“Miss X”, a rape victim, was 22-weeks pregnant when she approached Nikhil Datar, a Mumbai-based gynecologist, through an NGO.
She wanted to terminate her pregnancy since the foetus had developed severe anomalies, but none of the doctors she went to, agreed to carry out an abortion.
According to the law, it is illegal to terminate a pregnancy after 20 weeks, barring in specific conditions when such a procedure can be allowed based on the opinions of two registered medical practitioners.
Miss X had challenged the constitutional validity of the 20-week ceiling, stating that she had come to know of the abnormalities in the foetus only after the specified time period.
Datar, the Medical Director of Cloud Nine Hospitals in the city, is also a health activist who has worked with and assisted women in similar situations.
With his help and advice, Miss X moved court and earlier this week, the Supreme Court, in what is said to be a landmark judgment, allowed her to terminate the abnormal foetus on the grounds that if she continued with the pregnancy, it would gravely endanger her physical and mental health.
Miss X benefited from the exception under Section 5 of the Medical Termination of Pregnancy (MTP) Act, 1971, which states that a woman can abort her foetus after 20 weeks if it is "immediately necessary to save the life of the pregnant woman".
Supreme Court of India
"In her case, there was no ethical, and medical issue. The only hindrance was legal," says Datar.
Calling the apex court's decision, a "progressive" one, he says, “If the same foetus is allowed to be aborted before 20 weeks, what difference does it make if it is terminated in the 21st week? The 20-week restriction is an arbitrary limit which, medically, makes no difference."
Datar goes on to explain the concept of foetal viability or "the potential capacity of individual survival". Simply put, it is the ability of the foetus to survive outside the womb.
In UK, the foetal viability is 24 weeks and abortions are restricted after that unless there are serious abnormalities in the foetus. However, in India, there is no clear definition of foetal viability.
It can range anywhere between 24 to 28 weeks. "If at all we want to put a norm," he says, "it should be based on foetal viability". This can be done only at the policy level, he adds.
Image for representation
He is also against what he calls a "mixing up of issues". "When we speak about abortion, people mingle so many issues including pro-life, pro-choice and disability issues. We are not talking about whether abortions should be allowed or not. That was already decided by the Indian Parliament way back in 1971 when the MTP Act was passed. We are only debating the question on 20 weeks’ arbitrary limit. Those who believe in pro-life ideology will never approach the doctor for abortion whatever be the situation and that has to be respected. But that also does not mean that we shut doors for those who have contrary beliefs."
The cases he has assisted in
It is unfair, he feels, to make women run pillar to post, that too when they are pregnant. A very few are able to move the court, and many a times women are forced to carry the foetus to term, even after knowing the risks.
While Datar did his post graduate in gynaecology and obstetrics, he got increasingly interested in ethics and health rights and got a degree in law out of passion. This, over the years, has helped him in consulting patients facing related issues.
A woman, whose family has been consulting him for several years now, approached him when she was 18-19 weeks pregnant. Datar asked her to get a sonography done as soon as possible. However, there was a delay, and she got it done in her 22nd week.
The results showed severe abnormalities in the foetus and no practitioner would agree to an abortion. So, was the case with Datar. "I was ethically and morally with her, but not legally."
The woman had no choice but to continue with her pregnancy and her child was born with several abnormalities- the baby was paralysed, could not talk or walk.
“I noticed the absurdity in the law. And rather than trying to do things the illegal way, we should change the law,” he thought.
So in 2008, when Niketa Mehta, who was facing a similar issue, approached Datar, he not only advised her, but also became the main petitioner in the case. "I was then prepared and well-equipped."
Niketa, whose baby would have had multiple heart anomalies such as transpostion of great vessels and complete congenital heart block, approached the court when she was 24 weeks pregnant. But the Bombay High Court turned down their application seeking abortion. Shortly after, in her 27th week of pregnancy, she suffered a miscarriage and lost the baby.
Niketa Mehta, with her husband Haresh, after the HC rejected their plea. (PTI Photo)
What Niketa faced is a dilemma that many women across the country face.
The next case Datar was associated with was that of "Miss X" and "Miss Y"; he guided the women in their respective cases.
Miss Y’s problem, he says, was more complicated in nature.
She was close to the 20-week limit when it was found that the foetus had some deviations from normalcy. The result could be read in both ways – it could either be potentially serious or absolutely normal. But doctors could confirm it only after two or three weeks, long after the 20-week limit.
It was Miss Y's first pregnancy and she had conceived after undergoing several treatments.
"That fear factor led her to undergo an abortion immediately. When the results of the medical investigation came out, it stated that the baby would have been fine," Datar says.
Will an amendment in the law help?
"She was a victim of the law. It denied her the opportunity to take a well-informed decision. This fear is making many women take hasty decisions. Taking ill informed decision with insufficient information is akin to taking risk. And nobody will like to do that with one’s own child," he says adding that if the law is amended, it can actually bring down abortions rates. "People can take well-informed decisions; they can plan and come to a conclusion."
Following the SC's decision, the Centre has warned against any relaxation of the 20-week limit stating that the law is equipped to deal with situations involving complications in pregnancy. The AG, as reported by TOI, said, “In India, female foeticide and infanticide are very big problems. Any relaxation on foetus abnormality to permit abortion after 20-week period would be prone to misuse."
Datar counters the government's statement saying that "sex-selection" is a different argument altogether.
"I won't buy this argument. Most people, who are more than 20 weeks pregnant and want an abortion, do so because the foetus has some serious problems. On the other hand, if someone just wanted to know the sex of their child, they will do it at the earliest. The sex of the foetus can be determined as early as 12 weeks," he says.