Aborting a Down Syndrome Foetus: Legal, Medical, Ethical Conundrum

The court denied a woman’s plea for abortion of her 26-week-old foetus suffering from Down Syndrome.

Image for representational purpose. (Photo: iStock)

A rural woman from Maharashtra, now into the 26th week of her pregnancy, wanted to abort her foetus on the ground that it suffers from Down Syndrome. On Tuesday, the Supreme Court’s refusal of her plea to do so has once again sparked the debate on India’s stringent abortion laws.

The point of vexation for the woman here is that her child will be born with a genetic disorder that leads to physical and mental abnormalities. And her economic status isn’t enough to provide a quality life to a child with Down Syndrome.

Many children with Down syndrome are also born with heart, intestine, ear, or breathing problems. Even though in today’s time such a child can go on to lead a happy life, it takes a lot of resources to waddle through the high likelihood of various surgeries and health risks.

What Transpired Till the 26th Week

What the Law Says and How the 20-Week Limit Is Insufficient

Senior advocate Colin Gonsalves, who’s fighting the woman’s case, explains his argument against this law to The Quint.

Many foetal defections, including Down Syndrome, are detected only after 20 weeks of the pregnancy. Keeping this in mind, the 20-week limit should be done away with like in other parts of the world. A woman has absolute right over her body.

Colin Gonsalves, Senior Advocate

A gynaecologist adds that sometimes, the report takes 2 to 3 weeks to come after the tests have been carried out, and that doesn’t leave any window for termination.

‘Govt Should Provide Aid If It’s Forcing the Mother to Give Birth’

If the government wants to stick to obsolete laws, they should then provide for the child’s upbringing, says Gonsalves.

Speaking to The Quint, women’s rights lawyer Flavia Agnes says many countries offer financial aid and other support to parents to raise differently-abled children.

It is extremely unfair to force mothers to undergo this task without State support. I think the Supreme Court could have ordered necessary support to the parents to raise the child when they refused to grant her permission to abort.

Flavia Agnes, Women’s Rights Lawyer

What Are the Repercussions of Not Following the Law

Before 12 weeks, one medical practitioner’s approval is needed to abort, and from 12-20 weeks, two medical practitioners need to agree with the termination.

A gynaecologist said that at times, when it’s a case of unintended pregnancy, doctors do value the mother’s choice to abort.

However, after 20 weeks, hospitals and clinics don’t perform the procedure without the court’s approval.

Legally, those who perform abortions after 20 weeks are criminally liable along with the woman who undergoes the abortion. It is punishable with a maximum of 10 years. But usually, the police will act only if someone approaches them and files a complaint.

Unless there is gross misuse of legal provisions, the police usually do not initiate criminal proceedings on their own. Activists in support of the abortion law say that it is needed to check misuse in cases like female foeticide.

Here’s What the Supreme Court Judgement Said

Going with the medical team that was constituted to assess the 37-year-old woman’s condition, they said there was no danger to the mother’s life if the pregnancy continued.

Solicitor general Ranjit Kumar told the bench that the Centre was considering amending the law and allowing abortion up to 24 weeks.

Is It Time the ‘Archaic’ Law Changes?

While the court has, in the past, allowed abortion beyond 20 weeks in exceptional cases, this is highly discriminatory as those who cannot reach the Supreme Court are not able to avail of this remedy, says Agnes.

In 1971, when the abortion law was formed, there were no ultrasounds or foetal monitors to give a high-tech peek at the developing baby. Now, when technology has made identifying deformities possible, doctors and activists feel the law should change.

Medical innovations have made performing an abortion a highly sophisticated surgery. So it is time we changed the archaic provisions. 

Flavia Agnes, Women’s Rights Lawyer

However, Agnes adds that it may be due to the danger of misuse by medical professionals that the government is wary of amending the provisions.

There are some who feel that there should not be any ceiling for abortion at all and that it is a matter of choice of women.

But there are also other activists (specially those who work on rights of the differently-abled), who draw parallels with female foeticide, to say the law should not permit abortions in cases of foetal abnormalities as every child has a right to be born.