How two NRI women became the victims of laws that were meant to protect them

More than 30 years since Margaret Atwood wrote her prize-winning novel, The Handmaid’s Tale, a dystopian tale in which fertile women are imprisoned and forcibly impregnated by their male owners, women in real life, it appears, still have little agency on matters related to their own pregnancies. Their decision-making powers are circumvented by a range of laws, which, ironically, have been implemented precisely to help them.

On the face of it, the cases of Purvi Patel and Savita Halappanavar – two pregnant women caught in a difficult situation who desperately needed for an abortion – are different. Yet the support systems ostensibly established to help them, failed to come to their aid.

Foeticide or a victim of law?

In March 2015, Purvi Patel, an Indian-American woman in Mishawaka, Indiana, was sentenced to 20 years in prison for the crime of foeticide, and the neglect of a dependent. She was also found guilty of induced illegal abortion. It was the first time a woman in the US had been convicted and imprisoned for foeticide. Patel’s lawyers have filed an appeal, which shall come up for hearing next month.

Patel went to hospital in July 2013 seeking medical help for heavy bleeding. She later admitted to aborting her foetus with pills bought online, a fact revealed from her text messages. Under Indiana laws, while such pills are available on prescription, it is illegal to buy them online. But more serious charges of foeticide were slapped on her after Patel admitted to having dumped the stillborn foetus in the garbage. A doctor at the hospital retrieved the foetus and called the police. Criminal proceedings followed to determine whether the foetus had been alive at the time of its birth, and it is here that pathologists for the defence and prosecution differed.

The defence determined that the foetus – at 22-23 weeks – had indeed been stillborn, but this was overruled as the jury went with the prosecution pathologist’s view that the foetus had been between 25-30 weeks, and was viable (having reached a stage of development that would allow it to live outside the uterus) as determined by a lung float test. This autopsy procedure to determine infanticide from the manner a foetus’ lungs floats or sinks in water is now widely discredited among health specialists and forensic experts, who believe that it can be used only to corroborate other findings.

But it was the twin charges of attempting an abortion (illegally) to end a pregnancy (foeticide) and then dumping a live foetus and thus killing it (neglect of a dependent) that led to Patel’s strict sentencing. Her appeal is not just against the foeticide charge, but also the use of the lung float test.

Governments feel pride at laws they have implemented that they insist secure women’s rights and ensure them protection. Indiana is one of 38 states in the US to have a foeticide law, which was intended to protect pregnant women from assault. The Indiana law was passed in 2009 after a pregnant bank teller was shot during a robbery and lost her unborn twins. Yet laws remain culturally blind to aspects as in Patel’s case, to her family situation and background – most media accounts offer a stark one-liner about her conservative family and their disapproval of premarital sex – and her evident need for counselling and support especially when she found herself pregnant.

Unclear law

But as laws are implemented even elsewhere with claims that they are intended to protect its intended beneficiaries, i.e. women – it is also a fact that women find themselves becoming its unintended victims.

The death of a 31-year-old dentist Savita Halappanavar, in Galway, Ireland, in 2012 drew attention to Ireland’s abortion laws, and the fact that they violated the stipulations of the European Court of Human Rights guidelines to which Ireland is a signatory. Halappanavar died of septicemia that followed a miscarriage at 17 weeks. Though doctors had known she might miscarry, they refused to carry out an abortion as they had detected a foetal heartbeat. As an inquiry committee revealed in 2015, Halappanavar did not receive proper medical attention and a series of wrong decisions led to her tragic death.

Protests by the Indian community, the Indian government, Amnesty International and pro-choice groups within Ireland and in Europe were followed by wider criticism of Ireland’s unclear laws relating to abortion. It was partly in response to the outcry following Halappanavar’s death that the Irish government introduced the Protection of Life During Pregnancy Act, 2013.

As reports go, Halappanavar had made the ineffectual argument that being of a different religious persuasion, the country’s laws, as derived from it being predominantly Catholic, did not apply in her case. The truth was that the law in Ireland was just too tragically unclear. A previous Scroll.in report pointed out how a lack of clarity in Irish law prevented doctors from intervening in Halappanavar’s case. The confusion was over the terms “potential major hazard” or “threat” to the pregnant woman’s life, which is when abortions were allowed under Irish law. However, when Halappanavar was brought to hospital, the doctors weren’t sure what “potential major hazard” could mean. No one seemed to know how close to death did a woman undergoing a miscarriage have to be before doctors could finally induce abortion legally.

Meanwhile, as an Indiana court readies itself to hear Patel’s appeal, advocacy groups have pointed to how Indiana’s law on foeticide is inherently and frighteningly discriminatory – its targets being, more often than not, Asian Americans. They point to the 2013 case of a Chinese immigrant, Bei Bei Shuai, who, in an attempt to commit suicide as revealed in her note, had to undergo an emergency Caesarian that led to the death of her daughter, who was born at 33 weeks. Though convicted of foeticide and murder, and refusing a plea agreement to admit to the former so as to have the murder charge dropped (both came with stiff prison sentences), Bei Bei Shuai finally served a year in jail after having admitted to criminal recklessness.

In other instances, in other US states, similar laws on attempting abortion have targeted vulnerable populations such as poor, dependent women or those in urgent need of rehabilitation. The necessity of laws that speak for and uphold the language of rights for all is increasingly needed in an interlinked world. But this also brings up the contradictory issue of culture, which remains specific and contextual. Both aspects – the legal and the cultural – have their own ambiguities. For, rights and laws are all decided by larger bodies and organisations that purport to look at the big picture. But in all this, very often, it is the individual’s voice that is sometimes lost.