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| Edited By: Maitri Porecha |Source: DNA |Updated: Apr 23, 2018, 04:46 PM IST
When 26-year-old Meera was informed that her unborn child had anencephaly, she was heartbroken. The neurological condition, where a major part of the brain, skull and scalp is missing, occurs during embryonic development and leaves little to no chance of survival.
Six months ago, 18 weeks pregnant, Meera walked into a government-run hospital in Mumbai asking for an abortion. However, lacking the right resources and facilities, the hospital turned her away.
By the time she approached another government hospital, Meera had crossed the 20-week abortion deadline made mandatory by the Indian law. The Medical Termination of Pregnancy (MTP) Act, 1971, states that a woman cannot have her foetus terminated after crossing a gestation period of 20 weeks.
Following this, at 23 weeks pregnant, Meera moved to the Supreme Court (SC), where she was granted a special permission to abort her foetus.
Abortion pleas take roughly a month to be sanctioned. Parallelly, a woman's biological clock keeps on ticking by the second nearing the 20-week deadline. And once the SC realised this last year, it instructed women with similar pleas to seek respite from their local high courts.
While the favourable move is the product of a long struggle, the fight is far from over. Fully aware of this, Mumbai-based Dr Nikhil Datar is helping to-be mothers challenge the 20-week window in court.
Dr Datar sheds some light on similar complicated cases in court. "Meera's case is only one among four that were awaiting verdicts with the potential to make or break their lives. A Pune-based woman's foetus also had anencephaly. At 21-weeks pregnant, a rural woman's foetus had a complex heart condition. In another case, a 23-week-old foetus has aqueductal stenosis, which leads to fluid accumulation and thinning of the brain tissue," he says.
Since 2008, Dr Datar has helped 10 women knock the doors of court for justice. "Last July, the Kolkata High Court allowed a 25-week pregnant woman to abort her baby. The foetus was suffering from pulmonary atresia, a condition where vital vessels supplying blood to the lungs are absent. It has taken us several long years of judicial activism to make the act favourable to women. Yet, the law stands unchanged as of date," he laments.
In her 23rd week of pregnancy, Nikita Mehta from Mumbai, whose unborn baby was suffering from a heart anomaly, approached gynaecologist Dr Nikhil Datar for an opinion. "I genuinely felt that it was not right to pressurise a woman to continue the pregnancy under the circumstances," recalls Dr Datar, who approached the Bombay HC seeking justice for Mehta. But they didn't rule in her favour.
Eventually, in her 27th week of pregnancy, Nikita suffered a natural miscarriage and the baby succumbed in her womb. "For any woman to go through such trauma is inhuman," rues Dr Datar, adding that in the West, abortions in such cases are permitted up to the 36th week of pregnancy.
Nine years have passed since Mehta's miscarriage. Nikhil Datar versus Government of India case, a Special Leave Petition (SLP), is still pending with the Supreme Court. Since then, there have been sweet and sour spots in the journey of seeking respite for women struggling to abort pregnancies that have gone beyond 20 weeks.
In 2009, Mrs X and Mrs Y, came in the limelight. At that time, both were suffering from pregnancy-related complications. Mrs X's 24-week old foetus had developed anencephaly, but she had decided against challenging the law in court. She delivered the baby. It died after barely a few hours. It was then that Mrs X regretted her decision of going through the full term. Had the laws been different, she would've been saved from the stress and trauma.
On the other hand, in Mrs Y's case, it has been over four years since she got her unborn foetus aborted, but memories of that day are still vivid.
Mrs Y spoke to DNA under the condition of anonymity.
Deep in the corner of her cupboard are buried all her scan reports of her first pregnancy. "In the 19th week, the scan and foetal MRI showed a motor-skill defect in baby's brain — it was a big shock. Our dreams were shattered," she remembers the feeling and her voice swells up reminiscing. "It was the fifth month of my pregnancy and the baby had started kicking." She had an abortion before the 20 weeks of gestation period. "The confirmatory genetic tests — amniocentesis, would've taken two-three more weeks to arrive. By that time, I would've crossed the 20-week abortion deadline. The law forced me to take a hasty decision with inadequate information."
