It took a ruling by a three-judge bench of the Supreme Court to finally allow an unmarried woman to have an abortion at 24 weeks.
The 25-year-old woman conceived while she was in a live-in relationship. At 18 weeks, her partner abandoned her. At 23 weeks and five days pregnant, the woman approached the Delhi high court saying she was simply not mentally prepared to bring up the child on her own and to do so would cause her grave physical and mental harm.
What followed was a paternalistic lecture: “Why are you killing the child?” the judges wanted to know, and then advised: “There are big queues for adoption…we are not forcing her to raise the child. We will ensure that she goes to a good hospital. Her whereabouts will not be known. You give birth and come back.”
Instead, the woman approached the Supreme Court.
‘Unduly restrictive’
The high court judges were relying on an ‘unduly restrictive’ interpretation of the Medical Termination of Pregnancy rules amended in 2021, said the Supreme Court.
The amended rules replace the word ‘husband’ with ‘partner’, clearly indicating that they were intended to cover unmarried women. Now, even that residual ambiguity has been clarified. “The Supreme Court judgment will give relief to other unmarried women seeking an abortion,” said Amit Mishra, the woman’s lawyer.
Provided that a medical board rules that the abortion will not put her at risk, the woman can go ahead with it.
Under the amended rules, any pregnancy can be lawfully terminated up to 20 weeks.
It’s between 20 and 24 weeks where it gets tricky.
Abortions up to 24 weeks of gestation are allowed only with caveats: If the woman is a survivor of sexual assault, rape or incest; if she is a minor; if she has physical or mental disabilities; if there are foetal abnormalities; and if there is a change in her marital status and she gets divorced or becomes a widow during her pregnancy.
An arbitrary distinction
What the Supreme Court did not dwell upon was the logic, or lack of it, in creating different categories of women to whom the rules apply.
After all, if a physically or mentally differently-abled woman can be permitted an abortion at 24 weeks, then why not all women? On Thursday, the Kerala high court granted permission to a 13-year-old girl impregnated by a sibling to terminate a 30-week pregnancy. So, who creates these distinctions and why are they not applicable to all women?
“If you have accepted termination of pregnancy at 24 weeks is safe, then it is safe for all,” said Dr Nikhil Datar, a Mumbai-based gynecologist whose petition in the courts led to the amendment of the Medical Termination of Pregnancy Act and who, moreover, currently has another petition challenging the amended rules in the Supreme Court.
Creating a separate category of conditions to be fulfilled between 20 and 24 weeks has ‘no logic’, Datar added. “The gestation limit of 24 weeks is already arbitrary. Now, under that arbitrary limit, there are distinctions that I completely fail to understand.”
The distinction demonstrates that “women do not have a sovereign right over their bodies,” wrote senior advocate Vrinda Grover in February 2020. “Such a law not only fails to actualise autonomy and reproductive justice for women,” she continued, but “further entrenches patriarchal and regressive notions of progeny that preserve caste-community purity, and promotes eugenics and ableism.”
In the larger scheme of things, said lawyer Anubha Rastogi who runs the Pratigya Campaign for safe abortion, “Abortion is not a right and is only permitted in certain circumstances. Till this is remedied, we will keep seeing different facets of this coming up in cases before courts.”
Going to court
The amendment to the Medical Termination of Pregnancy Act comes against the backdrop of a growing number of women who had to approach the courts for permission to obtain an abortion after 20 weeks.
The Pratigya campaign tracked 194 such cases filed between June 2016 and April 2019. Of these, 33 cases were filed by rape survivors. Judges denied permission in 17% of these cases.
Datar said that since 2008 he has personally helped over 300 women approach the courts to terminate a pregnancy.
Sometimes court verdicts can go the other way. In 2009, a 19-year-old mentally challenged woman placed in a government-run institution in Chandigarh became pregnant as a result of rape. The institution sought permission for an abortion which was granted from the high court. But, here’s the twist, the woman wanted to have the child and appealed in the Supreme Court (Suchita Srivastava v Chandigarh administration). The court upheld her desire, and right, to have the child.
Chilling effect, disastrous result
One in three of the 48.1 million pregnancies in India every year end in an abortion, according to a 2018 Lancet study. In 2015, 81% of abortions were induced through medication, 14% through surgical intervention and as many as 5% through ‘methods that were probably unsafe’.
Unsafe abortions are the third leading cause of maternal mortality, taking 13 lives every day.
Complicating the right to abortion are the severe penalties under the law preventing the prenatal sex determination that has had a chilling effect on doctors performing abortions. POCSO, or the prevention of child sexual abuse, is another such law that makes it mandatory to report such abuse when a person becomes aware of it.
An increasing number of doctors fear backlash, finds a report by Pratigya, Assessing the judiciary’s role in access to safe abortion. As a result, “refusals to perform MTPs (medical termination of pregnancies) are high” and “most medical practitioners now refuse to see a minor pregnant girls, thereby reducing access for minor pregnant girls.”
The Supreme Court judgement is a welcome first step, said Datar, but it is not enough. “Unless the rules are changed in black and white, doctors will remain at the mercy of administrative officers who are bound by rules and not court judgements,” he said.
