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- Almost a week after the Delhi high court disallowed a petitioner from terminating her pregnancy at 23 weeks, the Supreme Court stepped in granted relief to the woman.
- The language used while the Delhi high court heard the petitioner’s case exposed the extent of anti-choice rhetoric embedded in our institutions.
- One of the judges advised adoption, but in the process betrayed an unawareness of how unpopular adoption is in the India. Another offered to pay for the child’s care.
- More broadly, gestational cut-offs in our laws are arbitrary and unscientific even as India’s democratic institutions tend to moralise the legal issues.
Women’s exercise of their bodily autonomy faces a global crisis. The death of Roe v. Wade in the US sent across a clear message – that women’s bodily autonomy and reproductive freedom aren’t under threat only in the developing world but everywhere. Women around the world face a crisis of their reproductive rights being legislated against and judicially denied.
In the light of the Dobbs v. Jackson verdict that overturned the historic Roe v. Wade in the US, Indians were quick to point out that India ensures reproductive freedom for its women when a first world, developed country couldn’t do so. This is not the complete truth, though.
While there are some policies and laws to ensure abortion access, Indian women still face insurmountable socio-economic barriers in accessing abortions. India is also lacking in terms of policies and laws that are based on good science and put the women at the centre. Most importantly anti-choice rhetoric is just as institutional in India as it is in the US.
On July 15, the Delhi high court denied a petitioner who sought to terminate her pregnancy at 23 weeks. While abortion is legal in India until 20 weeks under the Medical Termination of Pregnancy (MTP) Act and until 24 weeks under certain circumstances, the court opined that the petitioner’s circumstances don’t allow her an exemption under the MTP Act that would allow her to seek an abortion past the 20-week cut-off.
Almost a week later, on July 21, the Supreme Court stepped in and passed a temporary stay to allow the woman to terminate her pregnancy, provided a medical board concludes that the procedure won’t pose any risk to her. The court bench, led by Justice D.Y. Chandrachud, held that the high court had taken a restrictive stance, noting that forcing an unwanted pregnancy would be against the spirit of the MTP (Amendment) Act 2021.
While the Delhi high court forcing the petitioner to carry an unwanted pregnancy is itself deeply problematic and a threat to her physical and mental health, the language used in the courtroom only exposed the extent of anti-choice rhetoric embedded in our institutions.
The language used by the judges is a testament to the anti-choice bias our courts hold. The foetus was repeatedly referred to as a “child”. One of the judges went on to ask the appellant why she was “killing the child”. Anti-choice rhetoric weaponises sensationalist language that presents abortion as a moral failing on the part of those seeking one by equating it to crimes like murder. Language like this also serves to place a moral burden on women trying to exercise their bodily autonomy by likening them to criminals. Further, such language positions forced pregnancies as ethical and in the interest of life.
For the anti-choice lot to do so is a common tactic but for a high court to do so is unacceptable.
Quashing women’s bodily autonomy
The language used also suggests the callous disregard for a woman’s life and well-being and how women are often viewed as little more than an incubator in the abortion debate. Chief Justice Sharma said, “I am suggesting a way out. We will ensure that she is kept somewhere in a safe hospital and she can deliver and go. There is a big queue for adoption.”
“She can deliver and go” – the statement disregards the immense physical and emotional toll a pregnancy has on the woman. Risks to her health and the risk of maternal mortality are also not considered. Perhaps most jarring is the fact that this statement reduces women to nothing more than incubators with no personhood of their own, exposing the systemic misogyny that institutions embody.
Following Dobbs v. Jackson, as many protested, anti-choice couples carrying signs saying “We will adopt your baby” became a common sight. Adoption is often suggested as a remedy to abortion. This doesn’t take into account two important things.
First, there are reportedly nearly 29.6 million children awaiting adoption in India but the country has an abysmal adoption rate. In 2020, only 3,559 in-country adoptions took place in India. Of these children, not all end up in institutional care. So to suggest there is a big queue for adoption is untrue and betrays a misunderstanding of the adoption landscape in India.
Second, suggesting adoption doesn’t address the risks associated with pregnancy and childbirth. Forced pregnancies force women to take this risk with no regard for their own health and lives. So to suggest forced pregnancies and adoptions as alternatives to abortion displays a societal and institutional disregard towards women’s lives and well-being.
