INTRODUCTION
Identification of women with their physical bodies and the constant pressure to conform to socio-cultural norms are the primary reasons for their oppression in an inherently patriarchal society like India.[1] Women’s right to determine their sexuality and their will in deciding on matters of reproduction and bodily autonomy are factors that are seldom taken into consideration while forming abortion laws. Society tries to enforce compliance to its accepted notions of public morality and appropriate behaviour[2]. In we shall look into the sociological perspective of abortion laws and understand how sociology serves as a tool to understand abortions. It also deals with the evolution of abortion laws in the 21st-century modern state of India.
SOCIOLOGICAL PERSPECTIVE TO ABORTION LAWS
Martha Nussbaum’s conception of bodily integrity is based on the idea that a person is in control of his or her body and must be the sole authority in making decisions about the body.[3]Intertwined with bodily autonomy is the concept of bodily integrity which allows people to refrain from acts that they do not consent to. One such manifestation of bodily autonomy is the right to abortion. The agency to make decisions in other aspects of life. In a tradition-bound country like India, abortion is highly stigmatized and the unborn child is perceived as belonging to not only the to-be parents but also the larger family and social group.[4] Abortion stigma comprises of three broad types – ‘felt’, ‘enacted’, and ‘internalized’ stigma. Abortion stigma is intrinsically related to notions of ideal feminity which leads women to not discuss or disclose abortion. Kimport and his colleagues suggested that it is the social context of abortion – which stigmatizes and discredits the woman – which creates emotional difficulties for women pre and post-abortion.[5] Considering this direct link between society and social problems, a discipline like sociology can help us gather a better understanding of the problem of abortions.
SOCIOLOGY AS A TOOL TO UNDERSTAND ABORTIONS
Two of the most important concepts that are utilized by sociologists to understand abortions are Social Imagination and Social Location. The term Social Imagination[6]was coined by sociologist C Wright Mills and refers to a holistic way of looking at the actions of an individual in the context of the societal factors that are at play and influence an individual’s ideas, attitude, and behaviour. Social Location on the other hand refers to the place where we are located in a society and it includes not only the geographical place but also attributes like marital status, education, age, etc that influence individual ideas and preferences. In the present case, sociology can help us understand and tackle the social problem of abortion in the following ways:
- Sociology can help us measure objective conditions like the trends in the number of abortions and who has them, how do women arrive at a decision, and how it affects their relationship with their family.
- Sociology helps us measure subjective concerns such as people’s views and attitudes about abortion and gauge public opinion.
- Sociology can apply social imagination and social location to understand the role played by race, ethnicity, education as well as people’s ideas about bodily autonomy and privacy.
- Sociology can identify possible policies to address the issue of abortions by state and private actors like awareness and educational campaigns and legal changes and also their consequences like effect on birthrate, population and welfare.
EVOLUTION OF ABORTION LAWS IN INDIA
The Indian Penal Code of 1862 and the Code of Criminal Procedure 1898 made abortion a criminal offence except to save the life of the mother.[7] In section 312 of IPC,[8] the lawmakers purposefully refrained from using the term ‘abortion’ and instead used the term ‘miscarriage’. This was done to not injure the sentiments of the Indian society which was bound by traditions. In 1964 the Government appointed the Shah Committee, chaired by Shanti Lal Shah, to look into the socio-cultural, legal and medical aspects of abortion and in 1966 it suggested the legalization of abortion to prevent wastage of women’s health. The Medical Termination of Pregnancy Act, passed by Parliament in 1971, legalized abortion in all of India except the states of Jammu and Kashmir. The MTP Act protects a registered allopathic medical practitioner from civil or criminal action for any injury given to a woman seeking an abortion, as long as the abortion was performed in good faith and in accordance with the Act’s stipulations. The act was largely similar to and based on the Abortion Act of 1967 of the United Kingdom with the intention of providing a qualified right to abortion which was previously not considered a recourse available to 4xpecting mothers, as was held in the case of Suchita Srivastava v. Chandigarh Administration[9]. In this case, the court held that a woman’s reproductive choices extend to her procreating as well as to abstaining from procreating and underpins their right to bodily integrity, privacy and dignity. Section 3(4) of the act required the written consent of the guardian in case the girl is a minor and when she is above 18 years if she is lunatic or insane. The act was subsequently amended in 2002 and the term lunatic was replaced by ‘mentally ill’.
Following consultations with various stakeholders, the government enacted the Medical Termination of Pregnancy (Amendment) Act 2002 and amended Rules and Regulations 2003.[10] The most recent development in this field has been the Rajya Sabha’s approval of the MTP(Amendment) Bill 2021 on 16 March 2021. The main highlight of this bill is the provision allowing termination of pregnancy till the 24th week of pregnancy after the approval of the medical board. The bill amends section 3 of the act to provide unmarried women access to safe abortion. However, the bill does not go far enough. The medical boards, lacking a clear mandate, often venture into questions of the possibility of corrective surgery, the viability of the fetus, and even moral opinions on requests for abortion. The judges lack expertise in this subject matter and hence their opinions are heavily based on their personal prejudices and social conceptions about a woman’s maternal and marital duties. Thus both the courts and the medical boards are characterized by paternalistic and patriarchal condescension masked as concern.
