By Nivedita Menon
There is a complicated relationship between abortion as such and the selective abortion of female foetuses. This dilemma is one with which the women’s movement in India has been grappling since the late 1980s. In my discussion of this dilemma, I would like to move away completely from Satyamev Jayate, the television programme, (on which a discussion has been initiated by Shohini Ghosh on kafila.org). In any case, there the focus was on women who were forced to have abortions after sex determination, on which there is little to debate.
I am concerned here with the more troubling question of how to understand a situation in which women themselves decide to have sex selective abortions. I outline here the main contours of feminist debate and activism over close to three decades, that have circled around complex understandings of ethics and agency in the context of women’s control over their bodies. I conclude by stating my own position on the issue, which is not necessarily the position taken by the movement as such.
Although the practice of selective abortion of female foetuses is restricted to India and to some South Asian communities in other parts of the world, its very possibility creates a more fundamental crisis for feminism. This is because feminists generally support the unconditional rights of women to safe and legal abortions. We see this as necessary because pregnancy and child-rearing are for all practical purposes, the sole responsibility of women. We should therefore, have the right to choose when and under what circumstances we will bring a child into the world, for we should be able to control what happens to our bodies and to our lives. The right to safe and legal abortion is an essential right of self-determination.
In the West, this right has always been challenged and circumscribed by the Christian right-wing, and feminists there even today, have to struggle to retain it. Anti-abortion campaigns emphasise that the foetus is a person and that it has an independent right to life, and so their campaigns position themselves as ‘pro-life’, while feminists call themselves ‘pro-choice’.
The landmark judgement in the USA was Roe v Wade (1973), which defended the right to abortion as a right of privacy. However, this right is precarious, because many states did not repeal pre-1973 statutes that criminalised abortion, which could again be in force if Roe v Wade is reversed. Since there is a powerful anti-abortion lobby in the USA, this possibility cannot be ruled out. Many American feminists have been uncomfortable about seeing abortion in terms of the rights of individual women and locating it in the realm of privacy, for it suggests that pregnancy is an individual and private matter. They stress rather, that under conditions of pervasive sexism and patriarchy, decisions about pregnancy are sometimes out of the control of women. Moreover, they would like to see decisions about pregnancy and abortion as set within networks of responsibility rather than within the realm of ‘individual’ rights. We will return to these questions later.
In the United Kingdom, abortion has been legal since 1967, but continuously challenged, most recently in 1987 by a Private Member’s Bill, which resulted in substantial debate, but was defeated. In many other countries, abortion is illegal, or is permissible only to save the life of the woman, or only permissible up to the first trimester.
In India abortion has been legal since the Medical Termination of Pregnancy (MTP) Act of 1971, which came about not because of feminist concerns, or concern for women, but purely as a method of population control. Abortion is legal up to the second trimester, but it is at the absolute discretion of medical opinion. A study of the MTP Act points out that the pregnant woman cannot simply state that it is an unwanted pregnancy. She must provide explanations that fit into the conditions listed in the MTP Act, and it is medical opinion that has the power to decide whether the woman meets the requirements of the Act. That is, expert medical opinion must certify either that the pregnancy involves a risk to the life of the woman or would cause grave injury to her physical or mental health, or alternatively, that there is a substantial risk that a seriously handicapped child would be born.
The Act does not define ‘health’, ‘substantial risk’, ‘seriously handicapped’ and so on. It is left to the medical practitioner to decide how these terms are to be interpreted, although two explanatory notes indicate that pregnancy in the case of rape (excluding marital rape) and contraceptive failure (in the case of married woman) may be treated as causing injury to mental health. In fact, even the words ‘abortion’, ‘miscarriage’ and ‘termination of pregnancy’ have not been defined, which leaves the medical opinion on these matters sacrosanct.
Thus, the currently liberal-seeming provisions of the MTP Act could become restrictive without, a single word of the text being altered (Jesani and Iyer 1993).
But in general in India there has been no consistent and organised opinion against abortion.Far from having to struggle for the right to abortion, feminists have found themselves raising questions about the widespread sanction for abortion rather than contraceptives, especially condoms, as a method of controlling population. This means that the physical cost of population control is borne almost entirely by women. Further, feminists have been critical of governments using incentives and disincentives to influence the decisions of government employees regarding family size, and the imposition of the small family norm even where factors like high infant mortality rates and insecurity of incomes make it rational to have large families. In the wake of the National Population Policy 2000, several states have announced population policies that have a strongly punitive and anti-democratic thrust. Clearly then, the legal sanction for abortion does not arise from feminist principles at all, but it exists, nevertheless.
(Although I must add that of late there have been some very disturbing advertisements on television that promote contraception such as the pill and the morning-after pill, by contrasting these with abortion presented as the most shameful and terrifying option that a woman could decide upon.)
It is another matter that despite the MTP Act the number of unsafe abortions continues to be high and around 20,000 women die every year due to abortion-related complications, most of which are due to their being performed illegally, that is, by unqualified personnel. Medical facilities and trained personnel are inadequate, especially in rural areas, and in addition, there is the widely held belief that abortion is illegal. Legalisation has not, in short, been buttressed by safe and humane abortion services.
But since the 1980s, these issues have taken a back seat in the face of rising instances of selective abortion of female foetuses. Indian feminists have successfully campaigned for legislation restricting sex testing during pregnancy. The Preconception and Pre Natal Diagnostic Techniques (Prohibition of Sex selection) Act (PCPNDT) came into effect in 1994, but the sex-ratio at birth has continued to fall, showing that sex-selective abortion continues unchecked.
The problem is that the tests routinely used to monitor a pregnancy, for instance, ultra- sound, also reveal the sex of the foetus. It has become a crime to give parents this information, but if a doctor does so, and the woman has an abortion in another clinic, the link between the two is impossible to trace. Government initiatives to address what has come to be called the ‘skewed sex ratio’ have thus increasingly taken forms that threaten to restrict access to abortion itself. Recently for instance (2011), Indian feminists protested strongly at a statement made in the Maharashtra Legislative Assembly that ‘female foeticide’ should be treated as murder. There were a hundred signatories (including myself) to a letter to the Speaker of the Assembly that said in part:
First of all, abortion should not be referred to as ‘foeticide’, which has anti-abortion implications that we reject, for we believe that all women have the right to decide when and whether to bear and give birth to children. Making sex selective abortions (wrongly referred to as ‘female foeticide’), a murder charge will only increase illegal abortions and also make access to safe abortion difficult for women, who already do not have many choices regarding their own reproductive rights. Safe and legal abortion is a woman’s right. Abortion is legal in India. The MTP Act, 1971 spells out the conditions under which it can be carried out.
Sex selective abortion however, amounts to discrimination against a particular sex, in most cases, the female sex. Sex selection in favour of the boy child is a symptom of devaluation of female lives.
It is important to remember that those who want to use abortion for elimination of the female foetus have to first determine the sex of the child. Rightly, it is this process of pre-natal selection which is a crime, and it is being regulated and monitored through the PCPNDT Act.
Unless we are able to deal with all those social and economic factors that are going into the culture of son-preference and daughter-aversion, the child sex ratio will go on plummeting. But the solution is not to curb the legal right to abortion. Rather the PCPNDT Act should be enforced, and clinics that offer prenatal sex testing weeded out…
Checking pre-natal sex selection requires the proper implementation of the PCPNDT act and monitoring of sex-selective procedures by the government, and cannot be achieved by introducing such draconian measures that curb women’s right to safe and legal abortion.’
Continued on next page …