N L I U - Striking the Right Balance

“Prenatal diagnosis does approach children as consumer objects subject to quality control”^[2]

Technological innovations have revolutionized our lives-- some positively while others in its mischievous usage. Prenatal diagnosis is one such instrument which has immense potential to curb the menace of genetically oriented problems, but has unfortunately led to adverse impacts^[3]. For one, it has allowed geneticists to assess the physical status of the fetus during a woman’s pregnancy.

Pre-Natal Diagnostic Techniques Act 1994, tries to prevent the misuse of the technology. Under Section 2(k) it defines prenatal diagnosis^[4] and under Section 4(2) it lays down the object of the diagnosis^[5]. But, alas, it is common knowledge, these techniques are principally used for fetal sex identification. There are at least five such techniques that could be identified here:

(a) Amniocentesis: This involves drawing off amniotic fluid from the amniotic sac in which the developing fetus is harboured and culturing the fetal cells so obtained to distinguished between the XX and XY cells so obtained^[6]. It could be done only after sixteen weeks of pregnancy.

(b) Chorionic villus sampling (CVS) demands the biopsy of a few cells from the fingers of tissue (the villi) which grow from the chorion into the walls of the uterus. It could be done after six to eight weeks of pregnancy.

(c) Fluorescence-activated cell sorting (FACS) involves the identification of fetal blood cells that have crossed the placenta into the mother’s blood or the use of blood samples taken directly from the fetus. It is possible safely after seventeen weeks of pregnancy.

(d) Ultrasound scanning can be used in order to determine the sex of the fetus, but only after the development of external genitalia, during the third trimester of pregnancy.

In an article ‘The Mania for Sons’^[7], Ramanamma and Bambawale dealt with the sociological reasons for such a quest. Though written on the basis of a study conducted twenty-five years before it still holds good. This paper does not intend pondering over the issue as much ink has already been spilt on it.

There are other issues which calls for the attention presently. For some, does our law recognize life in the fetus and taken effective steps to consolidate its legal status? Has the fetus been provided with sufficient protection? Will it be righteous to think for a perfect society, or a unisexual society? There are many questions incidental to it like, whether the mother can play with the fetus’s life or say whether mothers’ interest override fetus’ interest, and many more. It is unfortunate that legislative exploration on this count has been lamentably inadequate.

Regarding the question, when life begins and from when it should be protected, the American courts have gone very far off. Justice Dale W Young delivering a judgement in Davis v. Davis^[8] held that the embryos were, in law, persons, because life begins at conception such that ‘the manifest best interest of the child, in vitro, [is] that they be made available for implantation to assure their opportunity for live birth’^[9]. One of the reasons advanced was that ‘human life begins at conception . . . and Mr. and Mrs. Davis have produced human beings, in vitro, to be known as their child or children’^[10].

But contrary to this the English courts have rescinded itself from any attempt to give legal recognition to the fetus. Contrast could also be found in the civil law system where the basic presumption covering such instances is a fiction. The fiction being that in all matters affecting the fetus’s interest, the unborn child in utero should be deemed to be already born^[11]. But then English courts have something else to say as they do not consider a fetus to be bestowed with personhood.

The human being does not exist as a legal person until after birth. The fetus enjoys no independent legal personality . . . An unborn child lacks the status to be the subject of a legal duty. If injury is done to an unborn child, no duty is broken. If injury is negligently caused to a newly born babe, liability in negligence arises . . . In law and logic no damage can have been caused to the plaintiff before the plaintiff existed^[12].

The emotional bond between the mother and her unborn child was also of a very special kind. But, the relationship was one of bond, not identity. The mother and the fetus were two distinct organisms living symbiotically, not a single organism with two aspects.

Even [The] Medical Termination of Pregnancy Act, 1971, provides guidelines for effecting abortions in case the continuance of pregnancy would involve a risk of grave injury to her physical or mental health, or if the child is born, it would suffer from physical or mental abnormalities^[14]. The law itself is value laden. We are, perhaps, trying to structure a ‘perfect’ society, free from any form of disability. Will this amount to violation of the principles of equality, of which India is a great champion, is a moot point. Another consideration arises, who are we to decide for the quality checking? Here comes the crucial role of PNDT Act. Now we have technology to assist us in knowing what sort of fetus do we hold. The weak fetuses shall be lawfully eliminated to yield for the healthy ones.

Why should the defective children be treated as a burden not only on parents but also on the society is another issue involved here. It then becomes incumbent on the state to take up measures to mitigate such maladies. Providing compensation can also be a measure provided as a right to the child born in case of any negligence during his prenatal state. In such situations it will always be better to provide an insurance coverage, or probably a social security statute. Such civil liability shall make people more responsible in their conduct when dealing with expectant mothers. As a result both wrongful life and wrongful death claims shall promote the interests of the unborn.

Such claims can be taken care of by having a wide insurance scheme. With the quest of human rights and suppression of inhuman practices it shall not be much time for the Indian Supreme Court to take recourse to the American decisions^[15], holding people liable for negligence in prenatal care, where a duty exists. An insurance scheme would help in taking away the inconvenience in making parents liable. Insurance schemes will also prevent the parents from thinking of destroying the fetus itself instead of incurring a likely liability. Insurance coverage would also help the children where there is no reasonable forseeability of a resultant wrongful life.

The interest of a mother, who is a carrier of the fetus, cannot be ousted when we talk of the fetus. It should not be much of a problem to visualize an insurable interest of the mother in the fetus. The fetus is a life that has taken birth. Judicial jargons cannot deny this basic fact. One can also not deny the fact that insurance of a fetus shall be of utmost importance to the mother, to safe guard against any sort of negligent conduct by the hospital authorities, by the family members, or even by the mother. In India the mother is the sole guardian who shall bear all criticisms in case a child is born with any deformity. She shall be bombarded with behavioral directives to withstand the norms set forth by those in power. All this cannot be undermined in a civilized society.

