Let women have agency over their own bodies

The decision to have a baby or not should be that of the woman, her choice should be paramount

FPJ EditorialUpdated: Saturday, July 23, 2022, 01:54 AM IST
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The true test of a law, it is said, lies not in its letter but in its implementation by agencies, interpretation by courts, and impact on citizens. This resonates with the Medical Termination of Pregnancy (MTP) Act of 1971 and its important Amendment finalised 50 years later in March last year.

In the case of the unmarried woman who approached the Supreme Court against a Delhi High Court ruling that went against her last week, the law can be said to have finally carried justice. The SC bench, comprising Justices DY Chandrachud, Surya Kant, and AS Bopanna allowed the 25-year-old woman to abort her pregnancy of 24 weeks asserting that she could not be denied the facility of the medical termination of pregnancy “solely because (the) woman is unmarried”, and termed the Delhi HC ruling as one that took “an unduly restrictive view” of the law. “The distinction between a married and an unmarried woman has no nexus to the object sought to be achieved by the Parliament,” the judges remarked.

The SC judgment cut through the clutter that’s often found on the issue of abortion to give the woman the agency she wanted – and should have had anyway – over her reproductive life. For its clarity, sensitive interpretation, and ability to set a precedent, the judgment by the three-judge bench has earned plaudits, and rightly so. However, she needed to knock on the SC doors and the judges had to “allow” the abortion.

Therein lies the problem – despite the progressiveness of the law, the way it works is that women do not have complete agency and decision-making authority over their bodies; external forces such as medical boards and judges become an intrinsic and mandated part of what is a deeply personal and highly fraught decision for a woman. Given the prevailing gender imbalance in staffing in the country, the medical boards and composition of judges on a bench are more likely to be male-only or male-dominated. This weaves in an inescapable layer of patriarchy, even paternalism, into a decision that should be solely or largely that of a pregnant woman.

In the present case, the law was interpreted by judges – all men – who fortunately read it in a liberal and gender-sensitive manner. From another bench, with judges who hold a more patriarchal or paternalistic mindset, the interpretation of the same law might have yielded a gender-unfriendly outcome. In fact, it did; the Delhi HC interpreted it against the woman petitioner, offered her a safe house to carry her pregnancy through, and gave her the choice to put up the baby for adoption. The decision to have a baby or not should be that of the woman, her choice should be paramount, in consultation with her doctor if the occasion requires it.

The purpose of the MTP Act, or such a law anywhere in the world, is singular: To facilitate safe and accessible abortion for women who want it. This is often lost in the shrill and disruptive debates over “life” and “pro-life” and so on. The purpose has acquired an urgency and poignancy around the world in the aftermath of the United States’ Supreme Court overturning Roe v Wade and making abortion a criminal offence in many states. For women around the world, this signals the danger that lies in the terrain of women’s health, especially reproductive rights. That these rights have to be re-asserted all over again in the US, 50 years after they were read into law, only shows that women’s reproductive rights are fair game for the political class, the judiciary and the media.

Against the backdrop of conservatism, the passage of the Medical Termination of Pregnancy Act in Indian in 1971 making abortion legal and giving millions of women access to safe abortions was historic in its own right. This is not to suggest that all has been well; far from it, women in rural and remote areas of the country have hardly had requisite medical facilities, few women even knew that abortion was legal, and unsafe abortions leading to maternal deaths did register on the country’s gender index. Yet, Indian women had the law when the nation was only in its 25th year of independence and legalised abortion was not the prevailing norm in poorer parts of the world.

The Amendment in March 2021 pencilled in a number of changes that favoured women including maintaining confidentiality, giving women – including unmarried women – the autonomy to decide, making comprehensive abortion care accessible to all. It mandated that abortion could be carried out upto 24 weeks of pregnancy, albeit with the approval of doctors or a medical board. The grounds for abortion were expanded too to include not only therapeutic but also humanitarian and social factors.

The law, by itself, does not and cannot guarantee safe and accessible abortion to all Indian women. In fact, a United Nations report earlier this year pointed out the gravity of the situation: Unsafe abortions are the third cause of maternal mortality, as many as eight women die every day from unsafe abortion procedures. On the Health and Survival parameter of the Global Gender Gap Index for this year, India ranks last at 146th place in the world. Contrary to popular perception, abortions – both natural and induced – every year are fairly high in India; the total number clocked at nearly 15.6 million five years ago. Nearly six of every 10 abortions take place in rural areas, among women with low education and high poverty. The reasons vary, may even be debatable especially for the conservatives. What is beyond debate is that a woman must have the legal mandate, and therefore the social space, for a safe and accessible abortion if she desires it. The autonomy, the agency, is still missing.

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