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 20th 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
21st 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