Author ~ Bhavyakirti Singh
There is no freedom, no equality, no full human dignity and personhood possible for women until they assert and demand control over their own bodies and reproductive process…The right to have an abortion is a matter of individual conscience and conscious choice for the women concerned.
~ Betty Friedan
Attention to areas of healthcare, which were the most obvious but had previously been neglected, only arrived with the advent of the second wave of feminism in the United States.[i] It was only in around the 1960s that the impact of a feminist perspective on healthcare laws was realised, keeping in view the structural and inter-personal power differentials that shape the experience and implementation of such legislations and concurrent developing technologies. It is due to this reason that the over-simplification of the ‘pro-life’ v. ‘pro-choice’ debate is criticised by authors.[ii]
The first legislative material with regard to abortion in India came with Section 312-316 of the Indian Penal Code, 1860 [“IPC”]. The archaic law, under Section 312, punishes ‘causing miscarriage’ of a ‘woman with child’ and includes within its meaning a woman who causes herself to miscarry. The only exception given herein is for miscarriages caused in good faith and with the purpose of saving the life of the woman. Progress was made with the passing of the Medical Termination of Pregnancy Act, 1971 [“the Act”] which was introduced to meet the expectations of modern society with respect to the basic human right of a woman to have control over her own body and her right to privacy. It aimed at curbing and regulating the misuse of induced abortions but at the same time soften the draconian law as under Section 312 to move towards a more ‘pro-choice’ outlook. Yet, there are features and implications of this Act that cannot be turned a blind eye towards.
The most basic underlying criticism is, obviously, the fact that a woman still does not have an absolute say with regard to her body and whether she wants to continue carrying the child. It is still plagued with obsolete limits on the window during which a pregnancy may be terminated as well as allowing unbridled intervention by courts in a matter that should strictly fall within the medical purview. Thus, while the Act may seem liberal from a public health perspective, it is a conservative law from a feminist perspective; the woman’s agency is transferred to her healthcare provider and she is made a dependent within the clinic where the abortion is performed.[iii]
Of all the abortion procedures conducted in the country, 56% are unsafe,[iv] and the deaths resulting therefrom constitute 10-13% of maternal mortality in India.[v] Keeping in mind such alarming statistics, the Draft Amendment Bill of 2014 (updated in 2018) has been proposed.[vi] It acknowledged the fact that many congenital diseases are discovered only after the 20-week mark and that pre-natal sex determination may be conducted well before it. Further, it requires doctors to terminate the pregnancy on demand in the first trimester, giving a chance to women to demand abortions without having to justify or give reasons for their needs. This is even more significant for women who are not covered explicitly by the Act, such as unmarried women or sex workers.
Another important addition inter alia is the proposed legalisation of abortions conducted by mid-level health care (non-allopathic healthcare) providers. Though severely opposed by the medical community, it has been found to be a safe and feasible alternative,[vii] thereby increasing the number and availability of service providers.
Looking at the above-mentioned proposed advancements, we must understand the nuances of the influence of the ethical debate on abortion on Indian legislation. The IPC provision stems from the social stigma behind abortion coupled with the tendency of traditional Indian families to prefer a male child over a ‘financially and socially burdensome’ female child. The Act, on the other hand, is motivated by the discourse on family planning and public health. There is a lack of focus on the woman as an individual and is placed on medical professionals due to the booming overpopulation as well as maternal mortality from unsafe abortions.
