The author of this blog is Simran Kaur, a member of the HUMAN.DROITS Community.
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| Woman holding a banner that reads: 'My Body My Choice'; Picture by Brett Sayles |
In a nation grappling with the delicate balance between the reproductive rights of a woman and the importance of the life of a foetus, where do we draw the line between abortion and foeticide? As a woman, I question the extent of my autonomy over my own body. The recent Supreme Court ruling denying a woman's plea to terminate a 26-week pregnancy, in the absence of foetal abnormalities or immediate threat to the mother, underlines the stringent parameters set by the Medical Termination of Pregnancy Act. The verdict forced the petitioner, a mother suffering from postpartum depression, unable to support a third child due to deteriorating mental, physical, and emotional health coupled with financial difficulties to give birth to the child. This raises an important concern: what about the rights of the child born into a family that wasn’t ready to raise the child? Isn't it against the welfare of the child when the mother's health and limited resources are stretched thin among three offspring, none receiving the full attention they deserve? This verdict sparks a profound reflection on the intricate web of rights and responsibilities surrounding reproductive choices.
What is X v Union of India?
It is a case decided by the Supreme Court where a woman aged 27 years, a mother of 2 children, the younger one born just a year ago filed for directions to permit the abortion of her ongoing pregnancy. She stated that she is suffering from post-partum depression and the financial conditions of the parents do not allow them to raise another child. The Medical Termination of Pregnancies (MTP) Act regulates the manner in which pregnancies may be terminated. It permits a woman to terminate her pregnancy up to 20 weeks. It does not allow termination of pregnancy beyond 24 weeks unless the termination is required to save the life of the pregnant woman or there are substantial foetal abnormalities with the approval of the medical board. The Medical Board confirmed that the woman is suffering from depression and that there is no foetal abnormality present. It also confirmed that there is no threat to the mother’s life. The Supreme Court denied the woman’s plea on the grounds that both the available options, that is, stopping the foetus’s heartbeat and premature birth cannot be exercised as the petitioner did not agree to the former option and the latter would amount to exposing the child to lifelong mental and physical disabilities.
The Right to life includes the right to physical and mental well-being. Various international laws such as the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), the European Convention on Human Rights (ECHR) among others, recognise abortion as a fundamental human right. They recognise that access to abortion services is essential for safeguarding women's rights to health, privacy, non-discrimination, and freedom from cruel, inhuman, and degrading treatment.
The MTP Act in India is a progressive law that acknowledges a pregnant woman's right to terminate her pregnancy under certain conditions, especially in later stages. In the case of X v Principal Secretary Health and Family Welfare Department, the Hon'ble Supreme Court affirmed that the authority to decide on pregnancy termination lies solely with the pregnant individual. The Court emphasized that a woman's decision to bear and nurture a child is influenced by her practical circumstances, encompassing situational, social, and financial factors, all of which are significant in her choice to continue the pregnancy. The Court recognized that each situation should be evaluated individually, as it's impractical for the legislature or the Court to specify every potential circumstance that might warrant a change in material circumstances. Ultimately, the Court upheld the pregnant person's right to make decisions in consideration of her specific circumstances.
Right to Reproductive Choices
Right to abortion- a fundamental right
Issues like menstruation, pregnancy, menopause, post-partum care, and childbirth are specific to biological females. Every court and law acknowledges an individual's autonomy over their own body. Therefore, it is crucial to equally respect a woman's autonomy and not reduce them to merely a means of childbearing in such circumstances. When it comes to whether an abortion should be allowed or not, the only thing that matters is what the mother wants and what her intent is.
When abortion rights, facilities or autonomy are lacking, women are compelled to go through unwanted pregnancies, leading to severe consequences for their physical and mental well-being. This exposes them to a range of medical conditions linked to childbirth and postpartum care, including infections, weight gain, depression, anxiety, anaemia, and even pre-eclampsia, which can result in seizures, coma, and maternal mortality, all without their informed consent. It is the fundamental right of a person to decide whether they are mentally, physically, or emotionally ready to face the risks and problems associated with anything. Denying women such rights amounts to gender discrimination and inequality.
