The Imagined Universe

Like everyone else, I have been reading about the Niketa Mehta case and feeling quite disturbed about it. I also read a few blogs with different opinions on the topic (Mad Momma, Soumya, Maami, Prerna).

The background – Niketa Mehta approached an Indian court for permission to abort her 26 week old foetus which has a congenital heart defect. The Court did not permit the abortion.

To start with, let me summarize everyone’s arguments for and against abortion in this case.

The arguments for aborting the 26 week foetus:

1. The foetus has a congenital heart defect that would require a permanent pace maker. This may or may not disable the child for life depending on which version of the same hospital’s report you believe.

2. The treatment for the disease is expensive. The pacemaker costs Rs 1 lakh and would have to be changed every 5 years.

3. The child would have to undergo some amount of suffering throughout life. This will also cause mental anguish to the parents.

The arguments against abortion in this case are:

1. As per current Indian law, abortions are only legal as long as the foetus is less than 20 weeks.

2. The foetus at 26 weeks can feel pain. It needs to be aborted through partial birth abortion, which is a very painful procedure (for the foetus).

3. People with congenital heart disease and pacemakers don’t really suffer or are disabled, says a 35 year old man in India with a pacemaker since age 9.

4. Performing an abortion at this stage may even pose a risk to the mother’s life.

5. The judges offered to have the government pay for the foetus’s lifetime expenses for the pacemaker. The plaintiffs rejected the offer, saying they did not trust the Government. They seemed to fear that the Government would not deliver on its promise.

6. Jaslok Hospital in Mumbai has offered to bear the entire expenses for the delivery and post-natal care of the baby. It is not clear if the offer is for the baby’s entire life, though.

There are two issues here:

1. The specifics of this case.

2. The overarching issue of whether a woman should have a right to abort her foetus if she so chooses at any time during her pregnancy, irrespective of whether the foetus has any defects or not.

The specific case of Niketa Mehta: If you look at the specifics of this case, it looks like the foetus has a choice between a painful death before birth and a perhaps somewhat painful but certainly expensive life. If the experience of the 35 year old man above is anything to go by, the child may even lead a full life despite the pacemaker.

There are people willing to pay the expenses of the child, and there are always such a thing as fundraising, so the finance issue alone should not be a cause for aborting the foetus. Is a child’s life just worth much less than Rs. 1 lakh, then? If the parents are still not willing to bring up the child, they could always give it up for adoption. I am sure there would be many (Indian and foreign) parents willing to adopt the child, or donors willing to pay for its medical expenses.

So if you look at the specifics of the case, I can see the logic behind the Court’s argument. But are they right to stop Niketa from aborting?

Let’s look at the bigger picture here.

The issue of a woman’s right to abort at any stage of the pregnancy: Then there is the issue of whether a woman should have the right to abort a foetus at any stage of the pregnancy, i.e. even if the foetus is more than 20 weeks into development. Currently, the law in India allows abortion when the foetus is below 20 weeks into development.

Twenty weeks is a long time to cover a situation where the parents are not ready for a pregnancy. It will cover teenage pregnancies, unplanned pregnancies where the parents decide they are not financially or emotionally ready. This is also the time when the foetus cannot yet feel pain.

I admire the fact that Indian laws are pro-abortion and give people a choice, and a long window to exercise that choice. In the US, the laws are highly restrictive, and on-the-ground implementation is even worse.

Twenty weeks is a long time. But twenty weeks is not enough to cover the scenario where the foetus has medical defects. Too often, defects show up much after the 20 week mark. The question then arises, if the foetus has medical defects and the woman wants to terminate the pregnancy after 20 weeks, should she be allowed to do so?

Here are the issues to consider:

The commonly raised issues:

1. The risk to the mother: Abortions after 26 weeks pose a medical risk to the mother. But then, pregnancy itself, even with a normal foetus, can pose medical risks for the mother. Then comes delivery. Normal delivery is quite painful, and Caesarian delivery is also not without its aftereffects and pain.

So the risk to the mother can exist in any case, and the risk of a late abortion is only one of the risks in the mother’s palette. Surely, as a rational adult she should be able to decide which of the risks she would rather take?

