First Post, May 14, 2012 by Nivedita Menon
There is a complicated relationship between abortion as such and the selective abortion of female foetuses. This dilemma is one with which the women’s movement in India has been grappling since the late 1980s. In my discussion of this dilemma, I would like to move away completely from Satyamev Jayate, the television programme, (on which a discussion has been initiated by Shohini Ghosh on kafila.org). In any case, there the focus was on women who were forced to have abortions after sex determination, on which there is little to debate.
I am concerned here with the more troubling question of how to understand a situation in which women themselves decide to have sex selective abortions. I outline here the main contours of feminist debate and activism over close to three decades, that have circled around complex understandings of ethics and agency in the context of women’s control over their bodies. I conclude by stating my own position on the issue, which is not necessarily the position taken by the movement as such.
Although the practice of selective abortion of female foetuses is restricted to India and to some South Asian communities in other parts of the world, its very possibility creates a more fundamental crisis for feminism. This is because feminists generally support the unconditional rights of women to safe and legal abortions. We see this as necessary because pregnancy and child-rearing are for all practical purposes, the sole responsibility of women. We should therefore, have the right to choose when and under what circumstances we will bring a child into the world, for we should be able to control what happens to our bodies and to our lives. The right to safe and legal abortion is an essential right of self-determination.
There is a complicated relationship between abortion as such and the selective abortion of female foetuses. AFP
In the West, this right has always been challenged and circumscribed by the Christian right-wing, and feminists there even today, have to struggle to retain it. Anti-abortion campaigns emphasise that the foetus is a person and that it has an independent right to life, and so their campaigns position themselves as ‘pro-life’, while feminists call themselves ‘pro-choice’.
The landmark judgement in the USA was Roe v Wade (1973), which defended the right to abortion as a right of privacy. However, this right is precarious, because many states did not repeal pre-1973 statutes that criminalised abortion, which could again be in force if Roe v Wade is reversed. Since there is a powerful anti-abortion lobby in the USA, this possibility cannot be ruled out. Many American feminists have been uncomfortable about seeing abortion in terms of the rights of individual women and locating it in the realm of privacy, for it suggests that pregnancy is an individual and private matter. They stress rather, that under conditions of pervasive sexism and patriarchy, decisions about pregnancy are sometimes out of the control of women. Moreover, they would like to see decisions about pregnancy and abortion as set within networks of responsibility rather than within the realm of ‘individual’ rights. We will return to these questions later.
In the United Kingdom, abortion has been legal since 1967, but continuously challenged, most recently in 1987 by a Private Member’s Bill, which resulted in substantial debate, but was defeated. In many other countries, abortion is illegal, or is permissible only to save the life of the woman, or only permissible up to the first trimester.
In India abortion has been legal since the Medical Termination of Pregnancy (MTP) Act of 1971, which came about not because of feminist concerns, or concern for women, but purely as a method of population control. Abortion is legal up to the second trimester, but it is at the absolute discretion of medical opinion. A study of the MTP Act points out that the pregnant woman cannot simply state that it is an unwanted pregnancy. She must provide explanations that fit into the conditions listed in the MTP Act, and it is medical opinion that has the power to decide whether the woman meets the requirements of the Act. That is, expert medical opinion must certify either that the pregnancy involves a risk to the life of the woman or would cause grave injury to her physical or mental health, or alternatively, that there is a substantial risk that a seriously handicapped child would be born.
The Act does not define ‘health’, ‘substantial risk’, ‘seriously handicapped’ and so on. It is left to the medical practitioner to decide how these terms are to be interpreted, although two explanatory notes indicate that pregnancy in the case of rape (excluding marital rape) and contraceptive failure (in the case of married woman) may be treated as causing injury to mental health. In fact, even the words ‘abortion’, ‘miscarriage’ and ‘termination of pregnancy’ have not been defined, which leaves the medical opinion on these matters sacrosanct.
Thus, the currently liberal-seeming provisions of the MTP Act could become restrictive without, a single word of the text being altered (Jesani and Iyer 1993).
