Why should Indian women not have the right to abort a female child?

With the Zika virus wreaking havoc across Latin America and the Caribbean, the restrictive abortion laws of countries in the region have come into sharp focus as the virus affects pregnant women and results in their children being born with severe birth defects. Chile, The Dominican Republic, El Salvador and Nicaragua ban abortions outright with only Colombia allowing abortions in cases of foetal anomaly.

Peru, meanwhile, has agreed to compensate a woman for denying her access to abortion services, following a ruling by the United Nations Human Rights Committee that her human rights were violated. Back home, Maneka Gandhi, the Union Minister for Women and Child Development, has suggested that prenatal sex determination tests, currently illegal, be made mandatory so that if test results prove it is a female child, the parents could be tracked to ensure that the foetus was carried to term.

These international and national developments raise certain fundamental philosophical questions about abortion, individual autonomy and a woman’s right to choose.

The greatest good

The central tenet of utilitarianism, a school of legal philosophy propounded by Jeremy Bentham and John Stuart Mill, is that the State ought to seek “the greatest good of the greatest number”, with the good being whatever brings “the greatest happiness of the greatest number”. Happiness for Mill is intended pleasure; unhappiness is pain and the privation of pleasure. Mill states that, as we lack a clear criterion of right and wrong, the moral standard of an action must be measured by the greatest amount of pleasure, of the greatest quality, that it tends to produce for the greatest number of people.

So, let us say you are a pregnant woman in Chile, a country that has just confirmed its first few cases of the Zika virus and disallows abortions, with no exceptions for rape, the health of the mother or foetal anomaly. One has to therefore ascertain if a majority of Chileans would prefer an absolute ban on abortions, even if it means that their child might be born with birth defects as a result of the Zika virus, and they would not trade it in for abortions being allowed for pregnant mothers affected by Zika.

If women in Chile are allowed to terminate their unwanted pregnancies, it is likely to cause a greater deal of unhappiness among a greater number of people; abortion laws in the predominantly Catholic country remain as stringent as ever, and as the response by the government to the Zika virus outbreak has been to advise women not to get pregnant, there seems to be no indication that abortion restrictions will be removed or even relaxed.

Women as a means to an end

Imagine you are on a burning bus with two children and you get to decide which one lives. If you are a utilitarian, you would not care if it was your child or someone else’s that was saved as what matters is the greatest good of the greatest number. Would you let your child die? What if it is your child that will be born with birth defects? What if it is you who has to deal with harassment at the hands of your in-laws and husband for giving birth to another a female baby?

Utilitarianism fails to appreciate what it means to be emotional beings. As noted German philosopher Immanuel Kant put it:

“Always act so that you treat rational persons as ends in themselves and never as means only.”

Both Chilean and Indian society are simply treating their women as a means to an end, with the former’s goal being the furtherance of the Catholic Church’s agenda to banish abortions at all costs, while the latter is hell-bent on equalising the skewed sex ratio and saving the girl child for the greater good.

Much like Kant, Ronald Dworkin, one of the greatest legal thinkers of the 20th century, assails utilitarianism for treating individuals as equals only in numerical terms, as instrumentalities in ensuring the maximisation of general welfare. For Dworkin, you can save someone because they’re your child, while at the same time respecting other people’s lives. “I’m talking about dignity. It’s a term overused by politicians, but any moral theory worth its salt needs to proceed from it” says Dworkin.

True to his words, Dworkin resorts to the notion of living a life with dignity to justify a woman’s right to choose abortion.

Taking responsibility for your ethical convictions

Dworkin acknowledges that there may be instances where abortion is an act of self-contempt; for example, a woman might be betraying her own dignity by terminating a pregnancy to avoid rescheduling a holiday. Conversely, states Dworkin:

“I would reach a different ethical judgment in other cases: when a teenage girl’s prospects for a decent life would be ruined if she became a single mother, for example. But whether the judgment is right or wrong in any particular case, it remains an ethical, not a moral, judgment. It must be left to women, as their dignity demands that they each take responsibility for their ethical convictions.”

Thus, if a Chilean woman afflicted by Zika knowingly gives birth to a child with birth defects even after she is given an option to abort the foetus, that is a decision which might be based on her ethical conviction that all human life is worth saving. Conversely, a Colombian woman with Zika might make use of the foetal anomaly exception to terminate her pregnancy, a decision which might be based on her ethical conviction that one should not knowingly condemn a child to terrible disabilities.

What then would Dworkin make of the 22-year-old mother of two girls in Haryana, who wants to abort a female foetus as she does not want to be subjected to more harassment at the hands of her husband and in-laws for failing to produce a male child? The answer to this question is far from straightforward, as it brings into play the two major pieces of legislation relating to abortion and sex-selection in India: The Medical Termination of Pregnancy Act, 1971 and the Pre-Conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.

Denying women agency

The Medical Termination of Pregnancy Act is an enabling Act which decriminalises the abortion seeker and protects the medical practitioner from prosecution under the Indian Penal Code. It allows a pregnancy to be terminated up to 20 weeks gestation, with abortions being permitted where there is a foetal anomaly or a risk to the physical or mental health of the mother, with such injury to the health of the mother being presumed when the pregnancy is a result of rape or contraceptive failure between a married couple.

Interestingly enough, the Medical Termination of Pregnancy Act does not outlaw abortions based on the gender of the baby, but the Pre-Conception and Pre-Natal Diagnostic Techniques was enacted to fill this lacuna in the law. This law prohibits the use of all technologies for the purpose of sex selection, with violations of the Act subjecting physicians to a five-year jail term. All of this begs one question: Is it possible to be pro-choice and anti-selection simultaneously?

The answer is a clear no, as demonstrated by the argument put forth by Mitu Khurana, a Delhi-based paediatrician who had taken her husband and in-laws to court for “conspiring to kill her twin daughters in the womb”, against Maneka Gandhi’s radical proposal: “This is just going to encourage female foeticide… It is against the basic women’s right of abortion.”

This statement exposes an inherent contradiction in the position taken by gender equality activists who support the ban on sex selection: A woman has the right to choose in every sphere of life, except when it comes to aborting a female child.

Activists who have dedicated their life to the cause of preventing female foeticide assert that a woman’s choice to abort her female child is often a result of pressure by her husband and in laws; in other words, they assume that given India’s social milieu, a woman is more likely than not to terminate a female foetus and this justifies the ban on sex-selective abortions. The British writer Sarah Ditum provides the perfect riposte:

“But what about when a pregnant woman lives in a society… where dowry systems mean an inconveniently gendered child could bankrupt a family or one where a livid patriarch deprived of a male heir could turn his fury on both mother and daughter? In those situations, a woman wouldn’t just be justified in seeking sex selective abortion; she’d be thoroughly rational to do so.”

India is combating female foeticide, a product of brute misogyny, by denying women power over their bodies, and forcing them to have female children. The Indian State can keep passing laws till kingdom come, but it is the laws of nature that will ultimately prevail. Just ask the Haryanvi men, who hail from a state with India’s worst sex ratio, that are traversing the nation in search of women to marry.

Abhishek Sudhir is Dean, IFIM Law College, Bangalore.