(This is a guest post by Gauri Pillai.)
This post examines the recent writ petition filed in the Supreme Court of India, challenging the constitutionality of certain provisions of the Medical Termination of Pregnancy Act, 1971 (‘Act’). The Act permits termination up to a period of 20 weeks. It requires the approval of one medical professionals for termination prior to 12 weeks, and two medical professionals for termination between 12 and 20 weeks. Termination is permitted only when continuation of pregnancy would cause grave injury to the physical or mental health of the pregnant woman, or where there is substantial risk that the fetus, if born, would suffer from such physical or mental abnormalities so as to be seriously handicapped (Section 3(2)). If the pregnancy is caused due to rape, or failure of contraceptive device used by a ‘married woman or her husband’, it is presumed that there is grave injury to the mental health of the woman (Explanation, Section 3(2)). Beyond 20 weeks, the Act permits termination only if ‘immediately necessary to save the life’ of the pregnant woman (Section 5).
The Act, the petition argues, imposes a severe restriction on women’s right to ‘reproductive choice’, that is, ‘the right to choose whether to conceive and carry pregnancy to its full term or to terminate, [which lies] at the core of one’s privacy, dignity, personal autonomy, bodily integrity, self-determination and right to health, recognised by Article 21 of the Constitution’. This is because termination, even within the first trimester, is permitted only upon fulfilling certain conditions, set out above; termination on account of fetal abnormality is allowed only up to 20 weeks; and finally, termination beyond 20 weeks is restricted to instances ‘immediately necessary’ to save the ‘life’ of the pregnant woman.
By critiquing these restrictions for being excessive, harsh and disproportionate, the petition mounts a challenge to the Act under Article 21. However, I argue, the petition does not interrogate, and dislodge, the assumptions that lie behind these restrictions. Instead, it takes these assumptions as given and works within them, to argue for more expansive rights.
The Presumption of Motherhood
The Act is premised on two fundamental assumptions.
First, the Act views women primarily as mothers, and pregnancy as natural and inevitable. This is indicated by provisions of the Act which allow abortions only under exceptional, adverse circumstances, suggesting that the default option for women is to continue with their pregnancy. It could be argued that women’s right to an abortion is restricted to exceptional situations in order to balance the interests of the woman against interests of the fetus. If so, the present framing of the Act implies that in exceptional, adverse circumstances, the interests of the woman take precedence over that of the fetus. However, in the absence of such circumstances, the interests of the fetus override that of the woman.
This framing assumes one of two things (or both): (a) in the absence of exceptional circumstances, women are happy to continue their pregnancy; and/or (b) in the absence of exceptional circumstances, women should be expected to continue their pregnancy. In case of (a), it is assumed that there would be no harm to women’s interests because women, under ordinary circumstances, would want to continue their pregnancy (and be mothers). For instance, in the landmark decision of Suchitra Srivastava v Chandigarh Administration, the Supreme Court observed, ‘the termination of pregnancy has never been recognised as a normal recourse for expecting mothers’. Since there is no harm to women’s interests, fetal interests are given priority. In case of (b), it is assumed that the harm to women’s interests from continuation is lesser than the harm to fetal interests from termination. This is premised on the assumption that even if the individual woman does not desire the pregnancy, pregnancy is natural and inevitable, something all women go through. Therefore, in the absence of exceptional circumstances, the harm from continuation of an unwanted pregnancy is minimal. As a result, in these circumstances, the harm to women’s interests from continuation of pregnancy is considered to be lesser than the harm to fetal interests from termination. Thus, the Act starts from a position where women are seen first and foremost as mothers, and pregnancy as natural, inevitable, and desired by all women. This assumption then influences the assessment of harm and balancing of interests carried out by the Act. This is not to say that no other considerations influence the balancing, but to highlight that the current framing of the Act suggests that presumptions regarding women’s role as mothers is one such consideration.
The petition appears to resist this narrative by asking for abortion on demand within the first trimester. However, a close reading of the petition reveals that the reason behind this claim is not the recognition that it is ‘normal’ for women not to be mothers, and opt for termination. Instead, the claim is made because the health risk to women from continuation of pregnancy is more than the health risk accompanying termination during the first trimester. Thus, even in asking for abortion on demand within the first trimester, the petition fails to dislodge the gendered assumption underlying the Act which views women as mothers, and pregnancy as natural and inevitable; instead, it merely works to expand the instances of termination permitted within this narrative.