But in general in India there has been no consistent and organised opinion against abortion.Far from having to struggle for the right to abortion, feminists have found themselves raising questions about the widespread sanction for abortion rather than contraceptives, especially condoms, as a method of controlling population. This means that the physical cost of population control is borne almost entirely by women. Further, feminists have been critical of governments using incentives and disincentives to influence the decisions of government employees regarding family size, and the imposition of the small family norm even where factors like high infant mortality rates and insecurity of incomes make it rational to have large families. In the wake of the National Population Policy 2000, several states have announced population policies that have a strongly punitive and anti-democratic thrust. Clearly then, the legal sanction for abortion does not arise from feminist principles at all, but it exists, nevertheless.
(Although I must add that of late there have been some very disturbing advertisements on television that promote contraception such as the pill and the morning-after pill, by contrasting these with abortion presented as the most shameful and terrifying option that a woman could decide upon.)
It is another matter that despite the MTP Act the number of unsafe abortions continues to be high and around 20,000 women die every year due to abortion-related complications, most of which are due to their being performed illegally, that is, by unqualified personnel. Medical facilities and trained personnel are inadequate, especially in rural areas, and in addition, there is the widely held belief that abortion is illegal. Legalisation has not, in short, been buttressed by safe and humane abortion services.
But since the 1980s, these issues have taken a back seat in the face of rising instances of selective abortion of female foetuses. Indian feminists have successfully campaigned for legislation restricting sex testing during pregnancy. The Preconception and Pre Natal Diagnostic Techniques (Prohibition of Sex selection) Act (PCPNDT) came into effect in 1994, but the sex-ratio at birth has continued to fall, showing that sex-selective abortion continues unchecked.
The problem is that the tests routinely used to monitor a pregnancy, for instance, ultra- sound, also reveal the sex of the foetus. It has become a crime to give parents this information, but if a doctor does so, and the woman has an abortion in another clinic, the link between the two is impossible to trace. Government initiatives to address what has come to be called the ‘skewed sex ratio’ have thus increasingly taken forms that threaten to restrict access to abortion itself. Recently for instance (2011), Indian feminists protested strongly at a statement made in the Maharashtra Legislative Assembly that ‘female foeticide’ should be treated as murder. There were a hundred signatories (including myself) to a letter to the Speaker of the Assembly that said in part:
First of all, abortion should not be referred to as ‘foeticide’, which has anti-abortion implications that we reject, for we believe that all women have the right to decide when and whether to bear and give birth to children. Making sex selective abortions (wrongly referred to as ‘female foeticide’), a murder charge will only increase illegal abortions and also make access to safe abortion difficult for women, who already do not have many choices regarding their own reproductive rights. Safe and legal abortion is a woman’s right. Abortion is legal in India. The MTP Act, 1971 spells out the conditions under which it can be carried out.
Sex selective abortion however, amounts to discrimination against a particular sex, in most cases, the female sex. Sex selection in favour of the boy child is a symptom of devaluation of female lives.
It is important to remember that those who want to use abortion for elimination of the female foetus have to first determine the sex of the child. Rightly, it is this process of pre-natal selection which is a crime, and it is being regulated and monitored through the PCPNDT Act.
Unless we are able to deal with all those social and economic factors that are going into the culture of son-preference and daughter-aversion, the child sex ratio will go on plummeting. But the solution is not to curb the legal right to abortion. Rather the PCPNDT Act should be enforced, and clinics that offer prenatal sex testing weeded out…
Checking pre-natal sex selection requires the proper implementation of the PCPNDT act and monitoring of sex-selective procedures by the government, and cannot be achieved by introducing such draconian measures that curb women’s right to safe and legal abortion.’
This letter reflects the feminist position on sex-selective abortion in India today, and marks key shifts that have taken place over the last two decades or so. ‘Female foeticide’, for instance, was a term that many of us used earlier. But gradually, through internal debate, we came to the understanding that ‘foeticide’ is an emotive word, suggesting the ‘murder’ of the foetus who is already a separate person, and is widely used by the anti-abortion Christian right-wing in the USA. The alternative term ‘abortion of a pregnancy’ prioritises the pregnant woman as the implicit subject. However in media reports as well as in government statements, ‘foeticide’ (often without even the qualifying term ‘female’) has come to replace ‘abortion’ in the context of sex-selective abortion in India.
The monitoring of sex-determination tests is one thing, but it is quite another to monitor abortions themselves. Whatever the limitations of the former, the dangers of the latter are far greater. But one of the measures undertaken under Renuka Chowdhury as Minster for Women and Child Development, made it mandatory to register all pregnancies, and to monitor abortions. A pilot project has been implemented in ten blocks with a high malnutrition rate and a skewed sex ratio. (See my earlier post on this particular development on kafila.org). Under the conditions of this project, abortions will be permitted only for ‘valid and acceptable reasons’ (Chauhan 2007).
