Niketa and Haresh Mehta challenged India's 37-year-old abortion law when they decided that they wanted to abort their 24-week foetus that was detected with a congenital heart block. Now with the Bombay High Court disallowing the procedure, the nation is faced with a dilemma. But in our minds, this is a classic case of the State overreaching its mandate. Considering that the State is unwilling — and not in a position — to take care of the to-be-born child, should it be forcing the parents to have the baby against their will? According to the Medical Termination of Pregnancy (MTP) Act, a pregnancy cannot be terminated after the 20th week unless there is a health risk to the mother. In this case, of course, it is the child-to-be-born’s health that is at risk. The court’s verdict comes after a medical panel told the Bench that there is little chance that the child will be born handicapped because of the heart defect. Earlier, however, doctors had said there was a “fair chance” of the child being born with a congenital handicap. The parents decided that they did not want a child to be born with a risk of having the defect. And we think that, in the end, it’s the parents — not the State — who should decide on this important matter.
While there are arguments in favour of the right to life, the Mehtas’ view on the issue cannot be discounted. If the child is born with a defect, it is the parents, the primary caregivers, who would have to endure the huge emotional and financial burden. Since India has no social structure to provide lifetime support to such citizens (or to-be citizens), it is unfair to force this kind of decision.
The other argument is that if the Mehtas are allowed their way, it will open the sluice gates for the demand for ‘perfect babies’ — whatever the definition for ‘healthy’ babies may be. But the point is that such a decision — so long as it doesn’t come into conflict with the anti-female foeticide law, which the Mehta foetus overrides — is still a decision to be taken by the parents, not the State. It is easy to be self-righteous when one is talking about the relative abstractions of the law. It’s another matter when a child — yet to be born — is made to stand as an example for the law.