A Strand in a Gendered Web
Second, the Act views abortion as an ordinary medical procedure, with no larger social import. This is obvious in the very title of the Act, which refers to ‘medical termination of pregnancy’, rather than ‘abortion’; the Statement of Reasons or Objects of the Act which describes abortions as ‘health measures’ to alleviate ‘danger to the life or risk to the physical or mental health of the woman’, and prevent ‘wastage’ of her life; the predominance given by the Act to the opinion of medical professionals, viewing them as co-decisionmakers along with the women; and, the reliance placed by courts on the decisions of Medical Boards—set up to weigh the risk of continuation of pregnancy against the medical risk of termination—in allowing abortions beyond 20 weeks, under Section 5 (see here, here and here). Women’s decisions to undergo an abortion are overridden if the Medical Board opines that the continuation of pregnancy is ‘less hazardous’ than termination at that stage (see here). Thus, the medical risk of termination becomes the primary consideration while making a decision under the Act.
This tendency to prioritise the medical risk of termination over other considerations, including the woman’s choice, is evident in the petition as well. For instance, the petition constructs the right under Article 21 in the following terms: ‘Where the termination of pregnancy itself does not involve risk to the physical life of the woman, her right to choice…[has] to be respected’. Similarly, as mentioned above, the petition argues for abortion on demand within the first trimester only because ‘there is no dispute [that] the risks involved when pregnancy is carried to full term far outweigh the minimal and negligible risks involved when pregnancy is terminated in the first trimester. Keeping this in view, the State cannot make any law restricting the right of the woman seeking abortion’ during the first trimester. In this sense, the petition follows the Act in viewing abortion primarily as a medical procedure, by respecting women’s choice only when medical opinion favours it.
However, this understanding of abortion is reductive, and ignores that at the centre of abortion lies a group of persons—women—who have been historically oppressed on account of their reproductive ability. The fact that women can reproduce is translated into the essentialist, universal assumption that women must. These gendered expectations, however, do not end at the moment of birth. Women are not only expected to bear children but also assume primary responsibility for their care. This largely unilateral responsibility of child-care has confined women to the domestic sphere, and maintained the distinction, and the hierarchy, between the public and private spheres. Motherhood and paid employment are constructed as incompatible. Several empirical studies demonstrate that the presence of young children in the house is associated with lower female workforce participation in India, with women quitting work after childbirth (see here and here). At the same time, childcare—women’s contribution in the home—has a low status in society. Though ‘reproduction entails incredible liabilities and workload, [it] is still considered to be of lesser value compared to men’s engagement in production that yields market value’. In this sense, pregnancy is not an isolated nine-month episode in the life of a woman; it is instead located within gendered structures of power, which require women to bear children and raise them, compelling them to sacrifice other opportunities they value, while, at the same time, devaluing their labour. Articles 14 and 15 provide constitutional grounding to this perspective on pregnancy. However, the role of these provisions is outside the scope of the specific argument being made by this post, and is thus not developed.
Against this context, abortion cannot be viewed as just another medical procedure. Instead, it should be seen as allowing women to take back control over their bodies and lives—control they have been historically denied, and on the basis of which they have been disadvantaged. This recognition is absent within the petition, which argues for permitting women to undergo termination only as long as there is no threat to their life or health. In this manner, the petition places abortion on the same page as other medical procedures, where the opinion of the medical professional is given overriding priority. Through this, women seeking abortions are seen merely as patients seeking medical care, stripping away the gendered social context of reproduction in India.
Thus, the Act is deficient because it is premised on two underlying assumptions: women as mothers, and abortion as an ordinary medical procedure. The petition, in challenging the Act as restrictive and unconstitutional, does not dislodge these assumptions, and shift abortion outside these narratives. Instead, it retains the framing offered by these assumptions, and therefore constructs a limited right to medical termination of pregnancy. This might be an intentional strategy, to ensure that the claim has a greater chance of being accepted by the court. However, it is important to question whether in making this concession and failing to interrogate these assumptions, the petition, even if granted, will result in real and effective reproductive control for women.
The remedies sought by the petition include striking down as unconstitutional Section 3(2)(a) to the extent it makes termination during the first trimester conditional; Section 3(2)(b) to the extent that it imposes a 20 week limit on termination in case of grave mental or physical injury to the woman, or fetal abnormality; and, Section 5 to the extent that termination beyond 20 weeks is permitted only when ‘immediately necessary’ to save the ‘life’ of the pregnant woman. If the approach I propose is adopted, and the fundamental assumptions underlying the Act are challenged, certain remedies—such as abortion on demand within the first trimester—would remain the same. Others could, however, differ. If the balancing exercise does not start with viewing women as mothers, and pregnancy as natural and inevitable, then the balance struck between the woman’s and fetal interests could change. Similarly, if abortion is not viewed as an ordinary medical procedure, a case could be made for why the choice of a woman who wishes to undergo termination even after being informed of the risk to health or life needs to be respected. These would change the very structure of the Act, by questioning the imposition of conditions and time limits. However, even if the specific remedies do not change, by challenging the assumptions underlying the Act, the petition, if accepted, could shift the discourse on abortion, and set us on the path towards meaningful reproductive choice for women.