She Too Has a Beating Heart
Abortion: The Right to Life Debate
Restricted Abortion: A Harbinger of Omen
Think for a moment that a woman is denied or restricted a say in an issue that causes substantial impact on several aspects of her being. As unfair as it sounds, this is exactly what a restrictive abortion law does. Can such a denial be justified on legal or ethical grounds? Should a woman’s future state be allowed to be determined by someone other than herself? In case of such curtailments, who dares to take responsibility of the ramifications that follow? These are questions that provoke fervent debates across the globe.
Abortion is a medical procedure which is undertaken to terminate pregnancy. This can be sought for innumerable reasons, some undesirable, like preference for ‘male child’, but many legitimate and are required. The legitimate need for abortion in cases of unintended or unwanted pregnancy may arise due to the fear of societal backlash, health threats, in case of rape victims, breakdown of relationship, failure of contraceptive used and many others. Those who espouse abortion rights propound arguments that revolve around repercussions, both in terms of women’s medical health and their autonomy, which may occur in the absence of legalisation of abortion.
Repercussions on Health
Many women, who are denied abortion either due to an absence of legal framework or due to restrictive legislation, if the requirement be, undergo the termination through dodgy, amateurish manner, hence endangering their lives. Threat to lives, in case of unsafe abortion, is mainly caused by haemorrhage, infection, sepsis, genital trauma, and necrotic bowel. Millions of women in India find themselves with an unintended or an unwanted pregnancy for various reasons, due to which they wish to opt for abortion, and out of this, as many as 56% abortions are unsafe; 8.5% of all maternal deaths in India are due to unsafe abortion; and 10 women die every day due to this reason. Other ramifications of unsafe abortion include loss of fertility, internal organ injury and psychological damage.
Violation of Right to Life
“No woman can call herself free until she can choose consciously whether she will or will not be a mother.”—Margaret Sanger
To uphold the autonomy of women, those who wish to end their pregnancy should not be thwarted from doing so under any circumstances, as long as the reason for it is not illegal, especially if the consequences of such prevention may afflict harm to the mother or the child, in any manner.
However, akin to any other social issue, there have been contestations on abortion rights of women as well. The primary argument advanced by those against abortion is that the right to life of the foetus supersedes the right of a woman to exercise bodily autonomy. The general conception of morality in which an act of killing is considered immoral forms the premise of this argument.
What this opposition overlooks is the broader interpretation of the right to life which is not restricted to the mere right to live. It includes the right to leading a life of dignity and exercising complete bodily autonomy. One feels dignified when there is non-interference in the choice of the individual on what remains attached to their body and how it is used. Thus, it is imperative that bodily autonomy be an inseparable right from the right to life of a woman. Yet another intrinsic aspect of right to life is that of leading a decent standard of living. Having to nurture a child from an unwanted pregnancy can take a toll on the financial, social and psychological condition of women. Single mothers often face societal backlash and negligible familial support to raise the child. The social pressures added to the financial burden on the woman take a massive toll on her mental health too. Thus, her psychological well-being is also affected. All these factors, financial, social and psychological, violate the right to live a dignified life which is inseparable from the right to life of a woman. This denial of a decent standard of living and a dignified life due to these restrictive abortion laws is not limited to the mother. An unreceptive nurturing in early stages of development of the child due to the financial and psychological inability of the mother to provide the minimum care and standard of living to her child violates the right to lead a life of dignity thereby violating their right to life. This violation highlights the contradiction in the argument of those who advocate for the right to life of a foetus while arguing against abortion. Thus, denying abortion on unreasonable grounds violates the right to life of the woman and her child in both the restricted, as it endangers the life of a woman, and broader interpretation of this right.
Even if a narrow interpretation of right to life is considered. There is no reason to believe why the right to life of an entity which has not even formed its being should take primacy over the right to life of an existing individual with mental, social and financial bearing attached to this decision. The gruesome effect of giving primacy to the right to life of a foetus over the right to life of the woman can be seen in Poland where a pregnant woman choosing to get an abortion lost her life because the doctor feared the recently passed retrogressive abortion law which severely restricts abortion. There have been massive public protests saying that, “she had a beating heart too” as an opposition to the pro-life argument made by anti-abortionists. Yet another problematic and orthodox law passed, which has faced massive criticism from activists and women rights advocates globally, is that of Texas. This law goes a step further by covering within its ambit even those who assist the woman in getting an abortion and a lawsuit can be filed by individual citizens. It is one of the most restrictive laws in its application as it bans abortion after the sixth week of pregnancy. That is the time when women don’t even realize that they are pregnant. Thus, in effect this law totally bans abortion by excluding any exceptional circumstances like incest or rape too.
Light at the End of the Tunnel
Since the Soviet Union became the first country in the world in 1920 to have realized the idea of legalisation of abortion, many countries have taken a leaf out of its book by bringing in relevant legal reforms. However, even in the 21st century, the menace of criminalization of abortion exists in several countries around the world. There are currently 26 countries where all abortions are illegal, even if the pregnancy is a result of rape or incest, while in 37 countries, abortion is illegal unless it saves the mother's life, and in many others, it is illegal unless used to preserve the mother’s health.
India shared participation in the coterie of those who criminalized abortion, before approving the Medical Termination of Pregnancy Act, 1971. About half a century down the line, abortion in India is still beset by many factors. Despite the latest liberalization of the terms of the legislation in 2021, the law doesn’t recognize abortion as a woman’s choice that is sought ‘on demand’. A bid for legal abortion needs to be approved by one doctor, in case of termination within 20 weeks, and two doctors, in case of this figure being 24 weeks. This severely restricts women’s ‘autonomy’ in pregnancy termination, which gets further hampered as although the amended act allows abortion until 24th week of pregnancy, it is only for special category, vulnerable women.
This immoderate intervention by governments in practices where women should be accorded autonomy is a failure of implementing the ideal of liberty in the truest sense as pronounced by the Supreme Court of India, in Suchitra Srivastava v. Chandigarh Administration, that a woman's right to make reproductive choices is also a dimension of 'personal liberty' under Article 21 of the Constitution and this right incorporates the choice to procreate as well as to abstain from procreating.
Although, there have been certain progressive judgements like the one mentioned above, to execute these ideas in letter and spirit, the country needs to accord to women the absolute right of abortion by including doctors only as facilitators rather than decision makers. There exists a pressing need to legalize abortion in countries where it is still proscribed by the state. The upper ceiling of termination should be eradicated. Equally important is to bring in laws that establish proper procedures and ensure thwarting of any misuse of the legal provisions. Awareness regarding legal procedures for abortion is still lacking amongst many less developed communities, while in the medical fraternity, stigmatization of abortion prevails on moral and religious grounds. The state should take adequate measures and launch programmes to counter these and many other perils that impede the overall reproductive rights of women.
Submitted by,
Priyanjali Malik & Anushka Satya,
National Law University, Delhi