But what constitutes a valid reason for abortion and who decides? Most women in India have no control over the conditions in which they have sex, and often abortion becomes the only form of birth-control. Women also have abortions because of the stigma of illegitimacy, or because they cannot afford another child, or because they are at a stage in their careers or their lives where they cannot take on the responsibility for yet another human life. Will the government officials monitoring abortions have the right to determine which is a valid reason for abortion and which not?
This is where we come to some very difficult issues that must be addressed.
First, it seems to me we cannot hold simultaneously that abortion involves the right of women to control their bodies, but that women must be restricted by law from choosing specifically to abort female foetuses. We seem to be counterposing the rights of (future) women to be born against the rights of (present) women to control over their bodies. It is true that many women in India go in for sex-selective abortion under pressure from their husbands’ families – it is not a ‘choice’ they willingly make. But is abortion ever a positive choice?
Decisions to abort are almost always shaped by factors like those outlined above – illegitimacy, lack of social facilities for childcare that place a disproportionate burden on women, economic constraints and so on. Decisions to abort on these grounds are no more reflective of a woman’s autonomy than her decision to abort a foetus because it is female. Nor are such decisions less determined by the constraints of a patriarchal society and a family structure based on the sexual division of labour. So why is abortion in all these other circumstances legitimate but not the abortion of female foetuses?
Second, what is our position on using pre-natal tests to detect ‘foetal abnormality’, a currently legal option? If we consider this valid, we are accepting a hierarchy of human beings based on physical characteristics, the lower levels of which do not have the right to be born. But then this reasoning can be extended to other categories, such as females. One feminist response to this dilemma is to argue that since women would have the sole responsibility of looking after such children, they should have option of whether to bear them or not. But then the identical argument can be made about female children – that because the social pressure to bear male children falls entirely on the woman, she should have the right to abort a female foetus.
The painful question is this: as feminists, can we insist that individual women should have to deal with the consequences of giving birth to every kind of foetus, and that abortion should be permitted only if you know nothing about the foetus you are aborting?
Can we hold the lives of existing women to ransom in order that the rights of abstract categories – ‘women’, ‘the disabled’ – can be protected? Surely one can stand for the rights of existing women and people with disability while recognising the rights of women to decide when, how and to whom to give birth?
I use the term dilemma for such instances precisely because an easy resolution of the ethical issues involved is impossible. To assume that either the pro-abortion or the anti-abortion position, devoid of context, is feminist or anti-feminist in itself, is clearly ill-founded.
The pregnant body after all, is not two individuals with equal rights, it is a unique entity that cannot be addressed in the language of individualism – a life within a life, one life dependent on the other. Children are seen in the abstract as national resources, but concretely, under the present sexual division of labour, must be taken care of on a day-to-day, minute-to-minute basis by their mothers. There is no social responsibility for child-care at all – for instance surely every employer should have the responsibility to ensure day-care for all ( not only women) employees?
Under such circumstances, I think the host body of the mother acquires the right to decide the fate of this unique entity. This is why the access to safe and legal abortion should not be defended as a right of privacy. Although it is a decision taken by individual women, that decision is shaped and driven by public and social arrangements and limitations – indeed, by a collective failure of social responsibility
There can be no quick fix for the selective abortion of female foetuses. The practice reflects the fundamental devaluing of women, which will have to be tackled in other ways, through consistent feminist politics. Such a politics would have to confront marriage itself and more importantly, question the necessary framing of motherhood within discourses of hetero-patriarchal legitimacy.
An ideal feminist world would not be one in which abortions are free and common, but one in which women have greater control over pregnancy, and in which the circumstances that make pregnancies unwanted, have been transformed. Until then, in a hugely imperfect, unfair and sexist world, I believe feminists must defend women’s access to legal and safe abortions whenever they decide to have them – whatever the reason for their decision.
Chauhan, Chetan (2007) “Govt to monitor pregnancies, abortions” Hindustan Times, July 13
Jesani, Amar and Iyer, Aditi. 1993. “Women and Abortion” Economic and Political Weekly, November, 27
This article by Nivedita Menon has been republished from kafila.org