical Termination of Pregnancy Act 1971 permits the abortion of foetuses only up to 20 weeks, a limit imposed because anything longer was considered a risk to the mother. But medical advances have come a long way since this Act came into force. First, abortions performed under proper medical care and with due procedure are not necessarily unsafe when conducted at later stages. Secondly, foetal abnormality — one of the reasons for permitting abortions between 12 and 20 weeks in India — is much more detectable today thanks to a clutch of modern prenatal diagnostic techniques. Sometimes, a firm diagnosis of certain abnormalities is not possible before 20 weeks are over. In rejecting the plea of the Mehtas, the High Court was going by the letter of the law; it is too much to expect courts to do anything else, particularly in cases where medical opinions diverge, as they did in this case.
The Mehtas must be commended for trying to resolve a very human problem straightforwardly, by going to court. While they have lost their cause, their petition has succeeded in bringing an important issue out into the open — isn’t it time the 37-year old abortion law was amended progressively? In the United Kingdom, medical termination of pregnancy is allowed up to 24 weeks. In May 2008, the British Parliament rejected a move, spearheaded by the Conservative opposition, to lower the limit to 22 weeks. The Netherlands also has a 24-week limit while in Canada — where abortions are treated like any other medical service — there are no limits at all. By and large, the Indian medical fraternity has weighed in for relaxing the limit, with sections advocating some flexibility in reviewing individual cases. Union Health Minister Anbumani Ramadoss has promised to conduct a broad discussion on abortion laws and proximate ‘grey areas’ after which a decision could be taken. While the existing abortion Act is clearly out of sync with medical advances and changing social perceptions of quality of life issues, any amended law must have strict and transparent mechanisms to assess foetal abnormality. There must also be checks to see it is not abused, particularly in the cause of son-preference, which is pursued in India and East Asian countries through the awful practice of sex-selective abortion.