Contrived Confusions

In the first week of December 2014, participants of a large rally at Jantar Mantar against cuts in social sector spending were shocked to see an anti-abortion stall with a banner titled “Delhi Commission for Women, Archdiocese of Delhi”, suggesting a partnership between the orthodox religious organisation and the Delhi Commission for Women. The stall housed posters that seamlessly mixed up issues of sex-selective abortion with pro-life stands against abortion per se. As it transpired, the religious organisation itself claimed a commission for women that was leading an exercise many would find anti-women’s rights, and which caused such public confusion. Notwithstanding, the more important unresolved issue is the confusion that seems to prevail in government and civil society both between the intention of the Pre-Conception and Pre-Natal Diagnostic Techniques  (PCPNDT) Act, and the Medical Termination Of Pregnancy MTP Act, 1971, and which is being exploited by many “pro-life” organisations of all religious hues to rouse public support against the legal entitlement of abortion.

While no one might argue in favour of abortion as a desirable method of family planning or contraception from the public health perspective, safe abortion is considered a significant reproductive right of women and is upheld as a pillar of reproductive health services by the progressive countries of the world. This is specially the case in countries like India, where women often do not have the power within the family to determine when and how they might be pregnant. Further, as the recent tragedy in the Chhattisgarh sterilisation camps also demonstrates, there is a high unmet need for decent contraceptive services on the supply side that prevent women from accessing their choice of contraception. Unsafe abortions contribute significantly to maternal mortality, and it has been proved that having legislations permitting abortion prevents unsafe abortions and brings down maternal mortality.

Basic Right of a Woman vs Rights of a Unborn Child

Certainly, from the point of view of human rights, at first sight, there does appear to be some conflict between the rights of women to be allowed to determine whether to house a pregnancy in their bodies and the so-called rights of the “unborn child”. However, as correctly argued by feminists, the rights of the woman are to be given precedence as an “existing” human being as against the rights of a child that does not yet exist as an independent fully functional being. In other words, the foetus does not have rights.

Taking all these factors into account the right to safe abortion has been accorded to women after much struggle by women’s rights groups, by the law of the land as per the MTP ACT, which now stands to be amended with the intention to allow greater access to the highly neglected services for safe abortion.

The MTP Act permits abortions in certain conditions up to the 20th week of gestation, while fetuses beyond 37 weeks are considered “mature” for independent existence. This leaves a fair amount of time  between the permission for abortion and the consideration of the foetus as having the potential to live. However, this is somewhat confounded by the fact that modern science is able to save neonates born at gestations much preceding 37 weeks; as young as 28 week-old fetuses (7th month of pregnancy) may be kept alive with modern technology using ventilators, parenteral feeding etc. This narrows and blurs this boundary area somewhat in the minds of people applying a humanitarian rather than a legal perspective to the issue.

Nonetheless, the right to abortion must be differentiated from the laws against sex discrimination that are in no way in contradiction to each other. There is no conflict between the PCPNDT Act and the MTP Act. The MTP Act allows abortion, while the PCPNDT forbids pre-natal sex determination to stop female foeticide. By conflating the two, confusion is being created in the minds of the public against a basic right of women.

Even government posters for “awareness generation” of the public with respect to sex determination have been found to use the terminology of “bhroon hatya” or “foeticide” rather than “abortion” – a term that indicates a homicidal criminal activity of taking “a life”. Our engagements with the general public as well as public health activists as “trainers” reveals the depth of confusion caused when people are questioned on why the foeticide of a male foetus is acceptable but not a female one and whether there is some discrimination at play here with respect to the rights of the child.

Act of Abortion

Of course, the question itself is incorrectly premised; the only thing that is illegal, within the prescriptions of the MTP Act and the PCPNDT Act, is determining the sex of the foetus (in this context, prior to abortion). It is entirely a social construct that causes female fetuses to be selectively aborted, therefore creating a link with the falling sex ratios in our country. The aborted fetus may be male or female—as long as it is not known prior to the act of abortion and as long as the sex of the fetus is not permitted to influence the decision of abortion. A pregnancy may be continued or aborted as per the provisions of the MTP Act, and this must happen irrespective of sex determination, as pronounced by the PCPNDT Act.

While the government may be working from ignorance or carelessness, the pro-life groups have used this confusion to attack the act of abortion per se, raising slogans such as “one life is taken and another harmed”. While these groups have the freedom to take an anti-abortion stance, the government must be more careful to stand by the current laws of the land and eschew the term “female foeticide” entirely in its documents and public media.

It is hoped that people grappling with the legitimate ethical paradox between the rights (legal and human) of the child-bearing woman and the humanitarian concerns for unborn children will take into consideration the background arguments and factual legal elements, and arrive at a balanced view that safeguards against women being treated as passive hosts of unborn children. At the very least, such an exercise must not be carried out under the pretext of “saving the girl child”, who is neither to be selectively saved nor destroyed.