Justice Aborted

The feeling of nausea followed by a bout of vomiting may bring joy only in one case, when it indicates pregnancy to someone who wants it. Seema, 37, a working woman from Alibaug, Maharashtra had waited for years for this moment. Not relying on the test device in her bathroom, she had later gone to her doctor for confirmation. It was September 2016, and she was four weeks pregnant.

Life truly changes after such an announcement. Seema’s husband insisted he would accompany her on her grocery shopping errands, so that she doesn’t lift anything heavy. Even her mother-in-law asked her to spend less time in the kitchen, and sleep more. The mother-in-law had had her first son at 22, and Seema was now 37. A well-meaning colleague advised Seema to go for tests to check the well-being of the foetus. Older the mother, higher the risks, the friend thought, but didn’t say it aloud.

Prenatal testing is expensive in India, but Seema decided to spend the money – this would probably be the only child they would have. She wanted to make sure everything was all right. Certain foetal defects can be identified only after 12-15 weeks. By the time the Alibaug doctor advised Seema to get additional tests done at a Bombay hospital, it was mid December, and she was 15 weeks pregnant.

At KEM hospital in Bombay, Seema underwent Amniocentesis, an invasive procedure to diagnose any foetal infections or abnormalities. After 15 weeks, the risk of a miscarriage is minimum. Identifying the gender of the foetus is illegal in India. Seema had to sign many additional forms, since an Amnio test can easily identify the child’s sex. For Seema, a son or a daughter was equally welcome. In fact, she didn’t want to know the sex of the foetus at all.

In January, after several additional tests, the KEM doctors confirmed the foetus was diagnosed with Down syndrome.

Seema and her husband spent two weeks, two critical weeks as it turned out, in trying to understand what the diagnosis meant. It meant their child would have a low IQ, different facial features and its physical growth would be delayed. Risk of other health problems such as a heart defect and mental disorders was higher. Their child would be disabled at birth and forever. Down syndrome was not curable. After debating day and night, the family agreed Seema should opt for an abortion.

On 20 January, 2017, when they talked to the KEM doctors once again, the doctors said Indian law prohibited an abortion after 20 weeks. A woman, more than 20 weeks pregnant, must apply to the court to seek permission for abortion.

Seema and her family had never been to any court. After talking to friends, they finally found a not too expensive lawyer named Colin Gonsalves. Colin advised the couple to approach the Supreme Court. The case needed quick disposal. Seema’s journey, begun in her small home town, had taken her from a Bombay hospital to a court in Delhi.

This was a case where no crime was committed. A pregnant woman was merely asking the court’s permission to abort her foetus diagnosed with Down syndrome. However, Colin Gonsalves, Seema’s lawyer, had to confront the Indian government’s Solicitor General Ranjit Kumar whose function was to oppose. Ranjit Kumar pointed out that the foetus inside Seema’s womb was a life, and what right did the court have to kill a living being? Doctors had confirmed there was no danger to Seema’s life, she could deliver smoothly. And people with Down syndrome, though with low IQ, could lead a life in their own way.

Colin Gonsalves argued that the 20-week limit was pedantic. Many countries in the world put no such restrictions. In India, annually 3% of the 26 million births involve severe foetal abnormalities (including 35,000 with Down syndrome). His client, Seema, wished to terminate her pregnancy and as a mother, she should be the one to decide.

On Monday, 27 February, a two judge bench of the Indian Supreme Court consisting of S.A.Bobde and L.Nageshwara Rao, gave its verdict.

“It is sad that the child may suffer from physical and mental challenges and it’s unfortunate for the mother, but we can’t allow an abortion. We have a life in our hands and we are also tied down by a law.”  

*****

Seema was heartbroken at hearing the verdict. However, her lawyer comforted her saying he has requested the Supreme Court to allow another urgent hearing. The Indian government has proposed a bill (Medical Termination of Pregnancy Amendment Bill of 2014) which provides that the length of pregnancy shall not apply to abort a foetus diagnosed with substantial foetal abnormalities as prescribed. If that bill had been passed, this case might not have come to the court at all. Based on that proposed bill, Colin Gonsalves challenged the 20-week law. He requested a single hearing urgently at the Supreme Court. He was confident the court would see the 20 week rule as arcane and allow Seema to go ahead with the abortion.

Supreme Court indeed responded promptly. On Wed. 1 March, Supreme Court’s Chief Justice J.S.Khehar said, “there are very important national issues which are in queue. The court will take up this hearing only after the summer vacation.”

