The US Supreme Court legalised abortion on January 22, 1973, thirty-five years ago and the sharp differences of opinion which then existed about the morality of abortion continue to exist.
Countries where abortion is illegal and cannot be performed without the consent of the woman concerned alone scare me quite simply because not having that right means that the woman loses a significant amount of control over her own body and her own life. And no, it’s not about being pro-abortion, it’s not about being stupid and requiring to have one performed due to sheer carelessness or negligence but about being able to make choices since no one can know what’s best in any particular situation but the people involved. Not government and not priests.
Many abortions in the developed world may be the result of irresponsibility. That isn’t true in the developed world though; few women have access to any form of contraception and fewer still are in a position to be able to ensure that they don’t become pregnant. Making abortion illegal does very little apart from forcing people to have children whom they often can’t support or forcing them to have illegal abortions.
I was once told by a friend, a devout Roman Catholic, that he believes that abortion is always wrong because he believes that life is sacred. I believe that abortion is sometimes an ethically viable option because, like him, I too believe that life is sacred. There are few things worse than to create a child whom you cannot support, whom you can’t love, who you know will die a gruesome early death because of some genetic problem or who you know will never be treated with even the slightest amount of dignity by the people in your world.
Thankfully, the Indian Medical Termination of Pregnancy Act seems to agree with this.
Section 3. When pregnancies may be terminated by registered medical practitioners:
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner, -
(a) Where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or
(b) Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioner are, of opinion, formed in good faith, that -
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to be seriously handicapped.
Explanation 1 – Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2 – Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be resumed to constitute a grave injury to the mental health of the pregnant woman.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant women’s actual or reasonable foreseeable environment.
(4)(a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.
Here’s a paraphrase of a letter I sent to a U.S. magazine after they published an article on abortion… I don’t think the magazine ever printed it, but it would be very interesting to know how your Roman Catholic friend would respond:
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The pro-life movement often ignores an awkward inconsistency in its position that human life begins at conception: where is their outcry over the millions of natural abortions that occur every year?
So many pregancies end spontaneously that the medical profession has never even bothered to count them precisely. Estimates range from 10% to 50% of all conceptions; often the mother never even knows about it. Yet if all of those conceived ova are human beings, then we are dealing here with a holocaust of the first order. Where are the calls for federally-funded research to stop or at least slow this crisis?
It is not enough to say “Yes, but when that happens it is God’s will.†We do not say so, after all, when our five-year old post-birth child gets pneumonia; we take her to a doctor. Nor is it convincing to say “Yes, but those are accidents, whereas abortion is murder.†That might suffice for a lesser calamity, but when your city is suffering from an epidemic more fatal than the Black Plague, you don’t concentrate on bolstering police forces to reduce the murder rate.
Those who think (or who think they think) that human life starts at conception are obviously sincere, in the sense that they feel the emotion of sincerity when they talk about this issue. But it is one thing to feel right, quite another to actually behave consistently according to the principles one has declared. If the pro-life movement were to start doing so, deliberate abortion would hardly register on their list of priorities: it would be completely overwhelmed by Mother Nature’s indiscriminate daily slaughter, the medical causes of which no one (not even from the pro-life movement) seems particularly interested in investigating.
-Karl Fogel
New York, NY
January 22
I suspect he’d say something about God working in mysterious ways although I can’t be sure. He’s one of the most incredible people I know but, in part, our complete inability to agree about a number of things such as abortion and how to bring up children (specifically whether or not children should be hit) caused us to drift apart to the extent that we now only talk about non-contentious issues.
Like you, I fail to understand the focus of pro-life activists although I’ve never actually thought along the lines you have. I’ve always thought of it in terms of how their energy, time, money and effort would be better spent on the children who ARE already alive and in need of better care than they’ve been given.
January 24
You seem to ignore that the MTP act currently allows abortion on demand which may well have contributed to female feticide and the falling sex ratio in India. The PNDT act to stop prenatal diagnosis is unlikely to work so long as the focus remains solely on controlling information while keeping access to the actual procedure itself completely open to everyone just for the asking. Also, is using abortion in lieu of a post-coital contraceptive such a good idea from an ethical standpoint? Something to think about.
The MTP Act does not allow abortion ‘on demand’ although some doctors may perform abortion on demand. The Act lists a few situations in which abortion is legal. I don’t believe that the legality of abortion in India is what has caused large scale female foeticide – I doubt that those who choose to abort female foetuses would have decided not to do so simply because of the procedure being illegal especially since pre-natal sex identification (which would have had to be performed before the decision to have an abortion was made) is in any case illegal. If there is a law which is responsible for female foeticide, I suspect it’d have to be the dismal implementation of the PNDTA. If access to info. regarding the sex of a child was better controlled, the people who choose to have abortions performed based on the sex of the child would drop out of the equation.
