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Sunday, Jan 28, 2024
By Namita Bhandare

Hello Reader: Of late, the courts have been denying an increasing number of women and girls permission to have a late-stage abortion. There is talk of foetal rights, judicial ‘conscience’ and ethics. Who gets to decide? And what does this mean for women’s autonomy? Read on


The Big Story

Why the courts are saying no to many late-stage abortions

(Source: Unsplash)

The 11-year-old is a rape survivor. The accused is her father. Her mother and brother do not live with them. When she got pregnant there was nobody to tell but once it could no longer be hidden, the rest of her family found out about the rape. The father was arrested. And the girl’s maternal uncle approached the courts for permission to abort. She was 31 weeks pregnant.

Last week, the Rajasthan high court told the 11-year-old that the “fully developed foetus has the right to life”. The judge was going by the opinion of a medical board that had been constituted to look into the girl’s predicament. At this stage, the board said, the foetus’s organs were developed and a heartbeat could be detected.

So, no abortion. Instead, the girl will be placed in an institution where she will be cared for till she gives birth. Once its born, she can, if she chooses, give up the child for adoption.

In Kerala, the high court also turned down the plea of a 12-year-old girl who was impregnated through rape by her minor brother. The parents of the child learned of her pregnancy at 32 weeks when it could no longer be concealed and told the court that to force her to deliver would be detrimental to her physical and mental health. But the court went by the medical board’s opinion that the foetus was viable and, so, ruled no to abortion.

Minor rape victims aren’t the only ones seeking late stage abortions.

On January 4, the Delhi high court gave permission to a pregnant woman for an abortion. The woman’s husband had died in October and she found out she was 20 weeks pregnant a few weeks later. In December she decided she was in no mental condition to continue with the pregnancy. A psychiatrist agreed that continuing with the pregnancy could “impair her mental stability as she is showing suicidal tendencies.”

But last week, a single judge bench of the Delhi high court recalled its own order saying that at 29 weeks “the foetus does not show any abnormality, foeticide in this case is neither justified nor ethical.”

The Delhi high court was acting on precedent. In October last year, the Supreme Court in October had recalled an earlier order terminating a 26-week pregnancy after the medical board ruled the foetus was viable and justice Hima Kohli said her ‘judicial conscience’ did not permit her to give permission for an abortion. The woman who is already a mother of two suffers from mental health issues and had not discovered her pregnancy due to a medical condition called lactational amenorrhea, or the cessation of periods while breast-feeding a child.

[Read Utkarsh Anand’s article on India’s abortion law here]

Bare acts

(Source: HT)

Until it was amended in 2021, India’s law allows abortion until 20 weeks of pregnancy. The amendment now allows abortions for up to 24 weeks and even beyond, provided a medical board—usually a gynaecologist, a radiologist, a neo-natal specialist, a psychiatrist etc—finds serious abnormalities in the foetus.

“Before the amendment unless there was a substantial foetal abnormality, we discouraged rape survivors to go to court,” says Dr Nikhil Datar who has actively been involved in at least 300 court petitions and still has one pending before the Supreme Court. Now even if the foetus is normal, more and more girls and women are approaching the court for permission to terminate at well beyond 24 weeks, he says.

Not all are minor rape victims. In some cases a husband dies, in others a partner goes back on a promise to marry. Mental health issues in the mother might manifest themselves. And in many cases, especially those involving the pregnancy of a minor girl, the fact of the pregnancy doesn’t become known to the parents until it is advanced either because the child herself doesn’t know or is too scared to speak up.

In September 2022, a three-judge Supreme Court bench of justices D.Y. Chandrachud, A.S. Bopanna and J.B. Pardiwala passed a landmark judgment to end a 22-week pregnancy. The petition had been filed by an unmarried woman identified only as X. After her partner deserted her, she did not want to become a single mother and so had approached the court for permission to terminate her pregnancy.

The ruling was remarkable for its unequivocal advocacy for the autonomy of the mother. Ruling that the Constitution does not make a distinction between married and unmarried women, it stated: “It is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion…Depriving women of autonomy not only over their bodies but also over their lives would be an affront to their dignity.”

[I wrote about the landmark Supreme Court judgment in an earlier newsletter here]

No one size fits all

(Source: UNICEF)

In June 2023, reports The Leaflet, the same Kerala high court allowed the termination of pregnancy at 31 weeks. In November 2023, it was Kerala high court again that allowed the termination of a 32-week pregnancy. Termination of pregnancies have also been allowed at 33 weeks (Delhi high court) and 35 weeks (Calcutta high court).

But the lack of uniformity in granting permission is not the only problem.

Judges go by the opinion of the medical boards. In many cases, these boards are known to reverse their own stand. In the October 2023 Supreme Court case, one of the doctors wrote to the court saying he disagreed with the rest of the board’s findings to go ahead with the abortion, leading the court to reverse its earlier order.

“Doctors aren’t well-versed in rights’ issues,” says Dr Datar. What rights does an unborn foetus have? Do these rights change based on diagnoses of normal and abnormal? Medical curriculums are silent on this, leaving doctors and, consequently, judges to act according to their individual conscience.

All this of course means robbing the woman of her autonomy. Whether she can or cannot abort a foetus is now dependant entirely on a medical board, strung together by a court order. Her life’s course now depends on what the board determines for her.

