My Body Belongs to the Liberal State:

While the overturning of Roe vs. Wade was addressed with widespread public outrage in the US, it served as a reminder to the Indian public that something called The Medical Termination of Pregnancy Act exists in the country. Netizens took to social media to rejoice over the liberal abortion laws in India, allowing legal access to abortion up to 24 weeks. “Yay! We beat the US at progressiveness” became the focal point of discussion. The question of bodily autonomy under the law is hardly treated as a concern in its own right and often ends up becoming a minor parameter in measuring the Indian state’s triumph over the West in terms of modernity.

The Medical Termination of Pregnancy (Amendment) Act, 2021, now allows legal and safe access to abortion to all women for upto 20 weeks of pregnancy and upto 24 weeks in cases of sexual assault, rape or incest; women being minors; widowhood or divorce during pregnancy; physical or mental disabilities; foetal malfunctions; humanitarian concerns and emergencies. However, looking back at the Act’s history, its cite of legislation lies in the socio-economic exigencies of the state and not in a serious concern for bodily autonomy.

Population control has been a chief concern of the Indian state, with India being the first country to launch a National Programme for Family Planning in 1952. Under this programme, Accredited Social Health Activist (ASHA) workers were deployed in numerous rural and urban settings to increase awareness on the available methods of contraception. However, a study from last month concluded that over the past 70 years, ASHA workers have been closely promoting female sterilisation. This practice usually involved an initial session on available methods of contraception, followed by a number of formal and informal sessions with women on the benefits and necessities of sterilisation as a means of family planning.

The panic around growing population results from the oft-quoted Malthusian Pessimism that the quantity of food available per head decreases with an increase in population. However, the Malthusian Model has lately been debunked and challenged on several grounds. Historically, food scarcity has not been a result of the increasing population, but one of negligent state policies and faulty resource allocation. The spectre of resource scarcity is more a product of capitalist accumulation than of increasing population. Family Planning programmes in India hardly ever incorporated any strategies for better resource management. As a result, there arises a need for more helping hands in the family – thereby placing the burden of reproducing the class of workers in the family on women. In a society where increased emphasis is placed on the need of a male heir, women are forced to reproduce despite giving birth to multiple female children or even in cases of major health risks - particularly when access to healthcare is limited. These Family Planning Programmes, instead of fighting the arbitrary burden of reproduction placed on women, made regular attempts at sterilisation of their bodies.

When the Family Planning Schemes did not yield high results, many state governments resorted to economic and political restrictions on families having more than the state-mandated number of children. A recent bill in this direction being the Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021, which aims to limit government jobs and subsidies for families with more than two children. It also mandates additional benefits for families where either of the partners undergo voluntary sterilisation. This bill, if taken as a precedent, can spell disastrous consequences for women, such as forced sterilisation, non-consensual termination of pregnancy and unsafe home births to avoid documentation.

But how does this tie up with MTP? MTP came into force in 1971 – in a decade when the state’s concerns with the rising population were mounting. The impetus for the Shantilal Shah Committee report, which formed the basis of the Act, was derived from a UN mission in 1965. The UN mission’sevaluation of India’s population control laws, suggested legalisation of abortion. Although the committee denied any relationship between population control and legalisation of abortion, a number of MPs in the parliament welcomed it as an effective addition to the family planning policies in place. It was suggested that access to abortion would put an end to the concept of giving birth until a male child is conceived. Sex-determination was still legal and would not be criminalised until 1994, when the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act was passed to ban the use of ultrasound and amniocentesis for this purpose. However, PCPNDT places the entire onus of preventing sex-determination on the medical authorities, who are easily able to work their way around the act.

Under the guise of liberal abortion laws, it is often difficult to determine whether the consent of the pregnant individual is their own or manufactured. Although the Act only explicitly asks for the consent of the woman for terminating a pregnancy, before the 2021 amendment, unmarried women engaging in consensual sex were exempted from a large chunk of abortion rights granted by the act. The law, for the longest time, viewed conception as something that is ‘done to’ women – legislating abortion only in cases of sexual abuse, rape, failure of contraception, etc. Thus, conception was categorised into two types – violent non-consensual or family-centric. Nowhere did the question of women’s autonomy or consent figure in the discourse. A debate on the same was generated by a recent Delhi High Court legislation that barred an unmarried pregnant woman from terminating a pregnancy of 24-weeks. The legislation was later overruled by The Supreme Court of India, but raised important questions on the association of reproductive rights with marital status in law.

Moreover, abortion remains a heavily stigmatised issue, and doctors often end up actively denying patients an abortion on ‘moral grounds’. In pregnancies over 20 weeks, medical practitioners have a greater say in the matter than the pregnant individual. Moreover, the Act has no provisions for penalty or punishments for violating an individual’s right to abortion.

MTP has evolved progressively over time, however, it refuses to address the crucial question of bodily autonomy. More issues with the act come up if one looks outside the binary. With the Transgender Persons (Protection of Rights) Act, 2019 requiring trans-persons to exclusively obtain a certification for their identity and the MTP act making no provisions to cover trans and non-binary individuals, their right to abortion under MTP remains ambiguous. So, did we really beat the US at progressiveness? Or did we play into a similar but more subtle dynamic of control over bodily autonomy?

Editors: Maddy M, Sophie G, Joyce P