The abortion laws, even in 21st century modern India, fail to recognize abortion as an extension of a woman’s bodily autonomy but continue to look at it merely as an exception to the crime of miscarriage penalized under IPC. The apex Court in KS Puttuswamy v. Union of India[11] and Navteq Singh Johar v. Union of India[12] upheld reproductive and bodily autonomy as a fundamental right under Article 21.[13] Denying women the agency to make decisions about their own bodies is a violation of gender equality enshrined in Article 14[14]. In fact, CEDAW’s General Recommendation 35 declares denial of safe abortion as an act of gender violence.
CONCLUSION
While the gestational limit for abortion has been made more liberal vis a vis the past, abortion is still treated as an exception to the crime of miscarriage under IPC and not as an extension of a woman’s bodily autonomy. Even in the 21st-century Indian state, a woman’s body remains a contested terrain where power plays out. It continues to remain a space where norms about a desirable woman, that are coded by culture and sanctioned by society, are inscribed.14 and she carries with her the burden of honour and ‘shame’.
I strongly believe that while the journey from criminalizing abortion to making it legal for even unmarried women has been commendable, the legislative process has been abominable and cumbersome. It took 7 years after the recommendations of the Shanti Lal Committee to enact the MTP Act and another 7 years after the recommendation of the Ministry of Health and Family Welfare for the act to be amended. Moreover, I believe that the requirement of permission from a doctor with a gynaecology or obstetrics specialization creates problems of accessibility to safe abortions for the rural population as according to All India Rural Statistics 2018-19 there are merely a total of 1351 gynaecologists and obstetricians[15] in the community health clinics in rural India. In my opinion, another area of concern is the overlapping of the MTP Act and POCSO Act. While the confidentiality clause of the MTP Act requires the protection of an individual’s identity, the POCSO Act mandates the disclosure of reporting sexual offences against children which include girls capable of giving consent. We must keep in mind that reproductive choice is a fundamental right guaranteed under Article 21 of the constitution and that we must adopt a rights-based framework when dealing with the issue of adoption.
Author(s) Name: Archita Mathur (West Bengal National University of Juridical Sciences, Kolkata)
References:
[1] Kanchan Mathur, ‘Body as Space, Body as Site: Bodily Integrity and Women’s Empowerment in India’ (2008) 43(17) EPW 54 <https://www.epw.in/journal/2008/17/review-womens-studies-review-issues-specials/body-space-body-site-bodily-integrity> accessed 18 February 2022
[2]Winston P. Nagan, ‘Social Perspectives: Abortion and Female Behavior’ (1972) 6(3) Val. U. L. Rev. 286 <https://heinonlineorg.nujs.remotlog.com/HOL/Page?public=true&handle=hein.journals/valur6&div=25&start_page=286&collection=usjournals&set_as_cursor=0&men_tab=srchresults#> accessed 18 February 2022
[3]MerviPatosalmi, ‘Bodily Integrity and Conceptions of Subjectivity’ (2008) 24(2) Hypatia 125 <https://www.jstor.org/stable/20618150?seq=1#metadata_info_tab_contents> accessed 18 February 2022
[4]Carrie Purcell, ‘The Sociology of Women’s Abortion Experiences: Recent Research and Future Directions’ (2015) 9(7) Sociology Compass 585 <https://eprints.gla.ac.uk/116298/2/116298.pdf> accessed 18 February 2022
[5]Katrina Kimport, Kira Poster & Tracy Weitz ‘Social Sources of Women’s Emotional Difficulty After Abortion: Lessons from Women’s Abortion Narratives’ (2011) 43(2) Perspectives on Social and Reproductive Health 103<https://www.guttmacher.org/sites/default/files/article_files/4310311.pdf> accessed 18 February 2022
[6]Gibson Winter, ‘Review: The Sociological Imagination’ (1960) 43(1) The Christian Scholar 61 <http://www.jstor.org/stable/41177145> accessed 18 February 2022
[7]Siddhivinayak S Hirve,‘Abortion Law, Policy and Services in India: A Critical Review’ (2004) 12(24) Taylor & Francis Online 114 <https://www.tandfonline.com/doi/full/10.1016/S0968-8080%2804%2924017-4> accessed 18 February 2022
[8]Indian Penal Code, 1860, s 312
[9]Suchita Srivastava v. Chandigarh Administration, 2009 SCC 1
[10]Siddhivinayak S Hirve,‘Abortion Law, Policy and Services in India: A Critical Review’ (2004) 12(24) Taylor & Francis Online 114 <https://www.tandfonline.com/doi/full/10.1016/S0968-8080%2804%2924017-4> accessed 18 February 2022
[11]KS Puttuswamy v. Union of India2017 3 SCC 797
[12]Navtej Singh Johar v. Union of India2018 10 SCC 1
[13]Constitution of India, 1950, art 21
[14]Constitution of India, 1950, art 14
[15]Devika Nair, Shruti Singhi &Sumati Thusoo, ‘Why Amendments To Medical Termination Of Pregnancy Bill Don’t Go Far Enough’ (The Wire, April 6 2021)<https://thewire.in/health/medical-termination-of-pregnancy-amendment-bill-women-abortions> accessed 18 February 2022