The case of minors forced to deliver the children of their rapists is particularly egregious. Packed off to institutions just to give birth to a child that will be put up for adoption might assuage judicial conscience but does little to serve justice for the raped and already traumatised girl.

Of late, there has also been a note of worrying judicial moralising that seems to run counter to the Supreme Court’s landmark September 2022 judgment. Subsequent rulings have strayed from the language of the rights of the mother to the rights of the unborn foetus.

“Abortion is a crime,” ruled the Chhattisgarh high court while dismissing a plea for termination on the grounds of a strained marital relationship. Ethics and foetal rights are other favoured terms.

Maybe the question to ask is who are the courts protecting? An unborn foetus or the woman or girl whose mental health and future course of life will be irrevocably changed?

The great Oscar ‘snub’

(Source: HT)

Nominations for this year’s Oscars have led to much hand-wringing and breast-beating over the ‘snub’ to Barbie and its film-maker Greta Gerwig (for instance here and here). Margot Robbie in the lead has also been overlooked, though Ken played by Ryan Gosling has made the cut, apparently underscoring the whole point about patriarchy. He too huffed and puffed about the Great Snub even as Hillary Clinton took to X to express disappointment (and a truly awful pun).

In its 100-year-old history, the Academy has only nominated eight women for best director, including the one nominated this year, Justine Triet for Anatomy of A Fall. Only three, Kathryn Bigelow (Hurt Locker, 2009), Chloe Zhao (Nomadland, 2020) and Jane Campion (The Power of the Dog, 2021) have won.

But—three cheers and yay—three of the 10 movies nominated for best picture this year have been made by women. These include the ‘snubbed’ Barbie and Anatomy of a Fall along with Past Lives.

And for those yammering on and on about ‘snubs’ how about at least a passing nod to the first-ever Oscar nominee of Honduran descent—the best supporting actress to America Fererra? It’s for her role in Barbie.

Meanwhile, in India, there’s cause for cheer with the nomination of Delhi-born Nisha Pahuja’s documentary, To Kill a Tiger. Set in a small village, it traces the story of a father’s search for justice for the abduction and rape of his 13-year-old daughter. Watch the official trailer here.

Seen and heard

“It is the culture in India to serve the old aged mother-in-law or grandmother-in-law as the case may be.”

Justice Subhash Chandra of the Jharkhand high court added that that the practice is both cultural and an obligation on women. Sadly, not much was said about the cultural obligations of sons.

The long(ish) read

Shere Hite (Source: The Guardian)

Your answer to the question—which ground-breaking study of female sexuality published in 1976 remains the 30th best-selling book of all time—probably dates you. If you’ve answered Kinsey Reports, you’re wrong. But I don’t blame you for it’s only a person of a certain vintage ( ie me) who might vaguely remember the name of Shere Hite.

A pivotal figure of Second Wave Feminism right up there with Germaine Greer, her The Hite Report challenged traditional beliefs about female sexuality, including the one that went nice girls thought sex was a nasty but necessary business. Orgasms? Not intercourse, claimed Hite, so much as clitoral. She was accused of ‘man-bashing’ and even faulty research—her 1976 book was based on 3,000 responses to 100,000 replies to her questionnaire.

Timed with a new documentary, The Disappearance of Shere Hite, Joanna Briscoe writes about her life and association with Shere Hite in The Guardian. Click here to read.

Field Notes

No ladies please: Throngs of men seeking work in Israel

Enough and more has been written about the low levels of women’s employment in India. Now, a flagship report by the International Labour Organisation raises concerns not just about women’s low labour force participation globally but that of youth too, both of which tend to “fare significantly worse in labour markets”.

Looking at youth unemployment through a gender lens, the Centre for Economic Data and Analysis (CEDA) at Ashoka University finds some stark disparities. Only 42.1% of India’s youth aged between 15 and 29 years were part of the labour force in 2022-23. But within this group, labour force participation was 61.6% for young men and just 19.7% for young women.

Among those already in the labour force, 13.2% were unemployed in 2022-23, with this share being higher for women and for those with higher levels of education.

In urban areas, young workers, men and women, were more likely to be working in the service sector. It was agriculture for rural areas.

There has been some improvement in young women’s labour force participation, especially those living in rural areas. But the bad news is they continue to be predominantly occupied in agriculture and as unpaid helpers.

Kulvinder Singh, research analyst with CEDA has a detailed analysis here.

Around the world

In Spain, a judge has recommended that Luis Rubiales, the former soccer chief, should face trial for his non-consensual kiss of a star player during the Women’s World Cup medal ceremony last summer. The judge has recommended that three officials, including Jorde Vilda who was fired as the team’s coach, be tried for coercion and pressurising the player to retract.

In Japan, women will be participating for the first time in a 1,250-year-old ceremony called the naked festival held in February. The 40-odd women will be fully clothed and will make ritual offerings but will not take part in the main part of the festival in which men dressed in loincloth clash with each other in a bid to ward off bad luck.

…And the good news, Cricket West Indies and the West Indies Players’ Association have signed an agreement to promote gender pay equity. ESPNCricInfo has the deets.


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Produced by Nirmalya Dutta

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