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Is it for the Court to Decide Whether to Abort a Fetus or not?

The issue of abortion has strong psychological and ethical overtones, but the legal implications cannot be overlooked. The law has a role to play in deciding whether a parent can abort a child or not. Such has been the case in the latest abortion issue involving the Mehtas- Haresh and Niketa.

The Mehtas were keen on aborting the fetus, which was 25-weeks old as they felt that the child would be born with congenital heart blockages and arteries that were mal positioned. The doctors felt that a pace-maker could have to be implanted into the child soon after the birth. But their desire remains unfilled. The Bombay High Court dismissed the plea because the Mehtas could not make a strong enough case. The court did not permit the Mehtas to take a life.

This decision of the court had serious implications as far as the Mehtas were concerned. They felt giving birth to a handicapped child caused much unhappiness and by aborting the child, they were preventing the child from suffering.

The decision of the High Court may not have been much help to the Mehtas, but it definitely has raised many questions among conscious citizens. Many felt that the Mehtas should have been permitted to abort. After all, they felt that abortion was no longer a taboo, and the parents had a right to decide what is good for the future of the child. The opinion held was that one should change with the times. Societal values have changed and medicine has advanced as well. Naturally, such laws, which were enacted under different circumstances, need to be changed. Of course, some who believe that abortion is morally and ethically wrong did not support the Mehtas in their decision to abort.

Several international human rights treatises state:

“The child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before birth as well as after birth.”

The U.S. and several other countries have explicit obligations to protect unborn life. The United States is a signatory without any reservation to “the legal protection of a child before birth” It states that, “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception.”

Even the Parliament in Britain spent hours debating the abortion issue. The question was whether a woman had a right to choose or whether the fetus had a right to live. The decision was either to decrease the abortion time period to twelve weeks of pregnancy or to increase its limit to 28 weeks, which is what it was before 1990. Neither was decided upon. The House favored status quo, keeping 24 weeks as the maximum age for the fetus to be aborted. The debate was influenced by progress made in the medical field. Even the tiniest babies born prematurely at only 26 weeks gestation and not weighing more than 800 grams could survive.

British Lobbyists demanded that the abortion time period be increased to 28 weeks, so parents could decide whether to have the child or not in the event that it could be born with physical and mental defects. Parents could decide the future of their baby, whether he or she can lead an abnormal life.

The Mehtas felt the same way. They did not want their child to lead an abnormal life. As parents they were concerned about the future of the child. They approached the court for relief, but got “no” for an answer. To this approach of the court, the Mehtas reacted rather emotionally and felt they could have gone to the “quack” as many do, rather than knock on the doors of the court. They now have the choice of appealing to the Supreme Court.

The experience has been traumatic for them. Gynecologist, Dr.Nikhil Datar felt it was good that such an issue had been debated upon. It brought into focus many issues concerning abortion and made people aware of the problem. Women, according to him, go through much stress during pregnancy, and then to find that the child will be sick after birth adds to the stress.

Of course, medical opinion about the Niketa’s baby requiring an operation immediately after birth varies. Dr. Bharat Dalvi, pediatric cardiologist, practicing at Breach Candy Hospital and Nanavati Hospital, commenting on congenital heart blockages, feels that there are two possibilities.On one hand, one can hope that the child will have no symptoms and life would be normal. On the other hand, the child may face several problems such as difficulty breathing, difficulty in feeding, etcetera. Dr. Swati Gharekar, paediatric cardiologist, Wockhardt Hospital, feels that the child could develop a leaky valve at any stage. She further states that a pacemaker may be required at birth.

Whatever may be the medical opinion and whatever the court may declare, the fact remains that the Mehtas are the people who are undergoing and will undergo the trauma of bringing up a child with deformities. Whether their decision to abort the child can be justified on moral or ethical grounds, the question that arises is whether the existing abortion laws prevailing within the country appreciate their perspective, that of giving birth to a child who cannot fend for himself or herself. The child, if born with physical or mental defects has to live life and face harsh realities that he or she cannot manage on his or her own.

In the US, the Supreme Court ruled that a pregnant woman had the right to abort in the first trimester of pregnancy. It regulated the procedures in the second trimester depending upon the health of the mother. In the third trimester, the state cannot prescribe abortion, exception in the case of preserving life or the health of the mother”.

In 1973 the U.S Supreme Court also ruled that it was unconstitutional for state laws to declare abortions up to three months of pregnancy as being illegal. Up to three months of pregnancy, it was for the woman and her doctor to decide whether abortion should be carried out. Opinions varied whether a woman should be given a right to abort a child at all times or whether the law could regulate such an act.

The right to choose life or abortion will continue to be a debatable issue in the courts. It will continue to be so in one direction or other as attitudinal changes take place.

 

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