With the Roe vs Wade case becoming the centre of political attraction, questions regarding the autonomy of women’s bodies and the right to choose, surrounding abortion are taking the centre stage once again. In what can be said as one of the biggest political leaks in recent American history, the American population is divided into the lines of pro-choice and anti-choice. The United States, if the Supreme court goes ahead with its decision on the rollback, will become the fourth country to tighten its control over women’s rights through abortion laws.
India comes under the larger group of countries that have progressively expanded their legal framework on abortion. That does not mean that the Indian legal framework is free of stigma and prejudice against women and pregnant people typical of a patriarchal setup. In fact, a quick glance into history situates the reason for the relatively progressive abortion law as the side effect of other reform movements.
In the 1830s, the British administration attributed the abortion rates to restrictions on widow remarriage as the widows of childbearing age often found themselves in a position to abort their children to get away from the stigma of extramarital relationships. The social set up prevalent at that period condemned widow remarriage as a more heinous crime than abortion. This meant that harsh penalties for abortion would lead the discourse away from the victim image that the Hindu widow was supposed to be painted.
Thus, in her paper, “Abortion in South Asia, 1860-1947: A medico-legal history,” (2020), Mitra Sharafi argues that the abortion laws in India owe their relatively relaxed disposition to the requirements of a social reformation campaign that was deemed stronger and more important.
It is then perhaps unsurprising that a legal framework that was designed with the needs of another movement rather than the concerns of women and pregnant peoples’ choices in mind, leaves more to be desired in terms of inclusion and constant re-invention. As part of reproductive rights and gender justice, the Union Cabinet revised the 1971 Medical Termination of Pregnancy (MTP) Act in late January 2020.
The amendment increased the maximum MTP period for women, including rape survivors, incest victims, differently abled women, and minors, from 20 to 24 weeks. MTP is now open to “any woman or her partner,” replacing the previous provision that was only available to “married women or their husbands.” In the instance of foetal anomalies, the Indian amendment also states that there is no limit on gestational age, addressing morbidity as a result of unsafe abortions.
This is supposed to relieve women and pregnant people of the stress of getting a court authorisation before time runs out. The amendment to MTP exempts criminalisation of practitioners under Indian Penal Code, who performs the abortion, provided they follow the provisions in the amendment. While all these changes help to make the abortion process easier, at its core, agency to potential birth givers is absent from the law.
This conceptual bias is evident in the qualifications made in the amended Medical Termination of Pregnancy (Amendment) Act, 2021. At the outset, the language of the law itself is exclusive. By characterising abortion as pertaining to women, it excludes potential pregnant people from the transgender community on the one hand and alienates persons who identify as women, and who are unable to get pregnant. By recognising special provisions for rape survivors, we are subtly reinforcing the idea that for a woman to have control over her bodily decisions, she must be violated.
A perusal of the technicalities of the legal framework shows that medical practitioners have more power in the process than the women themselves. The increased upper limit of the termination now requires the approval of two doctors and anything below 20 weeks would require only one.
Doctors could withhold approval for abortion due to changed psycho-social circumstances circumstances that make a childbirth unwanted, or in cases of unintended pregnancy, and lack of desire in a young, single woman to have a child. Dr Suchitra Dalvie, gynaecologist and coordinator for Asia Safe Abortion Partnership, a pan-Asia network for safe abortion advocacy remarked, “To me, the provisions [of MTP Amendment Act 2021] are progressive in a paternalistic, victimhood kind of way.”
The approach that the abortion discourse takes towards disability has also been criticised. Removing the upper limit in case of foetal disability in the new Act is further cementing the notion that disabled individuals are less valuable in the society. With the disparities in the public health infrastructure as well as in the provider base, especially in the volatile situation following the pandemic, demanding the approval of two doctors seems like a logistical hurdle to safe access.
The social stigma toward abortion is still very prevalent in India. There have been reports of abortion being denied in terms of moral grounds. The law is important to address this stigma, but it is not enough. In fact, a law that is based solely on the advancement of medical technology rather than the agency of pregnant people only adds to validating the stigma. At present, there are 73 countries that grant abortion at the pregnant person’s request, and India is not one of them.
A person’s right to their own bodily decisions will never be complete without a legal framework for abortion that is based on the demand of the pregnant person. We could maybe pride ourselves on comparisons with the U.S and its potential rollback of abortion law. However, without constant evolution, it is impossible to term India’s abortion laws as truly progressive.
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