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Indian Supreme Court to Examine Abortion Law

Thaddeus M. Baklinski,

NEW DELHI, February 13, 2009 ( – India’s Medical Termination of Pregnancy (MTP) Act, which prohibits abortion after 20 weeks gestation, has been challenged in the Supreme Court by gynecologist Nikhil D. Datar. Datar was involved in last August’s court ruling that denied permission to a woman who wanted to have her 25-week-old unborn child killed.

Under the Medical Termination of Pregnancy Act, abortions are legal in India until the 12th week of pregnancy. Between 12 and 20 weeks abortions are allowed if either the mother or the baby faces a health risk. After 20 weeks only very grave medical risk to the life of the mother is grounds for asking for a court ruling allowing the unborn child to be killed.

Datar was one of the petitioners, along with the couple – Niketa and Haresh Mehta – who sought permission from the Mumbai High Court to abort Niketa’s first child after Datar diagnosed her child with a congenital heart problem.

The High Court dismissed their petition, observing that medical experts did not express any "categorical opinion that if the child is born, it would suffer from serious handicaps."

"The court has opined that the medical expert body, which was directed to submit a report, has submitted that the child will not be a permanent disabled as contemplated," Rajendra Raghuvanshi, Additional Solicitor General for Mumbai, told reporters outside the court after the decision was reached.

In denying the Mehtas request to kill their child the High Court also stated that the issue of revising the legislation was the responsibility of the government, not the courts.

It was reported that shortly after the High Court ruling Niketa Mehta suffered a miscarriage.

In his lawsuit, Datar is seeking amendment to the Medical Termination of Pregnancy Act, contending that a congenital heart defect can only be detected in an unborn child after the 20th week of pregnancy and that the 20-week limit for abortion had become obsolete, because in "developed countries" it had been extended to 24 or 26 weeks.

Supreme Court Justices K G Balakrishnan and P Sathasivam, while allowing the lawsuit to go forward, have issued notices and sought a response from the Indian government.