Each and every individual is constitutionally guaranteed a right to life, under which comes the implicit realm of entailed rights, like the Right to Health for one. The right to health covers quite an ambit within itself as well; which necessitates government intervention in the context of making the essential medical facilities available and accessible, alongside spreading awareness about the same.

One of the aspects of public health that tends to go unnoticed, overlooked, and quite frankly, neglected almost, is the women's right to her bodily autonomy, in terms of reproductive justice. Abortion, across the globe, is a topic that creates a hushed taboo rather than stir healthy conversations and extension of help; which explains why the law tends to be overly regulated, outdated, and restrictive, without any consideration for the pregnant woman's opinions and inherent say in the matter. It's ironic how we neglect that facet of public health, given its importance to the societal strength at large- there's an overwhelming amount of neglect extended to this seemingly isolated social phenomenon.

The intersectionality is that this right trails down to, isn't explored and navigated through as demanded by the need of the hour. It's not as though all of the world remains as oblivious; countries like South Korea, Colombia, Thailand, and Mexico have altered their socio-legal perspectives and constructs to accommodate the reality that is a woman's right to reproductive justice and abortion. India is yet to take the step ahead, and through this article, I strive to shed light on the possible reasons for the delay in said uptake.

Reproductive Rights in India: A brief insight

Prominent legislations that regulate abortion rights in India are the Medical Termination of Pregnancy/MTP Act of 2021, the Indian Penal Code 1860, the POCSO/Protection of Children against Sexual Offences Act of 2012, and the PCPNDT/Pre-Conception and Pre-Natal Diagnostic Techniques Act of 1994. While these acts are intended to aid the development and access to abortion laws in India, what these acts end up doing in both isolation and in consonance with the other, is limiting the access and understanding of abortion laws in the first place.

The reason why such regulation is a fallacy, is that the decision of abortion, logically if seen, does not affect anybody but the woman choosing to undergo said procedure; it is something that she inflicts on her body, thus making it a matter of her choice and her say, in my opinion. The discretion and decision-making powers on the contrary, are now placed in the hands of the Court, the medical practitioner in charge, and such unaffected third parties by law, which in all honesty is quite ridiculous a notion to have nursed all long, especially when the discretion evidently ought to be owed to the woman who'd actually bear the fetus. The MTP Act in India stands to deem abortion criminalized beyond the permissible 24-week gestational limit.

Does The Process Of Abortion Even Warrant Judicial Authorization?

It is a myth; that we mandate abortion to require judicial authorization. In theory, at least, the MTP Act was never envisioned to have mandated judicial authorization for a woman who sought to have her pregnancy terminated in the first place. The stark contrast that is our reality at present is best exemplified by the case of 'X v Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi and Anr', wherein the Delhi High Court was able to dictate a decision and a right as personal; by rejecting the appellant's plea to have her pregnancy terminated.

The decision to bear a child (or not) is an aspect crucial to a woman's bodily function and autonomy; and so believes the Supreme Court of India as well as it went on to overturn the High Court's decision, citing the continuation of pregnancy to have caused grievous injury to the mental health of the woman. Just the fact that abortion laws before this case were mostly read as being off-limits for unmarried women, is indicative of the innate sexism that runs amok in the public mindset.

Not to drift off the line of thought, but our inherent notions of being sexist are exactly what derail all of the well-intentioned acts that we have made them out to be. I do appreciate the fact that the Honorable Court countered the logic of excluding unmarried women from the accessibility list in society, so to speak, in the sense of said logic being violative of the constitutionally provisioned Article 14 (equality before the laws and equal protection of the laws).

The marital status of the woman should not be the factor chosen to be the contingent determining her access to abortion facilities. It is safe to say that such a lack of clarity as to the legal phenomena that are abortion laws stems from the fact that there is none provided on the part of the law as well, on a procedural as well as a statutory basis. Much of this lack of clarity in turn, is rooted in the resistance from any and all public communication on this topic and it would help if we could start to make ourselves and the people around us, aware of all the facets of our lives that this one right stands to affect and impact.

The inter-sectionality amongst legal perspectives alone.

The MTP Act for one, does interplay with the IPC in the legislation governing reproductive justice. MTP's origin story might just actually be traced back to the shortcomings posed in this regard by the IPC, by the latter not differentiating between wanted and unwanted pregnancies and imposing a blanket criminalization tag on abortions in its entirety and the liability of which would be imposed on both the woman as well as the doctor.

Dipika Jain, via her piece on rethinking the legal point of view on abortion, further sheds light on the idea that the MTP Act came about to be, as a corrective measure for the same, legislatively governing the exceptions to the criminalization of abortion. This IPC-MTP intersection plays out to be so rigid that any abortion that does not fall within the MTP-provisioned exceptions is deemed illegal by the IPC, even if the woman were to have assented to the abortion.

There's also the intersection of the MTP with POCSO, wherein medical practitioners are mandated to report an abortion of a minor to deter and fight off sexual abuses inflicted on minors. The consequence however is the instilling of fear on the part of the medical practitioners, investigation as under the POCSO reporting guidelines if the abortion procedure were sought by a minor, which speaks volumes as to the appointed medical practitioner's focus being on avoiding investigation rather than maintaining public health and medical access.

As for the intersection that the PCPNDT Act and the MTP Act experience, it unfortunately only enhances the building of the stigma around the concept of abortion.

Where the PCPNDT Act was formulated to eliminate the practice of female foeticide, it achieved the exact opposite on the grounds of the fact that much to our misfortune, the doctors sanctioned for abortion procedures aren't exactly adept in comprehending the interplay between the MTP Act and the PCPNDT Act, in the sense that the harsh penalties that are met out to those practitioners who performed the sex-selective abortion.

The Right to Self-Determination:

The thing is, the right to safe abortion is a manifestation of the right to self-determination. We, as individuals, are completely capable of making our decisions on our own time, especially those concerning ourselves and no one else. I believe that Niveditha Menon utilizes said dichotomy for the larger good of an argument wherein the women, were to be reduced as machines for procreation, should get to exercise their choice and raise their voice for their bodily autonomy as they're the ones who bear the brunt of childbirth.

The Social Taboo:
We could address the fallacies in the mere idea of criminalization of abortion. It is crucial to understand that banning abortion does not reduce its demand, it just eliminates access to safe abortions. All of this taboo just ensures that sex is shamed in society and medical abortions are looked at as something to be tuned in criminality and secrecy.

There's also the societal hierarchy making its way into abortion laws in the country, in terms of the socio-economically marginalized becoming further marginalized in the context of access to abortion and the high costs of the safer abortion alternatives in the urban parts of society. And such denial of abortion can constitute a violation of one's right to life, under Article 21 of the Constitution. Women across all social spectrums should not have to opt for clandestine abortion procedures and should be provisioned with ready access to safe mechanisms to have their pregnancies terminated. Our social identity and standing thus, also has a role to play in the social notions and access to abortion.

Conclusion:
The MTP Act also reflects the innate sexism present in our society, as it does stand to criminalize abortion (exceptions aside), in tune with the connotation that abortion is stripping the woman of her 'maternal' instinct. An argument implicitly propounding this line of thought was the one that said that a woman by abortion, violates the right to live of the unborn child, which is trumped by the fact that a human is vested with his/her fundamental rights only on birth.

The decriminalization thus, would only aid in the elimination of such problematic views that refuse to plague our social mindset and notion. Written By:  Soniya Ajay Talreja, BALLB 2nd Year - College: Indore Institute Of Law Affiliated To DAVV University