GOING PLACES
It’s the world’s second highest mountain, but only 425 people have summited K2 since 1954. On Friday, 31-year-old Samina Baig became the first woman from Pakistan to stand atop the mountain, followed just hours later by Iranian Afsaheh Hesamifard, the first woman from Iran to climb the mountain, and Bangladeshi Wasifa Nazreen, the first woman from her country to do so.
WE SEE YOU
When Thiruvananthapuram’s moral police converted a bench at a bus stop into three separate seats to prevent girls and boys from sitting together, students at a nearby co-ed engineering college decided to sit on each other’s laps and post the pictures online. “Our photo was not a fight against the residents, but there is a need to educate them to view students without the barrier of gender,” one of the students, Nandana PM said. Spoken like a boss.
WE HEAR YOU
“I feel blessed to have this talent and to continue to do it at 35, having a baby, still going and hopefully inspiring women to make their own journey.”
Jamaican sprinter Shelly-Ann Fraser-Pryce who won a record fifth women’s 100m world title at the World Athletics Championships.
GENDER TRACKER
Of the 18.72 lakh candidates who registered for NEET, the largest entrance exam in the country, over half, 10.64 lakh were girls, an increase of over 2.5 lakh from 2021.
STORIES YOU MAY HAVE MISSED
Crass insensitivity at a Kerala testing centre
Girls appearing for the NEET entrance exam to medical schools were asked to remove their bras due to ‘security concerns’ at a centre in Ayyur, Kerala. In the outrage that followed after one of the girls filed a police complaint, seven people have been arrested.
Margaret Alva VEEP candidate appeals for Opposition unity
The opposition’s candidate for vice president Margaret Alva has described the Trinamool Congress’s decision to not back her as ‘disappointing and tweeted her hope that the party led by Mamata Banerjee would rise above ‘whataboutery, ego or anger’ and stand with the opposition in the elections on August 6.
Rape is rape, even if it ends in marriage
Sexual abuse of a minor that ends in marriage does not lessen the offence of rape, the Delhi high court has said while denying bail to a 27-year-old man accused of sexually assaulting a minor girl in 2019 and then marrying her at a temple. The girl was traced in 2021 by which time she had had an eight-month-old child.
FIELD NOTES : Policing in patriarchy
Police stations that have dedicated women’s help desks are more likely to register crimes reported by women, finds a study published in Science.
Women’s help desks are located inside general police stations with trained staff that can assist women in filing complaints.
The study of 180 police stations that serve 23.4 million people is the largest-ever randomized controlled trial of police reforms and was conducted by the Abdul Lateef Jameel Poverty Action Lab (J-PAL) in Cambridge, Massachusetts, led by economist Sandip Sukhtankar of the University of Virginia. It found conclusively that intervention, which was composed of training, outreach and the assignment of women officers are more likely to register complaints by women.
“India is home to some of the highest levels of gender-based violence. Police are for many often the first and last line of defence in terms of addressing this violence. But there are many, many reasons why women may not seek help from the police including societal pressures, lack of trust in the police and the severe under-resourced nature of policing. What this means is that crimes against women are severely under-reported,” Prof Sukhtankar said.
More than a quarter of the women surveyed in seven states are subjected to domestic violence, finds the latest round of the National Family Health Survey.
In Karnataka the number of married women who reported facing physical or sexual violence from a spouse had more than doubled from 20.6% five years ago to 44.4% in 2019-20. Fewer than 10% of women report this violence.
Read the study here.
Behanbox has a detailed analysis on why gender crimes need exclusive, not segregated handling by the police.
THE LONG READ
Asked to recite her favourite poem, the class 4 student in village Uparbeda, Odisha, recited Robert Frost’s Stopping by woods on a snowy evening, the poem famously kept by the bedside of India’s first prime minister Jawaharlal Nehru. To the taunt of a classmate who asked if she too aspired to be a leader, Droupadi Murmu (then Tudu) replied: “Why not?” Debabrata Mohanty retraces the long journey of India’s 15th president.
AROUND THE WORLD
In Washington, after the disastrous fall of Roe, Democratic lawmakers are scrambling to secure the right to same-sex marriage and contraceptives into law, reports Politico.
In Kenya, campaigning for elections on August 9 is drawing to a close with a face-off between former prime minister Raila Odinga and deputy president William Ruto who was charged with crimes against humanity in the wave of the decade-long mass violence between 2007 and 2017 that saw at least 900 cases of sexual violence, writes Megan Clement.
In Lebanon, a wave of anti-LGBTQ hate speech has followed a recent decision by the interior ministry to shut down any event aimed at promoting ‘sexual perversion’. The setback, reports Associated Press, say activists are designed to distract from the country’s spiraling economic and financial crisis.
In Cuba, the National Assembly has approved a sweeping update of its family law that includes opening the door to gay marriage, greater women’s rights and increased protections for children, reports Al Jazeera.
That’s it for this week. If you have a tip or information on gender-related developments that you would like to share write to me at: namita.bhandare@gmail.com.
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| That’s it for this week. If you have a tip or information on gender-related developments that you would like to share write to me at: namita.bhandare@gmail.com. |