The Bombay High Court in western India on Friday asked a panel of doctors to tender clearer advice on the application for abortion from 25-week pregnant woman. An earlier report was found contradictory.
Niketa and Haresh Mehta, both in their early thirties, along with their doctor Nikhil Datar had moved the High Court seeking permission to abort the couple's first child as it had a congenital heart disease.
The JJ hospital panel stated, "Sonography report shows that the foetus has a congental complete heart block."
The consensus of the panel was that "there are very fair chances that the child will be born incapacitated and handicapped to survive".
Still, curiously, the J J Hospital committee added that "the findings were not significant to warrant an abortion."
In the circumstances Division Bench of Justices P B Majumdar and Amjad Sayed called on the panel to give the court a "positive and firm" report whether the abortion should be allowed owing to a risk to the foetus.
The court said, "Looking into the urgency of the matter, the report should be in by Monday morning."
The couple's contention is that that the unborn child will suffer critical problems even with a permanent pacemaker. The US and the UK allow medical termination of pregnancy up to the 24th week, they note
This is the city's first legal challenge to the country's 37-year-old law preventing abortion beyond 20 weeks unless the pregnancy constitutes a health risk for the mother.
"There is not only a heart blockage that will require a permanent pace-maker but the baby's right and left ventricles are also interchanged,'' Haresh said, quoting doctors.
"We were told our decision to opt for an abortion was correct in the circumstances. But the law prevents us from doing it legally,'' Mehta said from his Nariman Point office.
"We agonised over this a lot as this is our first child. But then there is no guarantee we will be there tomorrow. Life today has become so tenuous. Who will look after our child if and when we are not there?'' he asked.
The Mehtas had to undergo a whole series of tests at the J J Hospital. "It was a long day from 11 am to 6.30 pm with no meal. The hospital did not have the latest machines and we were orally told after a sonography that there was only a heart blockage,'' said Niketa. Past 25 weeks into the pregnancy, she was exhausted by the end of the ordeal Wednesday.
One of their relations has a child with a serious congenital defect, and the Mehtas have seen their trauma. "We want a child and we will be equally happy with a boy or a girl but the child can't be made to suffer through life,'' Haresh stressed.
The petition filed by Haresh and Niketa Mehta is the first example of someone thinking of the quality of life of an unborn foetus, feels their lawyer, Amit Karkhanis. "Abortion laws have only focussed on the health of the pregnant woman,'' he noted.
Women's rights lawyer Flavia Agnes felt abortion should be permitted if there was a threat to the foetus's health. Women often faced the brunt of bringing up children with serious congenital abnormalities, she noted, adding: "I have seen women suffer and marriages break down because the father and his family are not ready to accept the child. The women become the primary caretaker of the child and many mothers go through acute depression. The law needs to be amended.''
But the Mehtas will have to contend with the likes of the Mumbai archbishop Cardinal Oswald Gracias who says "abortion is a horrendous evil and is a threat to human dignity because it directly attacks life itself."