Abortion laws: When the one with the uterus doesn't get to decide

As a woman, do I have control or decision-making autonomy and power over my own body?

It seems not, as indicated by the latest judgement by the Supreme Court of India, disallowing a married woman to abort a pregnancy of 27 weeks gestation. In her petition, she expressly indicated her unwillingness to continue with the pregnancy. The judgment brings back into focus the conversation around women’s lack of control and autonomy over their physical, mental and reproductive health.

The current case has brought forward a woman who is married and has two children. She is currently breast-feeding her second born and became pregnant during lactation amenorrhea. When she realised that she was around 24 weeks pregnant, her efforts to terminate the pregnancy started immediately, but she was denied services by the medical professionals she reached out to. Finally, she was forced to approach the courts to avail of the legal services.

Steps taken by the court

Two multi-judge benches of the apex court scrutinised the case. The honourable court, in its wisdom, spent precious time persuading the woman to continue with her unintended pregnancy.

The esteemed medical board, comprising doctors from the All India Institute of Medical Sciences (AIIMS), New Delhi, set up to provide guidance to the Supreme Court, said the “baby is viable and has a reasonable chance of survival” and that there were no foetal abnormalities present. The medical board suggested that the woman’s mental health could be managed through other medical protocols.

Finally, based on the medical board’s report, the order came when the woman was 27 weeks pregnant, and the honourable judges decided that she must continue with her pregnancy and give birth.

No space for autonomy

The reasons cited were that the gestation limit of 24 weeks had passed and that the foetus was ‘viable’. They also suggested that she could give up the infant for adoption. The judgment, in all its prudence, did not take into account the woman’s autonomy and her own desire not to have a third child because of extenuating financial and mental health-related circumstances.

The men sitting on the Supreme Court bench may sympathise with the woman but will not fully understand the emotional cost of this judgment. No one talked about the physical, financial, emotional and mental trauma not only of continuing with the pregnancy, but also of giving up the infant for adoption.

Did anyone consider the adverse impact on the foetus of the ongoing medication prescribed for her for postpartum depression? The judgment also did not take into account the fact that mental health is one of the grounds on which a pregnancy may be terminated, nor did it factor in the fact that the woman was already under treatment for depression. In a way, the ‘mother’s’ mental health took a back seat while the primary focus was the ‘foetus’.

A 5-decade-old Act

The Medical Termination of Pregnancy (MTP) Act of 1971 is over five decades old. Yes, it is progressive and permits a woman to terminate a pregnancy for a range of reasons, and was passed by the Shantilal Shah Committee after considering the socio-cultural, legal, medical and religious aspects of abortion. It recommended legalising abortion to prevent maternal morbidity and mortality.

However, the law, while being liberal, curtailed a woman’s right to abortion by making stringent requirements for service provision and had a caveat that a medical professional should authorise the need for termination.

It was amended in 2002 and then again in 2021. The most recent amendments were applauded by some as it gave unmarried women the same rights as married women and increased the gestation age from 20 to 24 weeks for “certain categories of women” including rape/incest survivors and other vulnerable women, and for women whose marital status has changed during the pregnancy (widowhood or divorce).

The Amendment calls for the formation of medical boards to decide on cases of termination beyond 24 weeks with the hope that this would reduce the number of cases that come to the court for abortions beyond 24 weeks.

Non-women-centred

Yet, the Act and the subsequent amendments are not woman-centred. It reiterates deep-rooted patriarchal social norms that dictate that the decision to terminate a pregnancy cannot be taken by a woman herself but only by the medical professional providing these services.

In effect, it controls women’s autonomy and their right to take decisions about their own bodies. It negates the very purpose of the MTP Act by giving control to medical doctors and does not account for their own biases or fear of prosecution under different Indian Penal Code laws or conflation with other laws like Protection of Children from Sexual Offences Act, 2012 (POCSO Act) or The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (PC&PNDT Act) of 2003.

India is committed to advancing the sexual and reproductive health and rights of women, as is evident from the programmes and policies implemented by the Union government. A number of forward-thinking judgments have been passed in recent times by the honourable courts and justices which recognised fundamental rights to privacy, dignity and bodily autonomy.

Despite these efforts, women in India continue to face obstacles in accessing safe and legal abortion services and the translation of law into access is a challenge.

Who decides?

The conversation then boils down to control over one’s body — who decides about the woman’s body? Is it the woman? Or the family and the society? Or is it the medical professionals? Or, in the final accountability, the legislative framework of the country?

Isn’t it time when we as a nation recognised that a woman is capable of taking decisions over her body and that she has full right and autonomy to decide whether she wants to continue with a pregnancy or not?

It should not be bound within the legal framework of the MTP Act. We need to work towards ensuring that sexual and reproductive rights, along with abortion, are available to every woman as a right. Women should not need the permission of a medical professional or the justice system to terminate an unintended pregnancy.

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal.)