The mother is the carrier of the fetus and the doctor is supervisor to assure proper growth, development and delivery of the fetus. The fetus in the womb is in a very critical position, where any advertent or inadvertent mistake or negligence on part of either the carrier or the supervisor shall result in a havoc for the forth coming child. Then why shouldn’t the fetus in such a vulnerable position be protected by an effective insurance scheme. In England after the famous Thalidomide case^[16], where the child was born deformed of mothers consuming medicine, the Congenital Disabilities (Civil Liability) Act, 1976 was passed. The policy behind the Act is that a child should have a right of action for prenatal inflicted injuries if as a result it was born disabled. Thus, we find though the fetus is not a legal entity as such, but once the child is born, the right to claim damages accrue to the child for the injuries experienced by him in the stage of fetus. Should the State still shut its eyes to such eventualities and ignore them., or should it make some social legislation with an intention to further the interest of the fetus and ensure a better and prosperous future.

In light of the above discussion can we say that Section 3(2) of the Medical Termination of Pregnancy Act , 1971 read with the Pre Natal Diagnostic Techniques Act is desirable, morally and ethically. Technology has offered us with new avenues for development, but we have made use of it otherwise. The fetus now has no importance but an object that could be assessed. The society shall have the liberty to decide for what it wants and what it does not. The fetus has been reduced to a mere object of quality checking^[17]: whether it is healthy or not, whether it is a boy or not, whether it shall be free from genetic problems or not. And the checklist shall be endless. What it has led to is a search for a perfect baby.

(1) Bonnie Steinbock, Legal and Ethical Issues in Human Reproduction, 1 Edition, 2001, Ashgate Dartmouth.

(2) Shapiro & Spece, Bioethics & Law: Cases, Material & Problems, 1981, American Casebook Series, West Publishing Co.

(3) Derek Morgan, Issues in Medical Law & Ethics, 1^st Edition, 2001, Cavendish Publishing Ltd.

(a) Pramodan M.C., The unborn and Legal Protection, (1994) Cochin University Law Review 255.

^[1] III year National Law Institute University, Bhopal

^[2] Abby Lippman, Legal and Ethical Issues in Human Reproduction, Ashgate Dartmouth, 2001.

^[3] The social dynamics of out country plays an important role in maneuvering the technical advances to further its interests with malice. Prenatal diagnosis has given a magical wand into the hands of those people who seek to destroy the demographic balance. Female infanticide was rampant and to escape the penal sanctions, female feticide came for rescue. This led to the alarming turbulence in the sex ratio of many states.

^[4] “2(k) “pre-natal diagnostic test” means ultrasonography or any test or analysis amniotic fluid, chorionic villi, blood or any tissue of a pregnant woman conducted to detect genetic or metabolic disorders or chromo somal abnormalities or congenital anomalies or haemoglobinopathies or sex-linked diseases;”

^[5] Sec. 4(2) of the PNDT Act lays down reason that such tests are only possible for the detection of the diseases or abnormalities, and nothing else.

^[6] XX cells refer to female and XY cells refer to male.

^[7] (1980) 14 Social Science and Medicine 107

^[8] 842 Sw 2d 588 (1992). The decision was in conformity with an earlier decision of Webster v. Reproductive Health Services 492 US 490 (1989) where a statute providing that life of each human being begins at conception and an unborn child has protectable interest in life, health and well-being, was held to be valid by the Supreme Court. The Supreme Court held that it was constitutional for a State to declare an interest in human life at all stages of pregnancy. Thus, if analyzed properly would show that, the liberty of a woman allowed in Roe v. Wade 35 L.Ed. 2d. 147 (1972) is further curtailed by Webster. While for Roe, it was uncertain as to when life begins, Webster unequivocally found that life begins from conception.

^[9] Ibid

^[11] Elliot v. Joicey 1935 SC (HL) 57

^[12] de Martell v. Merton and Sutton HA [1992] 3 All ER 820, pp 830. The view garners support from Sir George Baker’s observation in Paton v. BPAS [1979] 1 QB 276 where he said, ‘a fetus cannot have any rights of its own at least until it is born and has a separate existence from the mother’. In Re F (In Utero) [1988] 2 All ER 193 an attempt was made to make a fetus a ward of the court to guard its health, the Court of Appeal held that an unborn child lacks legal personality. In C v. S [1988] 1 QB 135 the court said the claim of a child crystallizes ‘on the birth, but not before, the child attains the status of a legal persona’.

^[13] [1996] 1 QB 581

^[14] Medical Termination of Pregnancy Act, 1971, Section 3(2). It reads as follows: “(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner, - (a) xxx; (b) xxx, of opinion, formed in good faith, that – (i) xxx; (ii) 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.”

^[15] See for example: Roe v. Wade 410 U.S. 113; Gleitman v. Cosgrove 49 L.J. 22 [1967]

^[16] S v. Distillers Co. (Biochemicals) Ltd., [1969] 3 All ER 1412

^[17] The Medical Termination of Pregnancy Act, specifically says that the abortion can be conducted if there is substantial risk that the child born shall suffer from physical and mental abnormalities. In England a series of cases starting from Re B [1981] 1 WLR 1421, Re C [1989] 2 All ER 782, has elicited a public opinion concerning the morality of abortion. Noonan in The Morality of Abortion, 1970, Cambridge, Mass: Harvard UP, has seeked to differentiate between abortion and fetal euthanasia.