To prevent other women from suffering through such similar trauma, she challenged the arbitrary nature of the 20-week limit on abortion in Bombay HC. "The legal process has no consideration of a woman's mental state and this should change," she says.
Cases of Mrs X and Mrs Y have been tagged along with SLP of Nikhil Datar versus the Government of India. These are pending for a hearing in the Supreme Court, the original petition being nine years old now.
In 2009, a committee under the then Union Health Minister Dr Anbumani Ramadoss and the then Secretary of Ministry of Health and Family Welfare Naresh Dayal, and Indian Council of Medical Research (ICMR) chief Dr NK Ganguly, were open to raise the limit for abortion from 20 weeks to 24.
"The Act is quite old. It is important to look at it from a modern perspective. Many parents may not like to go through the pain of watching their child undergo multiple surgeries for congenital defects," Ramadoss had said in 2008. "The experts will study new scientific findings and abortions laws in other countries."
Years passed and the committee report had not been made public. When the National Commission of Women (NCW) wrote to government stating that the law needs to be changed that the pressure was felt.
In October 2014, the Union Health Ministry published the draft of the amended bill raising the limit of abortion from 20 weeks to 24 in all cases, and permitting termination beyond 24 weeks in the case of fatal foetal problems.
In 2016, an NGO brought a rape victim in her 24th week of pregnant to Dr Datar — her foetus had anencephaly. Dr Datar helped her appeal in the SC. In what was the first landmark decision of SC, it transgressed the 20-week deadline for abortion and allowed the termination of pregnancy. "After this, two more favourable verdicts were secured in case of rape victims from Delhi and Gujarat," informs Dr Datar.
But the tides turned. Few months ago, SC shot down appeals of two to-be mothers carrying babies with Down Syndrome, which leads to mental retardation and Arnold-Chiari Syndrome Type II (ACHSII). One of them, a 27-year-old woman from Mumbai, ended up giving birth to a child with its head swollen up like a big ball and a malformed spine. In another instance, a 17-year-old girl from Pune was abducted and raped. When her father appealed for abortion in Bombay HC during her 26th week, the HC turned him down.
For a pregnant woman, the process, which begins with an appeal until the judgement arrives, is long-drawn and spent in nail-biting anxiety. "Drafting the petition, submitting it, court holidays, mentioning of the case, hearing, constituting a medical board, examining the patient, board report and final verdict — all of this takes a huge amount of time," says Dr Datar.
Demands for amendments in the MTP Act have been long pending. Especially amendments related to the extension of the deadline to 24 weeks and special cases of an anomaly.
Proper guidelines ought to be followed when terminating the foetus at advanced stages — seventh or eighth month of pregnancy, says Dr Duru Shah, Member of Ethics Committee of International Federation of Gynecology and Obstetrics (FIGO). "The pain fibres of the foetus develop in the last two months," explains Dr Shah. She cautions doctors to be careful that the baby is not born alive. "This would pose an ethical dilemma. If the baby comes out of the womb alive, do you resuscitate the baby or not? Would you let the baby die a natural death slowly?"
It is a contentious situation. Doctors have to make sure that they induce injections in the womb to stop the baby's heart from beating inside the womb, so that the aborted baby is not born alive, she says.
Bangalore-based Dr Devi Shetty, a prominent paediatric cardiologist, has been actively campaigning for a deadline extension in case of terminating pregnancy for two years now. He recently noted in the case of a Kolkata-based woman carrying a foetus suffering from pulmonary atresia. "The baby had a complex heart disease and unfortunately wouldn't survive beyond a few years."
He examines close to 20 children per day, many of whom are bound to die within five to ten years. "Detecting heart and brain problems in foetus is difficult at 20 weeks of pregnancy. These become more apparent as the foetus grows after 20 weeks. Hence, the appeal to extend the deadline," he says.
"The government must amend the law and create awareness amongst women to demand abortion. In countries like Canada, abortion is allowed at any stage. If the child has no future and the quality of life is predictably poor, abortion should be routinely permitted by law."
*Names changed on request
