Disabled — do they have the right to be born?
RECENT CAMPAIGNS for the rights of the disabled in India have brought the disabled population into visibility. Consciousness about their rights has arisen from within the community and also amongst other segments of society. India can now pride itself on being one of those very few countries which have passed a comprehensive law for the benefit of persons with disabilities.
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 is virtually a piece of welfare legislation. The Act has imposed various responsibilities on the state towards persons with disabilities. It aims at reducing discriminatory practices towards such persons, with reference to access — like road, transport and also built environment. The legislation also aims at integrating them into the mainstream society by providing opportunities of employment, education, and rehabilitation and also endeavours at adopting measures to reduce and prevent the occurrence of disability.
While the disabled are fighting for their rights and entitlements, a moot question remains to be answered: do they have the right to be born?
This question is gaining importance in view of certain rulings given by a French court. The Perruche judgment of the France's highest court of appeal ruled that disabled children are entitled to compensation if their mothers were not given the chance of an abortion. It was argued that if doctors had detected the foetuses' disabilities they would have had the pregnancies terminated. Campaigners for the disabled have described the decision an encouragement to eugenics. The case was widely regarded as establishing in law a disabled child's "right not to be born."
The question which calls for an intense debate is: should the law regulating abortion be disability neutral?
Indian law
Law regarding abortion in India is regulated by the Medical Termination of Pregnancy Act 1971:
Section 3 of the Act adds force to the proposition that a disabled child has no "Right to be born."
Section 3: When pregnancy may be terminated by a registered practitioner:
Subject to the provisions of subsection (4) a pregnancy may be terminated by a registered medical practitioner —
If two registered medical practitioners are of the opinion, formed in good faith, that —
there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
(4) No pregnancy shall be terminated except with the consent of the pregnant woman.
The implications of the provision, which provides for termination of pregnancy in case a child is found to suffer from physical or mental abnormalities, are shocking. The law does not define the phrase "seriously handicapped." The real risk intrinsic in this provision is that it helps in starting a process that ends with the search for a perfect child.
Purpose of the legislation
Abortion is a crime under the Indian Penal Code which was enacted a century and a half ago. Under that law the mother and the abortionist can be punished except where abortion had to be induced to save the life of the mother. However this strict law was found observed more in its breach. Abortion was induced discreetly by unqualified practitioners who used unsophisticated methods, which led to the pregnant woman dying or falling gravely ill. The MTP Act was sought to liberalise the existing provisions relating to the termination of pregnancy and to provide for the termination of certain pregnancies by registered medical practitioners.
The statement of objects and reasons has fixed the following reasons for the proposed measure:
As a health measure — when there is danger to the life or risk to physical or mental health of the woman;
On humanitarian grounds — such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic woman;
On eugenic grounds — where there is substantial risk that the child, if born, would suffer from deformities.
The first two ideas in support of the MTP Act are admirable. However the justification of termination of pregnancy on eugenic grounds is debatable. The idea itself is very insensitive. Eugenics is literally an effort to breed better human beings. The word was coined in 1833 by Franciz Galton, a cousin of Charles Darwin, to refer to the study and use of selective breeding of animals or humans to improve species over generations. It is the science of using controlled breeding to increase the occurrence of desirable inherited characteristics in a population. Eugenics encourages reproduction of people with "good" genes and discourages those with "bad" genes. It proposes actions to fix the unbalanced proportion of weak or otherwise unfit citizens in society.
The eugenic philosophy behind the MTP Act encourages society to devalue persons with disabilities. Section 3 of MTP Act manifestly makes a distinction between lives that are worthy of living and those that are not.
It indirectly encourages a society that wishes to establish a safe mode for itself not to be burdened with caring for disabled persons. Termination of pregnancy in the eugenic pursuit of perfect persons is wrong. Indian philosophy that believes in protection of the underprivileged and the weak cannot subscribe to such an idea which advocates termination of pregnancy and be responsible for extinction of persons with physical or mental abnormalities, even before they are born.
This argument should not be misconstrued as a quarrel against the right of the pregnant woman to terminate her pregnancy. She should be given an absolute right to do that. Under all circumstances — whether the foetus is a male/female/disabled child. Not merely because the child is a female or because the child suffers from some form of disability.
SATHYA NARAYAN
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