In an important judgment on July 25, a Supreme Court Bench comprising Justice J. S. Khehar and Justice Arun Mishra changed the legal landscape of the Medical Termination of Pregnancy (MTP) Act of 1971. The case in question pertains to a 20 year old woman, Ms X, who claims to have been raped by her fiancé, who went back on his promise of marriage. Twenty-four weeks pregnant, with a deformed foetus, she had challenged the 20-week cap on the period at which a medical termination of pregnancy could be performed as per the MTP act.
Ms X had challenged the act arguing that the 20-week limit was unreasonable, arbitrary, and violated her right to life and equality.
Continuing the pregnancy, her lawyers argued, portended “grave injury to her physical and mental health”.
Attorney General Mukul Rohatgi argued that if the mother’s life is in danger, “there is no time limit for conducting an abortion. If you have to save a life, you need to cross the limit of 20 weeks”. We are not told of her reasons for delaying seeking abortion. The case, however, raises significant issues. It is, of course, in sharp contrast to a case in Ireland in 2013, where a woman dentist of Indian origin, who had an incomplete and natural abortion, was denied medical intervention to complete it. The medical establishment and the legal establishment watched her die of septicaemia. It is ironic, that barely a year later, in a national referendum, Ireland voted for legal sanction to same-sex marriage. Denial of reproductive rights of women apparently goes hand-in-hand with rights for the LGBT community.
In India, of course, progressive moves towards reproductive rights for women are not matched with equally progressive moves towards decriminalising same-sex relationships. But the relationship between reproductive rights and LGBT rights is equally complicated in the US.
In 2015 in Indiana, a young unmarried woman, Purvi Patel, was jailed for 30 years, for causing abortion, and also bizarrely of causing the death of her “born-alive foetus”. More and more states in the US are making abortion difficult, with a large number of states mandating that a woman seeking an abortion be shown an ultrasound image of her foetus before she can decide to terminate her pregnancy. Women have been jailed on suspicion of having induced a termination of pregnancy when their pregnancies have terminated naturally. Indiana has a foeticide law; it does not have a law that criminalises abortion. The law, passed under the guise of protecting pregnant women from violence, is now being used to punish pregnant women seeking abortion. Thirty-eight US states have passed such foeticide laws.
In 2015, the US Supreme Court upheld, under the right to religion, the right of employers not to insure their employees for contraception. Access to paid contraception for women is also under threat. At the same time, state after state in the US and country after country around the world, legalises same-sex marriages, with a host of celebrity couples endorsing this.
Ms X’s case in India also raises questions about the eugenic basis for permitting abortion. This is, in fact, one of the clauses of the MTP act : A woman can seek abortion if the foetus she carries is not normal. This was the reason cited in the Niketa Mehta case in 2008 when it was argued that she be permitted to abort her abnormal foetus, as revealed by genetic tests that could be performed only after 20 weeks of pregnancy. These genetic technologies to detect foetal abnormalities did not exist when the MTP Act was passed in 1971. The medical establishment argued that the 20 week limit seriously curbed parents’ choice to access these technologies. It is no secret that the Mehta case got the support of the powerful and well-heeled reproductive health and tourism industry, looking forward to a rush of such genetic testing. The Bombay High Court did not allow abortion in the Niketa Mehta case arguing that the MTP Act did not permit it to do so.
Mehta subsequently had a still birth. The recent Supreme Court judgment therefore promises precisely this bonanza for the industry.
In recent years, of course, the eugenic basis for abortion has been questioned by disability rights activists. They came together with the Hindu right-wing anti-abortion lobby in the Chandigarh Nari Niketan case in 2012, challenging the Chandigarh High Court judgment to permit a mentally challenged young woman, sexually abused in the Nari Niketan home, to abort. The Supreme Court overruled the high court and suggested that the young woman be permitted to give birth because she was otherwise healthy. In this case, the Supreme Court regrettably converted a woman into a birth-machine. The child delivered was put up for adoption.
It must be borne in mind that — as scholars have argued — the MTP Act was passed, not to enhance women’s rights, but primarily for purposes of population control. It is worth noting that there was hardly a voice of dissent then. The lone voice of dissent was the then Shankaracharya of Puri, a known RSS supporter, who argued that Hindu women would disproportionately utilise abortion facilities, thus contributing to the Muslim rates of population growth. No one then took him seriously.
Today, however, when Hindutva is all powerful, these are not voices in the wilderness. There is an anti-abortion movement in India, imitative of that in the US, and women’s reproductive rights stand threatened here too. Extending the date for abortion strengthens the armoury of these anti-abortion activists who will scream foeticide. It also raises concerns among doctors, who are for abortion, but do not want the period extended lest they commit and be accused of foeticide. Thus, while the Supreme Court judgment has brought relief to Ms X, it has also raised several disturbing questions.
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