Before the Supreme Court summer vacation ends, Seema (note: not her real name. R.) will deliver her baby. She will need to take care of her unwanted, disabled child for the rest of her life. In a case involving no crime, the plaintiff herself was sentenced for life.

*****  

Analysis

The Sanctity of Life

How does the foetus suddenly acquire life at the end of the 20^th week of pregnancy? Does the Indian government offer a passport to the foetus at that stage? The law must move in line with the medical progress. If certain deformities or disabilities can be diagnosed at a later stage of pregnancy, do the judges have the right to thrust that child on the family? Particularly, if the mother wants to not have the child?

In the past, the State and the judiciary didn’t wish to interfere with Nature. Religion was the foundation of society. Life could not be taken just as it could not be given. It was the sole prerogative of God or the Unknown. Contraception was the first big interference with Nature. And in the 21^st century, artificial fertilisation is becoming common. I know several couples who have delivered twins or triplets thanks to medical advances. Those twins and triplets, though natural human beings, are not God’s product. It’s possible that one hundred years from now, most children would be born this way, by a careful mixing of sperm and eggs in a laboratory. (Eugenics, the science of genetic engineering is taking big strides. Humans can be bred the same way as poultry; in a biologically engineered, not completely natural process).

Conservative anti-abortion leaders (e.g. George Bush) talked about defending the rights of foetuses from the time of conception, at the same time sending drones and dropping bombs to destroy thousands of civilians.

A World without Down’s syndrome?

In 2006, Denmark introduced routine screening for Down syndrome. In 2011, NIPT (non-invasive prenatal test) that can detect Down syndrome based on a drop of blood from the pregnant woman was launched in Europe. In EU countries, a Down syndrome child may cost up to 2 million Euros to public health care. It is more economical to abort them. Iceland, UK and Denmark have a 90%+ abortion rate for Down syndrome foetuses. Iceland has not had a single DS child in the last five years.

Last year, in October 2016, Sally Philips, an English actress (Bridget Jones and Miranda) made a 56 minute film for BBC titled “a World without Down’s syndrome?” Her son Oliver has Down syndrome. She adores him, and is shocked at the notion that Down syndrome can be a reason for abortion. After the documentary, American and European newspapers wrote editorials asking whether the world would be the same without people with Down syndrome.

The point they miss is that once the disabled child is born, of course, the parents love it, take care of it, and with time get more and more attached to it. However, raising such children is exhausting, difficult and expensive. Philips can afford to hire a live-in nanny for Oliver as she herself admits - most low income families can’t. In the 1980s, the life expectancy of a Down syndrome child was 25 years, now it is around 60 years. In most cases that means the parents having to worry about the child beyond their lifetime.

In India, where there is no concept of State welfare or support, it is unconscionable for Supreme Court judges to force an unwanted disabled child on a mother by hiding behind a law.

Religious fanaticism

The Republican Party of the USA encourages guns and would like to minimize or ban abortions. In Europe, the catholic nations of Poland and Ireland make abortions difficult to impossible.

You may recall the case of Savita Halappanavar, a 31 year old dentist in Ireland. In October 2012, a 17-week pregnant Savita developed back pain, was taken to hospital and understood that miscarriage was inevitable. She requested termination of her pregnancy, and was told it was legally impossible in Ireland. Savita, a medical professional herself, begged for an abortion, but until the foetus breathed even faintly, it couldn’t be done. The same week, after delivering a stillborn girl, Savita died due to sepsis – something that could have been avoided with timely abortion.

Sex selective abortion

China and India have the worst record of female foeticide. Only this week, 19 aborted female foetuses were found buried near a hospital in my state. The historical importance given to a male child in patriarchal societies is responsible for this. China’s one-child policy has contributed to it.

India has rightly banned sex-determination tests. Sex-selective abortion, in my view, is different from a deformity or defect related abortion. In this debate of pro-life vs. pro-choice, the freedom of a pregnant woman can’t include the freedom to abort a foetus simply because it is a girl (or a boy).

This is because gender balance is part of nature’s design. Deformities and abnormalities represent nature’s imperfection, not design.

What about the child’s choice?

Finally, an important question. If we could ask the child whether he/she would like to be born with Down syndrome, what would it say? I know it’s hypothetical. However, if you believe in reincarnation, would you like to be born in your next life with Down syndrome or some other abnormality? The Supreme Court judges should have asked themselves that question before delivering the verdict.

Ravi