“She has carried the child for 24 weeks. Why not another X weeks” is also something the bench said. According to UNICEF data (from 2017), 35,000 women have died every year due to pregnancy- and childbirth-related complications in India. Pregnancy and childbirth carry implicit risks and this suggestion by the judges of a high court cements the view of women as – again – incubators, whose health and well-being aren’t worth judicial protection.
When counsel for the petitioner pointed out the economic toll pregnancy and childbirth would take on the petitioner, the bench said, “Everything will be looked after by the government of India or government of Delhi or some good hospital. If the government does not pay… I am there to pay.”
The bench’s suggestion that it would pay for the economic costs associated with this forced pregnancy is abominable, but it also shows how this issue was a case of the bench bringing its biases into the courtroom. What should have been a simple legal matter was turned into an exhibition of anti-choice values and the moralisation of a legal issue.
Arbitrary gestational cut-offs
Cut-offs for terminating pregnancies are often a smokescreen. Arbitrary and rarely rooted in science, they are little more than a compromise that attempts to provide women some reproductive rights while trying to implement anti-choice policy. Countries across the world have cut-offs from anywhere between six weeks to no gestational limits altogether.
Consider the case of heartbeat laws in several US states. They seek to ban abortions once a foetal heartbeat is detected, which is usually around after six weeks of gestation. But the very premise is unfounded: at six weeks, a foetus has no heart. The thing being called a heartbeat is little more than an electric impulse. But while being misinformed, these arbitrary gestational limits still fulfil their goal – to restrict access to abortions.
“Laws around abortion are more about social stigmatisation and less about medical care and alleviating the physical and mental trauma of a woman carrying an unwanted pregnancy,” Dr Shaibya Saldanha, a gynaecologist with a private practice in Bangalore, said. “They seem to stem from patriarchal notions that a woman needs to be punished for consensual sex.”
What would a reasonable cut-off, based on good science, look like? “Every two weeks into a pregnancy, the health risks involved in an abortion increase, but in a country with a high maternal mortality rate, the health risks associated with abortions don’t justify early cut-offs. At 28 weeks, a foetus is viable by law, and can survive in a neonatal care unit.” So, she added, “26 weeks would be a medically sound gestational cut-off. It is before the point of foetal viability and allows women to get an abortion until their second trimester.”
Dr Nikhil Datar is a gynaecologist in Mumbai whose activism helped pave the way to amend the MTP Act. Asked about what he thinks of doing away with gestational limits, Dr Datar said:
“Personally, I don’t think gestational limits are needed. But even if they exist, what is the reasoning behind specifically excluding unmarried women from the outer limit of 24 weeks? There is no logic to this position. If divorced or widowed women can legally access abortions until 24 weeks, why exclude anyone from the 24-week cut-off? There shouldn’t be moral policing by the law.”
When an argument is made for no gestational limits, the primary criticism is that abortions will be sought far into the pregnancy, after a foetus has become viable. But doctors and experts have long debunked this notion. When asked if he had come across such a case in his many years of practise, Dr Datar said, “Absolutely not. At 30 or 32 weeks, the procedure is very similar to a delivery. No one would carry a pregnancy this far and then terminate for paltry reasons.”
Unfounded claims of foetal personhood, foetal pain and mental health consequences for the pregnant person are employed to sustain arbitrary gestational cut-offs, which in turn only harm persons seeking abortions and restrict the full exercise of their reproductive rights.
In 2019, the Government of India was opposed to raising the gestational cut-off to 26 weeks, stating that the state had a duty to safeguard the life of a child in the womb. So who will safeguard the interests and rights of women? Anti-choice rhetoric, whether invoked by individuals, governments or the courts, aren’t actually rooted in issues of foetal viability or foetal personhood; they are rooted in controlling women’s bodies, and this desire for control has always been institutional.
The 25-year-old petitioner’s case is a testament to this damaging trend of moralising legal issues, of institutions acting as moral police. What rights does a foetus have? Those that are anti-choice claim this is at the centre of their position. But a better question would be: what rights are we willing to take away from women to police their bodies and their choices?
Akshita Prasad is a writer and student based in Hyderabad.