Dobbs resonating in Delhi?: Examining the recent litigation in access to abortion

To what length must a woman have to go in order to protect her fundamental right of bodily autonomy under Article 21?

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"REPRODUCTIVE freedom is not only a matter of bodily autonomy but also one of self-determination. When people have the ability to decide if, when, and how many children to have, they can make conscious decisions about other aspects of their lives, including education and work." — Damon Hewitt, American civil rights lawyer

"Why are you killing the child?… Everything will be looked after by the government of India or the Delhi government or some good hospital. I am also offering to pay", remarked the Chief Justice of the Delhi High Court last month, according to the Hindustan Times, in a recent case that has drawn national attention, when he refused a 25-year-old unmarried woman to terminate her pregnancy on account of a change in the relationship status during the 24^th week of her pregnancy. The report noted that Chief Justice S.C. Sharma also remarked that there was a big queue for adoption, and that the woman can deliver the baby and give it up for adoption.

This case drew widespread ire across the country, in an eerie similarity to the United States Supreme Court's recent decision in Dobbs versus Jackson Women's Health Organization. For those that are unfamiliar with the decision in Dobbs, the U.S. Supreme Court held that there was no constitutional right to abortion guaranteed by the U.S. Constitution, and overturned its previous decisions in Roe versus Wade (1973) and Planned Parenthood versus Casey (1992).

The Indian Supreme Court, however, overturned the decision of the Delhi High Court less than a week later, holding that the high court had taken an unduly restrictive view of the abortion law. Before I critique the Delhi High Court order and examine the Supreme Court order, there is some merit in examining the legal issues around clause (c) of Rule 3B of the Medical Termination of Pregnancy Rules, 2003, and see what happened in the courts.

Also read: The abortion debate must be couched in equality, not just privacy

What happened in the courts?

Rule 3B allows for categories of women such as divorcees, widows, minors, disabled and mentally ill women and survivors of sexual assault or rape to avail an abortion. Clause (c) to the rule says that a change in the relationship status of a woman would entitle her to get an abortion, if the gestation length of the pregnancy exceeds 20 weeks, but does not exceed 24 weeks.

In the case before the Delhi high court, the woman was unmarried, and her partner parted ways with her at the point of 18 weeks of pregnancy. The issue before the high court was whether an unmarried woman could avail an abortion. The high court answered in the negative, holding that the woman did not have a right to an abortion, as the change of status for an unmarried woman was "clearly not covered" by the law.

However, the Supreme Court constituted a medical board and directed the All India Institute of Medical Sciences to terminate her pregnancy if the board opined that it was safe. It also held that the right to privacy was a fundamental right that included the right to bodily autonomy.

There is some merit in debunking the claims by Chief Justice Sharma relating to 'killing the child', supposed long queues for abortion, and his offer to pay for the child if the woman delivered it.

Also read: When will abortion become a right for every pregnant person?

Abortion is NOT killing a child

The most common pro-life argument against abortion is that abortion is murder. However, there is no scientific or philosophical backing to such a claim. There is a distinction between the moral status of a baby and that of a foetus. The morality of abortion hinges on this idea of moral status. As the Stanford Encyclopaedia of Philosophy puts it, "An entity has moral status if and only if it or its interests morally matter to some degree for the entity's own sake." If one were to cut the philosophical jargon, it simply means that even though a foetus may consist of living cells, it is not a person. To become a person, the foetus must cross what is called a bright line.

The philosophy of gradualism posits that as the foetus develops within the womb, its moral status increases. Thus, a six-to–eight-week-old foetus has a lower moral status than that of a 27-week foetus. But the question that arises is — where is the bright line? The answer is simple: to achieve full personhood and be considered a person, the foetus must take birth. American philosopher Margret Little argues that foetuses are 'in between', and while they are certainly not persons, they have moral significance; terminating a pregnancy must, therefore, require moral justification. The idea that a foetus has personhood has much wider implications which need to be examined at length but are beyond the scope of this article.

That is the moral conundrum before philosophers. However, when one talks about the law, one must talk about rights which precipitate from the judgements and the statute. The Supreme Court has, in no uncertain terms, held that the right of a woman to her bodily autonomy is a part of her right to life under Article 21 of the Constitution. Chief Justice Sharma, by such remarks, seems to browbeat the woman into giving birth to the child, in blatant violation of her rights.

The criminalisation of abortion needs to stop if the stigma around it is to be removed. Abortion must be secured in a rights-based framework, where no one but the pregnant person has a right to decide on her body.

Also read: Abortion is dead, long live the foetus

Queues for adoption in India: Best interest of the child?

The second claim, which was made by Chief Justice Sharma, was that there are long queues for abortion, and the woman must give up the child for adoption after giving birth if she does not want the child. This is a major concern — do we see pregnant persons as mere incubators who, if they get pregnant, must necessarily give birth to the foetus?

This is not possible for some women, because giving birth might sometimes imperil the life of a woman. It is also immoral to suggest that if a child is born out of rape, or incest, the woman must necessarily give birth.

Studies have proven that adoption has a higher rate of moral distress for women than abortion. As American writer Olga Kazan noted in a recent piece, "In the end, this line of research is not especially vindicating for either the defenders or opponents of abortion rights. Rightly or wrongly, very few women who desire abortions see adoption as a favourable alternative. Some of these papers end with policy recommendations along these lines: "The ongoing promotion of adoption by the American anti-abortion movement is unlikely to impact women's abortion decisions, because very few women pursuing abortion are interested in adoption," Sisson and her colleagues write."

The second issue is whether there is a queue for adoptions in India. According to data (picture below) taken from the website of the Union Ministry of Women and Child Development's Central Adoption Resource Authority, it is clear that in the past decade, the number of adoptions has fallen.

According to the United Nations Children's Fund in 2018, India had nearly 30 million adopted children. The number will have only increased due to the pandemic. According to a recent report by The Wire which examined the causes of low rates of abortion in India, "currently, there are approximately only 20,000 parents in line waiting to adopt, compared to the 27.5 million couples who are actively trying to conceive but are experiencing infertility, according to the Indian Society of Assisted Reproduction." The report noted two reasons for a low level of adoptions in India — first, most Indians desired children that were biologically related to them; second, most children that are adopted do not make it into institutionalized care. Even if the child was adopted, there was a 4 per cent chance that they would be returned.

Also read: SC orders states/UTs to take strict action against NGOs and individuals indulging in illegal adoption of children orphaned by Covid

Discrimination in adoption is writ large. For example, LGBTQ+ couples cannot still adopt in India. Adoption rates for disabled children are also dwindling.

With this background, one must ask that even if the child was given up for adoption, whose interest would be served? The pregnant woman's? The child's? I do not want to answer the question, but leave it up to the reader to make an informed decision in light of the facts and statistics above.

Why the right to abortion matters

This was far from the most bizarre thing that happened in the high court during that hearing. Chief Justice Sharma not only offered to pay for the child but also asked a senior male advocate if the woman should be allowed to terminate.

American birth control activist, sex educator, writer, and nurse Margaret H. Sanger once famously said, "No woman can call herself free until she can choose consciously whether she will or will not be a mother." Though the Supreme Court finally constituted a medical board and directed it to perform the abortion, one must ask — to what length must a woman have to go in order to protect her fundamental right of bodily autonomy under Article 21?