The incongruity of ableism and abortion.

 

The incongruity of ableism and abortion

~ Shiv Mehrotra

“All animals are equal but some animals are more equal than others.”

A bare perusal of the laws surrounding abortion may not indicate the relevance of the aforementioned axiom. However, a more detailed reading of the said laws brings to light a very apparent paradox. There has been substantial debate surrounding reproductive rights in the past 7 decades however, several critical questions remain undiscussed let alone answered.

Is the right to life of a foetus suffering from disability, down syndrome or autism less worthy than the life of a healthy foetus? Are certain foetuses more disposable than others simply because they are differently abled?

 

Let us have a look at what the current laws in India surrounding abortion have to say –

Section 3 (2B) of the Medical Termination of Pregnancy Act, 2021 (‘MTP Act 2021’) states that any pregnancy can be terminated where the length of the pregnancy exceeds 24 weeks in case substantial “foetal abnormalities” are diagnosed by a medical board.

Section 3 (2C) of the MTP Act 2021 – states that every state government or union territory, as the case may be, shall constitute a board called a Medical Board for the purposes of this act to exercise such powers and functions as may be prescribed under the rules made under the MTP Act 2021.

Section 3 (2D) of the MTP Act 2021 – states that the Medical Board shall consist of a Gynaecologist, a Paediatrician, a Radiologist or Sociologist and such other members as may be notified by the Official Gazette by the State Government or Union Territory, as the case may be.

Section 3 (b) of the Medical Termination of Pregnancy (Amendment) Rules, 2021 (‘MTP Rules, 2021’) – enumerates the categories of women that shall be eligible for termination of pregnancy.

Section 3(b) (f) of the MTP Rules, 2021 – states that wherein foetal malformation has substantial risk of being incompatible with life or if the child is born it may suffer from such “physical and mental abnormalities to be seriously handicapped” the pregnancy may be eligible for termination.

It is evident that physical and/or mental disability of the foetus is a valid reason to opt for abortion beyond a period of 24 weeks and the same has been reiterated by the courts from time to time.

In Neethu Narendran Vs. State of Kerala (2020) the Hon’ble High Court of Kerala allowed a petition seeking termination of pregnancy beyond the gestational period of 20 weeks (before the 2021 amendment). The foetus was suffering from an open spinal defect and a condition called Renal Angenesis which in common parlance means absence of both kidneys. The Hon’ble Court observed life includes right to live with human dignity with all its splendour and a life that affects the mental health of the mother causing agony and pain to the entire family is not a life at all and when the continuation of pregnancy could only result in crippling the whole family emotionally, physically and monetarily it is within the realm of a power of a Court of law to permit medical termination of pregnancy.

In X Vs Union of India & Ors. (2023) the Hon’ble Supreme Court of India disallowed a petition seeking termination of pregnancy beyond the period of 24 weeks wherein termination was sought citing post partum depression and the mother’s inability to raise a third child mentally and monetarily. The Court observed the pregnancy had crossed 24 weeks and a medical termination cannot be permitted because-

1.      Neither of the two reports that had been submitted by the Medical Boards indicated that a termination was necessary to save the life of the mother.

2.      There were no “substantial foetal abnormalities” diagnosed by the Medical Board in the matter.

The current jurisprudence surrounding abortion and reproductive rights in India cuts at the very root of what our constitution stands for. It violates the Right to Equality (Article 14) and The Right to Life and Personal Liberty (Article 21) which is granted to all members of the society including the differently abled. The thought or idea that a differently abled foetus does not have the same rights as a healthy foetus is in and of itself violative of the basic structure of the constitution. The practice has been justified citing the right to a life with dignity of the mother and the family, however, the said arguments provide credence to an extremely problematic discourse.

Can the same set of arguments then be extended to fully developed children? Does a 6 year old child who is physically handicapped not have the same right to life as a 6 year old who is not disabled? Can a family then go on and shun their responsibilities citing their Right to a life with dignity? These questions have long been left undiscussed and unanswered in our quest of finding a legislation around abortion which fair, just and equitable.

It has time and again been reiterated that our constitution envisages a form of justice which equitable, where the more vulnerable you are, the more protective rights you need. Now are fully grown adults more vulnerable than unborn children with disabilities?