Pregnancy not only encompasses childbirth but also entails entering a new realm of responsibilities, including educating, feeding, and caring for the child. The absence of abortion rights, along with inadequate facilities, directly affects a woman's professional trajectory. This often obstructs her ability to pursue education, career aspirations, and other avenues for earning a livelihood and living a life with dignity.
Foetus is not an individual but an extension of a female body, with no individual personality
Childbirth brings with it many changes and issues that a female body has to go through. The mother deserves to have the exclusive right to make decisions regarding the child because as long as it resides within her body, it is an integral part of her, akin to any other organ. Thus, it is entirely her prerogative to determine whether she wishes to proceed with the pregnancy or not. The same view has been asserted by Justice B V Nagarathna, “It may not be out of place to note that a foetus is dependent on the mother and cannot be recognized as an individual personality from that of the mother”. Lack of means for termination of pregnancy or any person’s decision to force the pregnant person to carry on an unwanted pregnancy is against the person’s right to life and liberty enshrined in Articles 21 and 15(3) of the Constitution. The life of a foetus whether viable or not cannot be given an upper hand upon the person’s own physical and mental health as it would be equal to taking away the basic freedom, autonomy and right to life of that person.
Rights of the foetus
The right to abortion and reproductive choice is not only a woman's right but also a right of the foetus. Bringing a child into the world without being able to provide them with love and care is unjust. Unwanted pregnancies can lead to mental trauma and resentment towards the child, resulting in neglect and absent parenting. This environment of conflict, frustration, and financial strain affects the well-being of the child. Every child deserves parents who are prepared for the responsibilities of parenthood and can offer them love and care.
Absent parenting and neglect not only impact a child’s childhood but their whole life. There is a positive correlation between the number of crimes against children and fertility. A lack of education regarding reproductive health has had a profound impact on the lives of countless children, particularly in non-urban areas of India. This often leads to larger family sizes and insufficient financial resources to meet their needs. The vicious cycle is that females of poor families get married at a young age and typically have many children. These females receive little formal education, and they lack the right of decision-making, especially with regard to how many children they will have. Many children in such families grow up facing neglect, perpetuating a cycle of poverty. In many parts of Bengal, due to limited knowledge about reproductive health, families with low incomes have more than four or five children per woman. The eldest daughter is often burdened with caring for the younger ones while parents and older brothers earn meagre incomes. This situation has unfortunately driven some girls into prostitution as they seek love outside of their families, often becoming ensnared in dangerous situations. This creates a cycle of poverty and abuse. Absolutely, the repercussions of unwanted pregnancies extend to increased instances of child beggars, kidnapping, and children being forced to work at very young ages. Sadly, in all these scenarios, girl children are often subjected to even more severe consequences than their male counterparts. This gender disparity compounds the challenges faced by these vulnerable children.
Rather than imposing restrictions on unwanted pregnancies, the emphasis should be on promoting responsible pregnancies and reproductive health.
Conclusion
In the dilemma between a woman's reproductive rights and the potential for life, we must confront a critical question: where do we draw the line between abortion and foeticide? The right to abortion is crucial, especially in countries like India, where the rate of population growth is very high. The financial resources of a family and the country are strained when there are more children. As important as it is for a woman to exercise autonomy over her body, it is equally important to provide a child with a conducive environment for growth. In a situation where the mother herself is experiencing depression and the family's resources are limited, it is not in anyone's best interest to impose a third child upon them. Although adoption is an option, it is upon the authorities to assess how viable that option is in a society where motherhood is revered, and a child is often considered solely the mother's responsibility, in a culture where motherhood is viewed as the ultimate goal for a woman.
It is unfair to force an unwanted pregnancy upon a mother and it is equally unfair to force an unwilling mother upon a child. Abortion is a fundamental right of a woman.
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