Also, I don’t think that access to the procedure should be curtailed because of misuse — all laws are subject to being misused. That doesn’t mean that all laws should be reversed or otherwise made defunct.
And no, I’ve never thought of abortion as a legitimate means of ‘post-coital contraception’. However, in situations where women have not been able to access contraception whether it be due to rape, domestic violence or something else, I think that it makes more sense to have an abortion than to have a child that is unwanted and will in all likelihood be subjected to a lifetime of deprivation. In addition to this, I’m not sure whether it’s right to give birth to a child you know will have a severe congenital or genetic defect.
For example, what would you do if you knew that your child would almost certainly be born with Tay-Sachs disease and would die a gruesome death by the age of four? If I ever wound up in such a situation I have absolutely no idea of what I would do. What I do know though is that I would want to have the option of being able to have a legal and (hopefully) safe abortion open to me.
jan 24
Thanks for the prompt response. Here is why it is difficult to accept some of your arguments. As one can see from your post, explanation 2 in the law states: “Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be resumed to constitute a grave injury to the mental health of the pregnant woman.†As there is no way for to prove or even suspect that it was otherwise (i.e. how does one distinguish a genuine case of failure from a mere change of mind later on), the meaning is clear – the mere statement of a couple to the obstetrician that the pregnancy is unwanted and resulted owing to contraceptive failure is adequate for an abortion to be conducted. What else is this but abortion on demand?
This is so in theory. Is it true in practice as well? A spate of reports have come out (I am writing this post without references but I will provide some if your require them) suggesting that this is the reason quoted by women and couples seeking abortion very often. A good moral case may be made out in case of rape, fetal deformities, etc. but contraceptive failure? The case is much weaker than for the others.
You are right to point out that prenatal sex identification has to happen before the abortion is done. You also point out that theP NDTA is poorly implemented. Why is this so? Doing the test (which is an ultrasound exam really) is perfectly legal and conducted at least once before 20 weeks (which is when abortion is legally allowed) as part of a routine antenatal check-up. At that time, the doctor also gets to know the sex of the fetus. What this law expects of him/her is to not reveal this info to the patient – in other words, it attempts to control the flow of information in a confidential private setting. Once the woman/couple get to know the sex, they are of course not required to get their abortion done in the same clinic. They are free to go anywhere else to a perfectly ethical and legitimate setting to get operated and all they have to tell the doctor there is simply that they had a contraceptive failure! (This is not my imagination. There was a report in the BMJ (I think) that made this point). Controlling information transfer in a doctor’s office is quite similar to trying to control a conversation among friends – no wonder the government is not very successful (you are correct that all laws are abused; yet it the duty of governments to design them in a way that minimizes the problem). So what is the solution? Regulating speech in a private setting is per se never going to work. Surgical procedures are much more amenable to regulation – they require operating rooms and facilities which would be more easily identified and traced in the event of a problem. This is as true for abortion as it is for anything else. So, if one wants to stop female feticide, the answer is to regulate abortions and limit them only to certain instances such as rape, fetal abnormalities, danger to mother’s health (excluding the spurious mental health exception), etc. What we have today is a law prone to abuse and must be amended to restrict this right if we want a more balanced sex ratio to return.
I don’t disagree with your facts, just some of your conclusions. However, if I understand you correctly, your primary problem isn’t with abortion per se but with allowing abortion in cases of contraceptive failure.
I’m not sure whether amending the MTP Act to delete this particular ground would change much though because as long as it’s just a matter of finding a ground, there’s nothing to stop a woman from claiming that she was raped particularly since the law theoretically treats marital rape as a crime and does not (and should not, considering conviction rates for rape) require rape to have been proved in a court for a woman to be allowed to have an abortion which is why I think that as far as female foeticide is concerned, the controls under the PNDTA should be somehow strengthened.
Restricting access to abortion won’t solve the problem of skewed ssex ratios especially since if people are determined enough not to have daughters, they will find a way to ensure that they don’t whether it’s by having an illegal abortion or by killing the child soon after birth.
Even in the case of rape (marital rape is not recognized in the Indian Penal Code), the law needs to be amended to require some evidence of the crime to be presented (such as an FIR, evidence from the investigation, etc.though not a court conviction) before an abortion is carried out. Restrictions will only work when the burden of proof is raised from the current level.