This is in contrast with the principles encouraging legalisation in the West, the genesis of which is considered to be the public debate on women’s individual identity. The landmark judgment of Roe v. Wade,[viii] recognised the right to self-determination at the very outset. This line of reasoning must also be understood in the light of a study conducted in 1983 that compares the way that men and women understand moral concepts.[ix] The result of this social experiment claimed that men comprehend moral problems as conflicts of rights that may be resolved by creating a subjective hierarchy according to convictions. Conversely, women perceive moral problems as conflicts of responsibilities to themselves or people they are in any kind of relationship with.[x] Allison M. Jaggar pioneered change by substituting the ‘right to life of foetus’ with the ‘right to a full human life’. In this perspective, taking birth would be just one of the requirements, among others such as compassion, adequate nutrients, air, clean water etc. Further, she claims that it is women who will be most affected due to the decision of termination of pregnancy in comparison with any other third parties.[xi] Additionally, the ‘Impermissible Sacrifice Principle’, also states that “When one social group in a society is systematically oppressed by another one, it is impermissible to require the oppressed group to make sacrifices that will exacerbate or perpetuate this oppression.”[xii] This implies that laws demanded by men to make the termination of pregnancy illegal require sacrifices to be made only from women, not from men.[xiii]
Thus, in view of the alarming statistics that plague studies on reproductive medicine,[xiv] it is important for the legislation in India to fall in line with the more individualistic approach towards feminist bioethics, especially where even the Supreme Court has recognised the Right to Reproductive Choice as a part of the rights conferred under Article 21.[xv] The social, moral and religious connotations of the procedure cannot be ignored, yet, in the 21st century, we must evolve to give recognition and respect to the bodily autonomy of a woman.
Legal recognition of the same is important as it goes a long way in the emancipation of women from the age-old fear of abortion being considered as a sinful and criminal act.[xvi] It also has a great impact in empowering women and instilling the belief that they are capable of making decisions on their own without being dependent on third parties, be it their husbands, family members or even medical professionals. This is especially important in developing and still-slightly-socially-backwards countries such as India.
It must also be realised that the role of courts in the determination of the question as to whether a woman should or should not be able to avail an abortion has to be reduced. In a case to case basis, it remains purely a question of the woman’s choice and after a point of time, rational medical opinion keeping in mind the best interests of the woman.
Therefore, it is argued that it is the correct time for a sea change not only in legislation (which will hopefully be fulfilled by the passing of the amendment bill in the near future) but also in the basis and rationale behind laws that regulate the female body. It is time that our legislature sheds their attempts at social change through control over individual autonomy and gives due gravity to individual identity and medical bioethics as understood through feminist studies.
[i] Donchin, Anne and Scully, Jackie, Feminist Bioethics, Stan. En. Phil. (2004).
[ii] Sherwin, S., & Baylis, F. 17(2), The Feminist Health Care Ethics Consultant as Architect and Advocate, Public Affairs Quarterly, 141-158 (2003).
[iii] Shwetha Krishnan, MTP Amendment Bill, 2014: towards re-imagining abortion care, 12 Ind. J. Med. Ethics, 43-46 (2015).
[iv] Duggal R & Ramachandran V., The abortion assessment project – India: key findings and recommendations, Reprod. Health Matters, 122-129 (2004).
[vi] Draft Medical Termination of Pregnancy (Amendment) Bill, 2014.
[vii] Jeejeebhoy S., Expanding the provider base in India: the feasibility of provision of MA and MVA by non-MBBS providers, Population Council, 2006-2011. [http://www.popcouncil.org/research/expanding-the-provider-base-in-india-thefeasibility-of-provision-of-ma-and]
[viii] Roe v. Wade, 410 U.S. 113 (1973).
[ix] Carol Gillian, In a Different Voice, (1st ed. 1982).
[x] Laura M. Purdy, Are Pregnant Women Fetal Containers? (2nd ed. 2006).
[xi] Alison Jaggar, Abortion and a Woman’s Right to Decide, 5 Philosophical Forum 347 (1973).
[xii] Markowitz S., Abortion and Feminism, 16 Soc. Theory Pract. 1-17 (1990).
[xiii] Berat Alp Çevilikli, Feminist Ethical Approach to Termination of Pregnancy, 4 Turk. J. Bioethics 158-164.
[xiv] A WHO Report on “Medical Management of Abortion” (2018) states that a woman dies every 8 minutes in developing countries as a result of unsafe abortion.
[xv] Suchita Srivastava & Anr v. Chandigarh Administration, (2009) 11 SCC 409, states in paragraph 11: There is no doubt that a woman’s right to make reproductive choices is also a dimension of `personal liberty’ as understood under Article 21 of the Constitution of India.
[xvi] K.D. Gaur, Abortion and the Law in India, 15 Cochin Uni. L. R. 123-143 (1991).
About the Author ~ Bhavyakirti is a 2018-23 Batch B.A.LL.B(Hons) student at National Law University, Jodhpur.
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