2. The issue of pain: Yes, abortion after 26 weeks is painful to the foetus. But the mother also suffers a lot of pain during this entire process. If she chooses to abort, she suffers a lot of emotional pain (and some physical pain). But even if she doesn’t abort, pregnancy and childbirth are quite painful too.

So what are we comparing – a foetus’s pain during abortion versus a mother’s pain during childbirth? Are we saying one is acceptable, but the other is not?

Are we forcing the mother to experience the pain of childbirth to spare the foetus the pain of abortion?

Let’s face it, the pain aspect is applicable to both parties, and is best left out of the picture.

The real questions to ask:

1. Who is more important, the mother or the foetus? The crux is, can we force a mother to

(i) carry an unwanted foetus to term, with possible medical complications to the mother during delivery or childbirth,

(ii) endure postpartum blues, and

(iii) post-birth, force her to care for an infant that she does not want,

all this just because we believe the foetus is a living creature and is therefore considered a citizen?

Let’s assume the foetus should be considered a fine and upstanding citizen. What about the mother then, an adult productive member of society? Whose rights are greater?

A mother makes an enormous investment in a pregnancy. She can suffer complications that last life-long (like osteoporosis), or during the pregnancy (like diabetes and hypertension). So there is a real physical cost to the mother. Let’s not even get into the aspect of risks during childbirth and complications there.

So do we ride roughshod on the mother’s rights and wishes and force her to act in a way against her interests and her desires, at a cost to her body, because “we” place a higher value on the baby’s life than the possible risks to the mother? What kind of rationale is that?

2. If the foetus is an independent entity and an individual, can this individual live outside the mother? No, of course not. Foetuses born prematurely, i.e. before 37 weeks, may suffer complications even if treated in pre-natal intensive care. Absent pre-natal care, they cannot survive as their organs aren’t developed yet.

If we continue to take the position that the foetus is an independent legal entity (even though it cannot survive independent of its mother), then extending that argument, by requiring a mother to complete her pregnancy for a foetus she doesn’t want, we are forcing her to provide prenatal care (using her own body) which is not of her own choice, and for which she is obviously not being compensated either. The question is, is that a fair and just law?

Think about it, the only other persons whom the State forces to work without compensation are prisoners.

3. The issue of individual rights versus common good:

The other issue here is that the State is also, in essence, controlling a part of the woman’s body itself. It is claiming that it has overarching authority to decide on a part of the woman’s body. This is the scariest part. Where do an individual’s rights begin and the State’s rights end?

If the woman delivers the baby and immediately gives it up to the State for adoption, what she has done, in a way, is to rent her womb to the State.

If the State can force a woman to use her uterus to carry a baby she does not want, where can this slippery slope lead to? Can we, then, see any of the following scenarios happen in the future?

1. Can prisoners (especially those imprisoned for life) be forced to donate blood or body organs (one kidney, portion of liver) to save the life of a patient in a government hospital?

2. Can women prisoners be forced to rent their wombs to act as surrogate mothers? Or can the State attempt to harvest eggs from prisoners?

These arguments may seem far-fetched right now. But I can see arguments beginning with “common good” being made for each of them. Argument #2, for instance, can be made in countries with low fertility rates and declining populations, while Argument #1 can be made anywhere.

My conclusion: Women are rational creatures. No woman wants to abandon a foetus unless there is some compelling reason for her to do so.

Given this logic, if a woman wants to abort her foetus, the State can reason with her, offer her financial incentives for keeping the baby, offer free medical support if there are complications and offer to help with adoption of the baby. The State can try to change the woman’s mind by addressing whatever issues the woman may have. If the foetus is viable, then the State can bear the expenses and medical care for delivering the baby and treatment for the premature baby.

But the State has no right to force a woman to put all her energy and her life-blood into bearing a baby that she is strongly against carrying to term. A woman should have the right to make the final decision on very part of her own body.

Post Update: With news reports of Niketa Mehta’s subsequent sad miscarriage, it appears that Nature had the final word, siding with the mother.

Tags: abortion, choice