Birth Right

In June, the Supreme Court of the United States overturned Roe vs Wade, a landmark decision that had made abortion a constitutional right in the country. Given this massive setback to reproductive rights in the world’s oldest democracy, many in India took the opportunity to congratulate themselves on having more progressive abortion laws. The next month, however, the Delhi high court refused a 25-year-old woman the right to terminate her pregnancy because she was unmarried. The high court bench was interpreting the main abortion law—the Medical Termination of Pregnancy Act, 1971—which allowed certain categories of women the right to abortion under very specific conditions. The judges argued that, in her case, aborting the foetus would be equivalent to “killing the child.” On 29 September, the Supreme Court of India stepped in to expand the right to cover “unmarried women,” whom the MTP Act did not until then explicitly include. “Certain constitutional values, such as the right to reproductive autonomy, the right to live a dignified life, the right to equality, and the right to privacy have animated our interpretation of the MTP Act and the MTP Rule,” the judgment states.

While this is a step in the right direction and is remarkable for upholding a comprehensive view of women’s rights, it is in stark contrast to how India got its abortion law, which was not exactly created keeping women’s reproductive autonomy in mind. Unlike in several other parts of the world, our abortion law did not emerge as a result of feminist interventions that placed women’s political, social and sexual autonomy at their centre. Instead, in India, women’s reproductive fate has always been tied up with government anxieties about population control. After Independence, family planning became a central plank in India’s developmental ambitions and, to that end, the regulation of women’s fertility was treated as a national imperative.

But not all women were treated the same. The country’s efforts at controlling birth rates, historically, have been influenced by deep structural inequalities. In her recent book Reproductive Politics and the Making of Modern India, Mytheli Sreenivas lays this out clearly. She writes that the early years after Independence “were central in bringing middle-class women—as family planners—into the state’s development agenda, and in situating poor and working-class women as their targets. This targeting would intensify in the later 1960s, as Western funders and Indian government priorities aligned to make population control a focal point of Indian development, and women’s bodies became the ground to enact this developmental agenda.” Dalit, Adivasi and Muslim women have borne the brunt of these measures. The burden of family planning in India has almost always fallen on women, except during Indira Gandhi’s emergency, when it was working-class men who were subject to coercive measures of population control.

Until the early 1970s, abortions—or voluntarily “causing miscarriages,” as it was euphemistically called—were illegal and could be criminalised under the Indian penal code. This did not stop large numbers of women from seeking ways to terminate their pregnancies in whichever way they could, prompting the government to set up a committee to look into the merits of liberalising abortion laws. The committee, in its 1967 report, invoked population control as one of the probable outcomes of legalising abortion, among other desirable effects such as a reduction in high maternal mortality. “The decline in birth cannot be considered separately from the number of legal abortions,” the report stated. The “crux of the problem,” the committee said, was that deaths were resulting from abortions “being performed mostly by unqualified people under unhygienic conditions.”