You are right that determined folks may still go for an illegal abortion or infanticide. The idea of all this is not that it will prevent the crime altogether but it stands a much better chance of enforcement than the PNDTA as it stands today. The risks of a back alley abortion and the difficulty of finding a provider would be substantial deterrents to at least diminish their incidence from the current levels. The same is true of female infanticide – this practice is widely prevelant in only a a couple of states (TN and Punjab I think) whereas feticide is currently an all-India phenomenon (barring Meghalaya perhaps). Given that hormonal changes kick in following delivery leading to the maternal instinct, only the truly marble hearted would be able to kill the daughter in front of them whereas it takes relatively less sentiment to abort an unborn (and ipso facto unseen) child. This statistic is therefore not surprising. So, if abortions are curbed, I still think that even accounting for an increase (which I would expect to be nominal) in the incidence of infanticide, there will be a net positive impact on the female birth and 0-5 year survival rates.
January 25
I live in France where abortion is not just legal but is also socially accepted (for the first time, there are more births outside marriage than in otherwise; so social stigma is not a problem here). Most women who have undergone an abortion tell me that it was a banal painless and without any side effects. This is the positive aspect of legalising this act. Women would do it anyway, so why not legalise it?
On the other hand, the scale of abortions in this country is shocking. Upton 200000 a year for a country whose population (60 million) is not alarmingly high, whose women have full access to birth control even in high school (this number does not include the morning after pill).
All said and done, I think I can accept abortions (in the first 12 weeks) easier than infanticide.
January 25
@ Pilid : Marital rape isn’t a crime under the IPC, 1860 unless the wife is below either 12 or 15 years; I don’t remember the exact age at the moment. However, it is an offence under the Domestic Violence Act, 2005. I don’t see how the burden of proof can be legitimately raised without asking the women concerned to produce witnesses, bruises etc. and in the case of domestic violence, it is entirely possible to for no such evidence to exist.
@ Revathi: I think abortion is socially acceptable in India (unless the woman happens to be unmarried). I find it easier to accept abortions than to accept infanticide too. I also find it easier to accept abortion than the reality of a child who is born unwanted and who will probably grow up being neglected and/or abused.
I do not believe that the domestic violence act recognizes marital rape as a criminal offense. It only provides for certain protections for women such authority to the magistrate to issue ex parte orders authorizing a place to stay and a restraining order to keep the husband away in the event of domestic violence which may, inter alia, include sexual abuse.
It is quite possible to seek evidence for rape without the woman having to reveal bruises, etc. Besides, the need for an abortion may well arise much later after the pregnancy is confirmed by which time they would not be found even if one wanted to. One can ask for one or more of the following: the copy of the FIR, evidence from the medical exam done at the time, any other evidence from the police investigation, etc.
If it were to be considered a criminal offence, it’d have to be under 498A, IPC. It is possible to have other evidence but rarely practical. In this case, a medical exam which revealed no injury would be virtually worthless since it would then become very difficult to prove the lack of consent. Also, FIRs and police investigations (even assuming that they are carried out fairly etc.) only come into play if the woman chooses to report the incident in the first place which it is extremely unlikely that she would do.
In any case, to my mind, abortion and rape are two separate issues which overlap only to the extent that a woman may prefer not to have a child conceived as a result of rape.
I quote from a review article on a 1975 South African law that provided for a rape and incest exception for abortion:
“To qualify under the rape or incest exception, approval had to be obtained both from the district surgeon who examined the patient on a report of the offence, and from a magistrate. The magistrate had to certify that:
(i) a complaint alleging unlawful carnal intercourse had been lodged with the police and, in cases where a complaint had not been lodged, that there was a good and acceptable reason why a complaint had not been so lodged;
and
(ii) that on the balance of probabilities, the magistrate was satisfied that unlawful intercourse had taken place.
In the case of incest, the magistrate had to certify that the prohibited degree of relationship exists between the sexual partners, and the woman had to certify in an affidavit that unlawful carnal intercourse occurred.â€
Clearly, it can be done. There are a variety of ways in which such procedures can be handled, this example being only one of them. Even in the US, states had a various exceptions prior to Roe v. Wade. Even now, states continue to have trigger laws with such exceptions (which will be ‘triggered’ into action if the Supreme Court were to reverse Roe).
I agree that abortion and rape are different issues and they only overlap here upon the question of conceiving the rapist’s baby.