Policy Wise

If you're new here, you may want to subscribe to my RSS feed. Thanks for visiting!

Abortion is a right. So should be sex determination.

In a recent judgment, the Mumbai High Court has ruled against a plea seeking quashing of the amendment to Preconception and Prenatal Diagnostic Techniques Act (PCPNDT Act) which prohibits sex-determination. The petitioners argued that the PCPNDT Act in its current form was in conflict with Medical Termination of Pregnancy Act (MTP Act) of1972. The Court in its judgment said that sex determination was against the spirit of the Indian constitution and upheld the impugned amendment.

Sex determination and abortion in India is primarily regulated by two laws. The Medical Termination of Pregnancy Act (MTP Act) of 1972 and the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act of 1994 subsequently amended into the PCPNDT Act in 2003 following the orders of the Supreme Court in CEHAT V Union of India–ostensibly to plug in the loopholes in the original act. The legislation regulates the use of prenatal diagnostic techniques for the determination of the sex of a fetus, and prohibits sex-determination as it would lead to selective female foeticide.

So is the PCPNDT Act in conflict with MTP Act? In one sense it is. Foeticide is defined as the act of killing the fetus–indeed, it is the first step in abortion. Hence, it is fallacious to distinguish foeticide from abortion as long as it is performed with the express approval of the mother. Unfortunately, this is the fallacy which marks the arguments of women activists who uphold the right to abortion while decrying the practice of female ”foeticide”.

To understand why the Court may have maintained the difference between foeticide and abortion, it would be useful to have a short discussion of the MTP Act. It would help us understand why in country like India where gender rights are not nearly as advanced as in the West, a law of this nature was enacted in the first place. According to this act, a pregnancy can be terminated by a Registered Medical Practitioner in the following two events: a) if it poses a grave risk to mother’s mental or physical health b) if there is a substantial risk that child would suffer from mental or physical abnormalities. Interestingly enough, by the way of explanation, a clause has been inserted which permits abortion in case of contraceptive failure (only in case of married mothers) which is defined as having met the standard of event one. (Threat to mother’s mental health.) It is clear from the above discussion that the express purpose of the above act was to act as a population control mechanism. The unfettered right to abortion it has granted (via the contraceptive failure clause which for obvious reasons is unverifiable) is a de facto implication–not de jure.

Thus, even though abortion is virtually unrestricted in India, it is not founded on the principle of primacy of women over her own body. To understand this vital philosophical difference, we have to look at American jurisprudence. Roe V. Wade, the historical US Supreme Court decision overturned anti-abortion laws because they violated privacy laws deriving from the Due Process clause of the 14th amendment to the US constitution. But is the right to abortion only linked to privacy? In Carhart v Gonzales, the US Supreme Court recently upheld the the Congresses’ ban on partial birth abortions. In her spirited dissent, Justice Ruth Bader Ginsburg (joined by justices Breyer, Souter and Stevens) wrote,

This legal challenges to undue restrictions on abortions do not seek to vindicate some generalized notion of privacy; rather they center on a women’s autonomy to decide her life’s course, and thus to enjoy equal citizenship stature.

Coming from this philosophical tradition, right to abortion is not merely linked to privacy but is an essential element in ensuring that women enjoy equal rights in the society. Hence, any restrictions on abortion–even those imposed in the name of societal goods–are violative of women’s autonomy. Further, the right to sex determination is intricately link to right to abortion. Almost every argument in favor of abortion would be equally applicable to sex-determination. Hence, those who favor abortion as a right rather than merely a privilege granted by the state in case of accidents cannot morally argue against sex determination even if leads to female ”foeticide”. It is plainly disingenuous to argue, as Pamela Philipose does, that the state has the right to interfere in plainly private matters in the name of ‘’societal demands”,

To the first argument, one can only say that society has often had to choose between competing rights and social goods — in this case the right/need of an individual to choose the sex of his or her child is pitted against society’s right/need to have more equal sex ratios — while legislating on various issues. Consequently, in the light of certain socially desirable goals, the state would have to favour one right/ good over another. Almost every law or regulation is evolved after making such determinations. To take a facile example, the right of a motorist to arrive at a destination as quickly as possible has to contend with traffic signals which place restrictions on the movement of all commuters for public safety.

Philipose’s analogy is wrong for two reasons. First, red lights or speed limits don’t restrict the motorist’s right to reach his destination; they merely impose some limits on an essentially public behavior. Second, the motorist derives direct benefit from these restrictions as on a lawless road he is far more likely to suffer injuries or get delayed. In case of abortion, not only is the state controlling an essentially private affair but also demanding sacrifices at the individual level without offering direct benefits for the individual concerned. In other words, while it is indeed true that a better sex ratio benefits the society, it is hard to divide that collective benefit among individuals in an equitable manner.
A far better analogy would be a healthy sex ratio and public transport. It is given that public transport serves society’s goals (keeps down costs, pollution e.t.c.) but would coercive methods be advocated to make people give up private transport? Or it would be better to incentivize public transport via subsidies or congestion charges? I would argue that in both cases the societal goals would be better served by policy measure which rely on incentives and not coercion.

Second, we look at the administrative argument. While India has never lacked laws, it is implementation side which frequently leaves much to be desired. According to government’s own figures, the rate of conviction under the PCPNDT Act remains abysmally low with the first conviction under the Act only happening in 2006! This, for a law which has been in the statue books since 1994, points to a more systematic failure than merely an administrative one. And what may that be? One of the standard arguments offered by women activists against anti-abortion laws is that those who want it desperately enough would obtain it irrespective of what the law says. Further, it only pushes them away from mainstream medical practice and in to the hands of quacks. Correct. Pray, then why shouldn’t be the same argument apply in case of people wanting to know the sex of the fetus or wanting to abort it in case it’s a female child? I would argue that in a state which grants an unrestricted right to abortion, it is virtually impossible to attempt to control the sex of the babies being aborted. So the demands for stricter implementation of PCPNDT Act are misplaced; the act is as unimplementable as laws banning abortion would be!

Finally is the economic argument. As Professor Gary Becker (and many others) has argued,

What about the overall effects in a society of skewing the sex ratio of births toward boys? The fewer girls who are born presumably would be better off since they would be better educated, and in other ways better treated by parents who want them. This would be reinforced if the effect of sex selected abortions is to lower the overall birth rate since it is well established that families with fewer children invest more in each one, girls as well as boys.

As children become adults in cohorts with a high ratio of boys, the advantage of girls and women increases since they are scarcer

The most important argument is this: should unwilling parents be forced to have children? And if they do so; how would they treat them? While the skewed sex ratio is not desirable, should the quality of life of girl-child be sacrificed at the altar of mere numbers?

As Policy Wise has argued before, the key to saving babies is empowering mothers; ensuring female education; and ensuring equal economic opportunities. The state–instead of policing measures–would be well-advised to devote its energy in tacking these key challenges. Restricting sex-determination which de facto limits the right to abortion is an assault on women’s independence and primacy over her destiny.

If you enjoyed this post, make sure you subscribe to my RSS feed!