ABORTION RIGHTS- a genealogy

To have an offspring should be a desire and not a burden to the bearer of the same. Literally abortion means deliberately putting an end to the pregnancy with the help of medical procedure. Medical texts are not conspicuous on their view of fetus being alive or dead, hence, abortion can be defined as the conclusion of pregnant state of female at a premature stage.

There are two domains of abortion: [i]spontaneous abortion and [ii]induced abortion. The one occurring due to a natural mishap or is a consequence, where there was no deliberate move from the mother or her kins is generally termed as miscarriage or spontaneous abortion. On the other hand, the one carried out by professional medical practitioners with the consent and will of mother or her kins is termed as abortion. The key difference between the two domains is the element of will on the part of bearer of the baby.

There also exists selective abortion wherein a male child is preferred over the female child due to unreasonable traditional reasons. The gender of the baby can be identified with the help of sonography, which now is banned but still prevails illegally in some parts of India. Even after multiple restrictions and laws being passed, female feticide is still a problem with no end in sight.

In the historical era, there existed no tested and proven medical methods for abortion so people came up with their own methods without considering much about the health of the mother being affected. The abortion was first practiced in Egypt, where people opted savage methods, such as pouring hot water on the pregnant woman’s abdomen, making her climb trees, running, putting physical pressure on her body, these methods proved to be successful (in some scenarios) but gravely hampered the health of the woman. A woman is in a very delicate state when in pregnancy, her body undergoes immense change and so her wellbeing should be the topnotch. Here came the need of proper medical assistance.

England followed by the States were the first ones to criminalize abortion in the 19th century, and were successful to an extent where people perceived it as a sin owing to their conservative Christian beliefs and was an invitation to vandalism. They gave reasons like that of “protecting the woman” which in fact was restricting women of their bodily autonomy and restricting them to their traditional assigned roles of carrying on the legacy of the family with or without their consent. The exception was provided in rare cases where mother’s life was endangered at the cost of bearing a baby. But the question of whether the mother herself was ready to carry, deliver and further nurture her offspring remained unanswered. Was she capable- mentally, socially, economically, and even physically to bear the responsibility that followed?

Illegal and legal abortion or rather unsafe and safe method of practice (exceptions might be there) are the topic of discussion. Illegal abortion is when it is performed by laywomen and people who claim themselves of having a professional degree in medicine, the woman undergoing the same is not allowed to know the identity of the abortionist. The practitioner forbids the woman to ever make contact and owes no responsibility if something goes wrong. This most often lead to grave repercussions. They generally ask for favors which are not of ethical sort, say, sexual favors before abortion or like in case of 1960s abortionists turned away if they were not paid 1000$ or more in cash. They anonymously carry out the process because of the harassing consequence when in case it goes wrong. The very reason for the birth of illegal abortion can be contributed to the prejudices and hate for a community / color other than that of the legal abortionists.

But then with the onset of the second half of the 20th century, civil wars and feminists’ movements rose for the legal rights and remedy for the abortion so women shall not possibly suffer from the dangerous illegal abortion. Then few states liberalized exceptional cases like that of incest, rape, pregnancy before the age of 15 years, cases threatening mother’s health and some more. A pregnancy hence was allowed to be terminated in the first trimester. Law suggested that after the first trimester, the fetus enters a complex state, and in such cases only woman and her abortionist have the legal right to decide whether to perform abortion, keeping in mind the repercussions of the act.

Legalizing abortion rights have been quite good for India as compared to the West. While there were protests going on in the second half of 20th century for abortion rights in the state, it came quite easy for India with the MTP Act of 1971. While feminist society around the world fought to get abortion legalized, some scholar women of India debated on abortion not being based on Malthusian demographic context but more on a tool to oppress woman by regulating their sexuality and not giving them freedom over their own body and choice of bearing. Medical Termination of Pregnancy (MTP) Act, 1971 provides for “the termination of certain pregnancies by registered medical practitioners and for certain cases that might be incidental thereto.” The Medical termination of Pregnancy bill, 2021 was passed by the Rajya Sabha, it connotated that “medical conclusion of a 22 weeks pregnant woman is allowed under the circumstances of fetus suffering from abnormalities.” The MTP act 1971 “accounted just for the purpose of empowering woman by taking care of them all and giving them access to safe abortions, whereas the bill of 2021 proposes for the safe, legalistic, and based on social, humanitarian, psychological grounds also.”

