Still the Second Sex? Underlining the lack of autonomy in India’s Abortion Amendment Bill

In the United States and Europe, abortion as a regulated practice was not legal until the mid-1970s. Yet, in the year 1971, India passed the Medical Termination of Pregnancy (MTP) Act, regulating the process of abortion in the country. Consequently, in March 2020, in what may be termed as a significant development, the Indian parliament passed the Medical Termination of Pregnancy Amendment. Interestingly, the word ‘abortion’ is not mentioned anywhere in the bill. Moreover, the amendment does not appear to grant women full autonomy over the abortion process. In that sense, was this amendment truly a step in the right direction?

The concept of abortion has always been contentious. Indeed, there is a stark clash of ideals between the two ethically distinct concepts, pro-life and pro-choice. The essential components of a person’s reproductive rights, (in the instant case, abortion) are autonomy and dignity. Autonomy and abortion can be viewed as interconnected, yet conflicting terms. The principle of autonomy follows that an individual must have the right to take the final decision, after being provided complete information regarding the act. It implies that the individual has the right and the capacity to deal with matters concerning their health, and would do so according to their own moral understanding of the same. This concept of autonomy, developed in contemporary bio-ethics, play an important role in abortion law practices. Abortion may be seen as an issue that concerns the autonomy of pregnant women, by recognizing her right to choose. Therein lies the connection between the concepts of autonomy and abortion.  Therefore, for the case in point, the practice of regulating the choice of abortion, interfering with the woman’s autonomy, is problematic. The final decision must rest with the mother and only the mother.

The present amendment has its merits. In fact, it has raised the upper limit for abortion from 20 to 24 weeks, a practice adopted by several countries around the world. It also recognises the right to abort in the case of rape. Finally, the use of the term “partner” as opposed to “husband” may draw the conclusion that women outside of marriage may also avail abortion without constraints.

However, abortion itself is treated as a taboo in India. Even though married women in India have the legal right to abortion, they face challenges. According to traditional schools of thought, abortion is a transgression against divine laws and this engenders shame and stigma associated with pre-marital sex and abortion in society. This stigma is rooted in the concept of inherent gender discrimination, where a woman’s worth is measured by her role as wife and mother. As written by Simone de Beauvoir, “Women has ovaries and a uterus; such are the particular conditions that lock her in her subjectivity.” She goes on to quote Michelet, “humanity is male, and man defines woman, not in herself, but in relation to himself; she is not considered an autonomous being“.

In this light, the omission of the word “abortion” in the amendment is no surprise. Rarely is the woman seen as an independent being, unimpeded from making choices regarding her reproductive health. However, governing the latter was seemingly never the intention of the MTP act. In fact, a provision of the act begins with a precondition, “Notwithstanding anything contained in the Indian Penal Code…”. Consequently, we may understand that the MTP act is seen less as a procedure aiming to protect women’s health, but rather as means of ensuring the protection of medical practitioner from any penal provisions in the Indian Penal Code. The bill does not, in any manner, focus on women’s rights, failing to mention provisions regarding safe abortions.

Article 3-(2) of the bill states that the doctor will allow an abortion only if there is substantial risk to the physical and mental wellbeing of the woman. In all situations, consent of the medical practitioner is necessary. Where the pregnancy is more than 20 weeks, but less than 24 weeks, consent of two medical practitioners is compulsory. Although abortion is allowed in situations of rape, foetal abnormalities and failure of contraceptive devices, it also means that the final decision to go ahead with the abortion lies with the medical practitioner, and not with the mother. Where, a situation may arise that a woman does not fall into the above categories, but still does not wish to carry the child to term, the medical practitioner may deny the abortion for any number of reasons; yet there is no provision keeping a check on this. To that end, women become secondary decision makers with matters concerning their own bodies. If a woman does not have complete control over her reproductive health, are we not diminishing the principle of autonomy as we know it?

Astonishingly, even though the Supreme Court in India recognised the women’s right to make reproductive choices, a facet of their personal liberty as determined in Mrs. X v. Union of India 2017, the current bill simply fails to recognise it. Additionally, in K.S. Puttaswamy v. Union of India 2017, autonomy over reproductive health was recognised as a fundamental right deriving from the right to privacy. The Amendment Act contradicts the Apex court’s recognition regarding matters concerning a woman’s body and does not uphold the fundamental right that has been recognised in the above cases.

The clash of opinions on whether abortion is morally right will seemingly remain in the foreseeable future of contemporary society. Nonetheless, should women choose to go ahead with an abortion, regardless of the reason, they must be adequately protected by the law in doing so. Hence, women must have complete control over that decision, to bring or not bring a child into this world. This and only this would be a true recognition of female autonomy and uphold gender equality in society.

In conclusion, the role of the law and the state, in cases concerning reproductive health, must be limited to providing quality care, rather than protecting medical practitioners or regulating the decisions of women in question. Overall, the bill is a step in the direction of broadening women’s rights – but is it good enough?



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This post was originally published on LSE Human Rights.