Why Aishwarya Bhati and four SC justices deserve kudos

While the headlines have been dominated by the split verdict of a five-judge Supreme Court Bench on the issue of same sex marriage, there was an equally important unanimous verdict the day before by a three-judge Bench: Not allowing a married mother of two to abort a healthy third child at 27 weeks—well past the legal limit allowed under the Medical Termination of Pregnancy Act, except in specific and exceptional circumstances, which she did not fulfil. This is a landmark judicial step to recognise the right of an unborn child, not just the woman carrying it, given the specific circumstances surrounding pregnancy realities in India. But expectedly, only lawyers and activists are being asked by the media to hold forth on the judgement and they are all lamenting and raging that the right of the woman—the only one considered internationally—has been denied, or at least curtailed, by a Bench of three male SC judges. But there are others, including women like this columnist—neither lawyers, nor activists—who agree with their Lordships. Despite their being men and thus in the eyes of the activists inherently patriarchal, they have delivered a brave judgment. It is time that someone took a stand against the hideous assumption that the foetus is not a human being until it is born, that it is just another organ of the mother. Do those other “organs” have a beating heart? Those who consider a foetus as a non-human probably don’t have a heart. Their heads give many reasons for that notion, including complicated and convoluted legal precedents, especially those built on the woman’s right to choose, and “control” her body. As a parasite living inside a woman’s body, the foetus’s claim to being an individual (that too a human one) is diminished by that logic and its existence is therefore dependent on the wishes of the carrier. In this case the woman decided she did not want that child after being pregnant for five months but unaware of it because of “lactational amenorrhea”. That tongue-twisting term, used in every article on this issue but never explained, means that while a mother is breastfeeding usually fertility falls and prevents another pregnancy for around six months. But that is not a fail-proof method, as the conception of the 27-week unborn baby indisputably proved. Even if she was unaware, when she did find out—how exactly is unclear, given that she was dependent on the lactational amenorrhoea principle—she decided against having another baby because she had post-partum psychosis. With that mental health condition, though, a newborn is more likely to be in danger from its mother than an unborn. Curiously, the prescriptions offered as proof did not list her ailment, arousing the suspicion of the three (male) judges. Post-partum psychosis, unlike post-partum depression, is said to be very rare. Presumably the Lordships (and Ladyships before them) were informed if she had suffered from either condition during her earlier pregnancies. That would have provided context to this pivotal case as she did not fulfil any of the “special circumstances” conditions: she was not a minor, unmarried, a rape survivor or mentally challenged, nor would birthing put her life in danger. We know women in most Indian families are usually not conditioned to demand, or indeed be allowed to decide. For a mother of two to decide against having a third—even if it’s a surprise or an accident—is not unusual. But to be so adamant about it despite passing the legal limit for termination (which meant her healthy unborn baby was no longer just a shapeless mass of cells and had developed a four chambered heart), required considerable, well, steeliness. For people not rendered immune by the hard-headed letter of the law, the very idea of stopping a beating baby heart by lethal injection (much like that of a condemned convict in the US) is hard to countenance. That is what happens even to 20-week-old foetuses that are aborted, as their hearts begin to beat as early as 3 weeks. But doing so at 26 weeks in this case, that too by court order, seems more abhorrent. As if an unborn child is an unborn criminal. Kudos to Additional Solicitor General Aishwarya Bhati for bringing the letter by the medical team tasked with the termination asking for clarity on the method to be followed, to the attention of the two SC justices who had allowed abortion, upholding the woman’s right to choose. Both options they mentioned were grisly: stopping the heartbeat and extracting a dead baby or bringing out a live premature baby who could die, or live with mental and/or physical issues. That at least one of the women justices was unaware of what their Bench’s order would exactly entail points to the fact that many ordinary Indians—including those who opt for abortion within the legal limit—may not know either. That SC justice took back her original order as she drew the line at what seemed to be passing a death sentence on a healthy and viable baby by judicial order although her colleague on the Bench did not reconsider her own order. This dissonance brought the case before the “patriarchal” Bench of three male SC justices. But the questions posed by the justices did not corroborate their facile characterisation by the “pro-choice” lobby. If anything, the justices extended “choice” to the unborn child which had no abnormalities, was overall healthy and whose carrier—mother—was also not endangered by its existence. Giving a human foetus a modicum of human rights sounds quite fair. When “eminent” human rights lawyer Colin Gonsalves told their Lordships all abortions require the “stilling” of the heart and is a policy of the government that did not require the Court’s permission, the judges asked if this meant that a woman could abort even at 33 or 34 weeks. Gonsalves’ reply was spine-chilling: citing international norms that now deem time limits obsolete, with “modern technology” termination after 33 weeks can be done “safely”. Safely for the mother, that is, not the unborn child whose heart is “stilled” when it could be born safely too. This same “modern technology” has reduced the definition of “full term pregnancy” to 39 weeks from the earlier 42 weeks. It has also made it possible for foetuses to become viable—that is, have a chance to survive birth—at just 24 weeks, ironically the same stage at which they can also be “terminated” in India albeit only under special circumstances. Almost every article or information site on abortion focuses exclusively on the woman and her safety and wellbeing—which also appears to be the goal of the medical advances in the field. But how can that be the only consideration when medically terminating what is a fully viable, normal foetus at 34 weeks? After all, there are issues other than safety—ethics, morality (much as this is despised by a certain class of opinion makers) and even sheer humanity. Some 25 million babies are born every year in India—70,000 babies every day, nearly 3,000 per hour—which is the world’s highest. According to 2015 official estimates, 15 million foetuses are also aborted every year, allowed under the MTP Act 1971 (expanded in 2021).  India, with its nuanced stand on abortion, is thus way ahead of countries like, say, the US, which is still struggling after the Roe v Wade judgment was struck down by its Supreme Court. No wonder the Chief Justice of India remarked “Why should we implement international (standards)? We have our own laws.” It must be added, however, that we also have our moral norms and unique sensibilities, like every culture. India’s social contracts are very different from the west, medical advances notwithstanding. Women’s rights are often circumscribed in India so their agency cannot be deemed similar to what obtains in western nations. Thus the potential for misuse of any law or precedent is rampant in India. Crucially, we also do not know the gender of the unborn child in this landmark case. Had the judges gone by the activist-lawyer consensus and decided that the rights of the woman “trump” every other consideration, the misuse of the precedent to do away with girl babies at the nth hour for reasons other than medically verified severe abnormalities would have risen hugely. Unborn babies from conception to 39 weeks of any gender cannot—must not—be reduced to statistics and impassive pro-life-or-pro-choice binaries. Three Indian (male!) justices have shown how “modern technology” and a bold judgement can give a normal foetus the chance to be born alive and healthy by being carried for just a few weeks more than the termination limit, and yet give the mother the freedom to exercise the choice not to raise it. The author is a freelance writer. Views expressed in the above piece are personal and solely that of the author. They do not necessarily reflect Firstpost_’s views._ Read all the  Latest News,  Trending News,  Cricket News,  Bollywood News, India News and  Entertainment News here. Follow us on  Facebook,  Twitter and  Instagram.