[iii]Psychological phase which a woman goes through while opting for abortion shall be the topic of discussion now, keeping the legalistic genre aside. The stigma, the pain, the alienation, and the mental agony that she goes through? While deciding whether to go through abortion, a woman needs support but in majority cases does not experience much of a distress like she does when giving a childbirth. Distress is highest during decision making before abortion, and the most common reaction post the abortion is a sense of relief. Women who can cope with abortion are characterized by optimism, comforting and supportive family, a sense of personal control. Social, cultural and support from partner, boosts the confidence that assists in coping while women with psychiatric and traumatic pasts are like to react negatively.

The paradox now is that abortion is legal yet out of reach of many women. Merely legalizing abortion does not suffice, how can every pregnant woman willing to go through abortion will have a reach to it? Issues like that of burden from society, non-consent from parents, traditional approach as a sin rather, lack of facilities and professionals all add up to the already existing daunting barriers and these obstacles lead to women resorting for illegal means of abortion in most cases. To add to this pre-existing chaos, teenage pregnancies are on an ever-rise. The number of consensual sexual relations, by these very teenagers is on the rise but it becomes impossible for them to access legal and legitimate abortion owing to the stringent laws that prevail in order to protect girls. There runs a threat to their partner (consensual) who might be imprisoned and charged for rape. Hence, their only way out becomes illegally procuring either medicines or carrying out the process in a jiffy, in absolute terror and sneakily.

[iv]Talking of women who were not able to get an abortion in lockdown. The world enforced some of the strictest restriction like putting a pause on airlines and all sorts of transportation to keep people confined in their homes for minimizing the spread of coronavirus. Only medical institutions were working for emergency cases. Taking case of a woman Kiran (name has been changed to keep the identity anonymous), 20-year-old girl who resided in Delhi discovered she was pregnant even after taking pills and other necessary contraception, was left with no other option but to go for surgical abortion. Since the hospitals were open only for essential services, not all women desiring a surgical abortion got it done. These circumstances compelled them to resort to illegal and unsafe abortion.

Hence, necessary laws must be stipulated that take care of reproductive and sexual wellbeing of society, particularly child bearers. Pregnancy is not just a matter of getting a new human being to this world but it is much more than that and all the aspects are to be kept in mind.

[v]DY Chandrachud in his recent judgement said that “rights of reproductive autonomy should be given to women irrespective of their marital state. Providing only married women with the legal backing is constitutionally unsustainable and concludes that only married women are sexually active.” He also proposed to include marital rape under the ambit of rape for the purpose of MTP act. This was one of the most prudent judgements which does not discriminate between the victims based on their marital status but serves the very purpose it was brought for. A phrase which sums up the whole judgement, quoted by DY Chandrachud “A woman’s right to reproductive choice is an inseparable part of her personal liberty under article 21 of the constitution and has a sacrosanct right to bodily integrity”, the integrity which must not be hampered. “Denying an unmarried woman, the right to safe abortion violates her personal autonomy and freedom.

As in the recent case, [vi]an unmarried girl got impregnated and was denied abortion on the grounds that she was in a consensual relation, and hence was not covered under the ambit of getting termination done. The matter went to such epitome that the chief justice of Delhi high court himself was ready to bear all the expenses of the child and asked her to give it for adoption and not kill it as there are queues of people wanting to opt for adoption. The girl did not agree, reasoning that she was so poor that she cannot afford delivering a baby. With her petition to get abortion done she raised an argument on expanding the ambit under the medical termination of pregnancy act as it is violating [vii]article 14 on the grounds that it discriminates between women from different sects.

Under the ambit of abortion, the women in India, even though not safe always still have access to the very idea of termination of a pregnancy that they do not wish to bear. The picture is however a 180-degree flip for those in the superpower nation of today. Women in the US even after almost 250 years since independence, are still fighting for their basic right to be able to choose for themselves what they deem fit. With the recent SC verdict of Roe vs Wade being overturned, a lot of women, in a lot of States pose the threat of never getting access to abortion unless they have the funds to travel to another state where it is still legal. Those who cannot, will resort to unlawful abortions and put themselves in danger- time and again. Most insurances would not even cover abortions done in different states and thus deteriorates the financial standing of one, given the exorbitant costs of healthcare in America. Why is it so that even after years and years of debate and discussion, are women still not free from conservative mindsets and patriarchy? Why are they still being forced to go out on streets, protest and plead for something so important and something that should not be at the discretion of anyone but them. Why are we not able to comprehend and contemplate that abortion, child-bearing and child-rearing are exhaustive tasks and only those who wish to and want to and have a standing to should be able to do so? Why are we not respecting the will of the woman when we decide to pass judgements that hamper her body?

When we speak of progressing, we cannot let her be side-lined and we cannot consider females to be subaltern or hold an inferior position in the 21st century. Abortion should be only her choice and decision with no influence of anyone else. It is time we stand in solidarity and free ourselves from the shackles of conservation.