The Supreme Court of India, in a landmark judgement, recently permitted an unmarried woman’s petition to abort her pregnancy at 24 weeks. The verdict came after the woman moved court against a Delhi High Court order July 16 order declining the 25-year-old’s request to terminate the foetus since it was conceived out of a consensual relationship.
Noting that the law did not discriminate against married or unmarried women, the court said that it cannot deny a woman the right to abortion simply because she is unmarried. A bench led over by Justice D Y Chandrachud also noted that the amendment made into the Medical Termination of Pregnancy Act in 2021 used the term "partner" instead of a husband to cover even unmarried women.
Women in India, both married and unmarried, can abort pregnancies after 12 weeks and within 20 weeks. From 20-24 weeks, in case of an abortion, the opinion of two doctors is required and permitted only under the seven categories: - survivors of sexual assault or rape or incest;
- minors;
- change of marital status during the ongoing pregnancy (widowhood and divorce);
- women with physical disabilities
- mentally mental disabilities
- foetal malformation posing substantial risk of being incompatible with life or possibility of a child being born with physical or mental disabilities
women with pregnancy in humanitarian settings such as victims of war crimes or disaster or emergency situations as may be declared by the Government.
The 1994 International Conference on Population and Development (ICPD), as well as the Third World Conference on Women in Nairobi in 1985, recognised that several social barriers exist even for women who have the so called right to control their own bodies and reproduction. These include not just lack of unequal access to contraceptive, abortion, reproductive health or family planning services but also include socio-economic factors like education of women (and the community at large), the social status of women in patriarchal societies and other factors like caste and class in India.
While SC judgement came as a shot in the arm for abortion and women’s reproductive rights activists who have hailed it as a step in the right direction, morality remains a driving factor that decides whether or not a woman should get an abortion. And for unmarried women, the act of having unmarried sex is itself seen by many societies as illicit or even illegal.
The morality of abortion
In a 1977 paper titled Women and Abortion in Victorian and Edwardian England, Patricia Knight writes that abortion was the “easiest, cheapest, and in many cases the only available method of birth control” available o working class women and as such was accepted as a commonality of women’s everyday existence.
Knight noted that abortion was largely a woman’s affair that much of the advice and activities around abortion were carried out by womenfolk, with men remaining outside of the purview of such decisions. In fact, abortion was a significant part of women’s subculture in Victorian and Edwardian England. However, it was the men who constituted the official public disapproval of abortion which was not shared by a majority of women whose views on the matter were recorded.
The fact that laws governing women’s bodies are often decided by men, according to female foeticide crusader and gender rights activist Sabu Mathew George, may be one of the primary reasons behind the skewed morality that often drives legal interpretation of women’s rights legislation. “Look at the number of women in courts, the number of judges. Look at the number of women who become health ministers or the number of women to become Presidents of medical bodies like the IMA. Despite progressive abortion laws, interpretations often fail to acknowledge the full gamut of infrastructural and social issues faced by women when it comes to reproductive health and childbirth.”
He also adds that despite legal reforms, religion continues to play a huge part in shaping morality toward birth control and abortion.n “In Kerala, for instance, I recently visited a licenced and well-established women’s health centre run by a local IMA who head refuses to provide abortion services as it is considered ‘un-Catholic’.
In the US, the Supreme Court recently overturned the landmark 1973 Roe Vs Wade judgement that had made abortion a protected right under the American constitution. Critics have blamed rising religious Christian Right wing for mobilising support for legislation against abortion. “Initially, only the Catholics were against abortion. Now, we see a lot of protestants including those in India also in support of banning abortion,” George adds.
Activists and development sector workers dealing with reproductive health services and awareness in north-India report similar attitudes toward abortion among a majority of upper-caste Hindu households where babies are considered a "gift of God" and abortion a sin. Hindu scriptures contain criticism of abortion.
Such morality seeps down into judgments regarding abortions that often tend to ignore women's autonomy. This can be observed in the number of rape victims that have to approach courts in the country after being denied abortion services at by health authorities or police.
Out of 74 rape survivors who approached courts between June 1, 2016, and February 3, 2018, an NCBI report notes that “23 were denied an abortion based on the opinion of a medical board. What is even more disconcerting is that 13 of these 23 had reached the courts through a human rights lawyer, even when the pregnancy was less than 20 weeks. Of the 74, 39 were rape survivors (in all age groups); 18 of the 39 were denied an abortion”. In a number of cases, the women had seen a doctor before 20 weeks of pregnancy but the latter delayed the process until it was refused. No action taken against these doctors in a majority of the cases.
While the latest SC verdict might be a step in the right direction, it also raises the old debate about abortion - is it an absolute right of the woman or conditional freedom to be exercised within certain caveats decided by the state? And In the latter case, does the decision-making body fairly represent the needs of women across socio-political divides within the country? Empowering women and allowing them to assert control over their own bodies will require a joint approach between the judiciary, legislative, the medical community and civil society at all levels, starting from lab technicians to gynaecologists to Anganwadi workers who need to work together to make safe reproductive healthcare not only accessible to women but also create an atmosphere where aborting an unwanted or unplanned pregnancy does not require a judge’s permission.
