By Shamik Datta and Trisha Choudhary
Introduction
Abortion laws have been prevalent as a part of popular discourse in the recent past, with several countries, including India, amending or creating abortion laws and respecting abortion rights. India has been in the process of amending[1] its abortion act, the Medical Termination of Pregnancy Act of 1971 (“MTP Act 1971”).[2] On 17th March, 2020, the Lok Sabha passed the Medical Termination of Pregnancy (Amendment) Bill, 2020 (“the Bill”), which is currently due for consideration in the Rajya Sabha.[3] While the Bill offers renewed considerations regarding the circumstances under which one might abort a pregnancy, the gamut of beneficiaries remains a matter of concern.
The Bill fails to address the case of non-cis-gendered females. Among various possibilities, trans men who could have opted out of surgery or hormonal treatments may be physiologically able to conceive off-springs and therefore may need access to abortion facilities.[4] However, the highly gendered language of the Indian laws makes them exclusive for cis-gendered females. This is despite the recent judgements passed by the apex court, which call for an environment conducive to the recognition of sexual health and reproductive rights of all individuals, irrespective of gender.[5]
This blog aims to analyze how the language of the Bill disregards non-cis-gendered persons who may need abortions, which violates their rights guaranteed under Articles 14, 15 and 21 of the Indian Constitution. It further analyses the social ground realities currently observable in the medical practice and accessible abortion facilities for non-cis females. Furthermore, it aims to propose solutions that could make the laws more inclusive.
Need for an Inclusive Abortion Law in Light of Recent Legal Developments
Under recent legal developments, reproductive rights, including access to safe abortions, are a part of rights under Article 21, which guarantees the Right to Life and Personal Liberty.[6] This forms the first prong of the analysis of this blog. It is followed by a second prong that addresses the need to extend the same to all persons, including non-cis-gendered persons.
A. Reproductive Rights
Since the 1994 International Conference on Population and Development (ICPD) Programme of Action, reproductive rights have developed as a core subset of human rights.[7] They include Right to birth control, Right to access quality reproductive healthcare and the Right to legal and safe abortion.[8]
The 9-member constitutional bench of the Supreme Court in Justice K.S. Puttaswamy v. Union of India held that the Right to make reproductive choices is a part of personal liberty of an individual[9]. This was further followed recently in the Kerala High Court decision in ABC v. Union of India.[10] The Puttaswamy case further laid down the structural principle of personal autonomy, which was held to include reproductive rights of women and decisional autonomy of every individual irrespective of gender identity[11].
Earlier, the court in Suchita Srivastava v. Chandigarh Administration (2009) had enunciated that “there is no doubt that a woman’s right to make reproductive choices is a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India.”[12]
The aforementioned cases of Suchita Srivastava and Puttaswamy argue in favour of reproductive rights that include abortion rights to only ‘women’. In this regard, the growing LGBTQ movement in India and the recent legal developments call for a more comprehensive interpretation of such rights to benefit persons other than cis-gendered females. This would help non-cis-gendered persons to avail their reproductive rights at par with persons who fall under the strict interpretation of the term ‘women’.
B. Equality for all
The MTP Act, 1971, provides a legal framework for “pregnant women” to obtain abortion services. However, the Act only recognizes “women” in a strict cis-gender sense.[13] It does not attempt to define the term in a gender-neutral manner to make its provisions applicable to non-cis-females who may get pregnant, as has been done by other countries such as Argentina in the recent past.[14]
The apex court in the 2014 case of National Legal Services Authority (NALSA) v. Union of India gave legal recognition to non-binary gender identities and stated that transgender individuals are entitled to fundamental rights under Articles 14, 15, 16, 19(1)(a) and 21.[15]
It held that “sex” not only refers to biological attributes (chromosomes, genitalia and secondary sexual characteristics) but also includes “gender” based on one’s self-perception.[16] Justice Nariman, in the case of Navtej Singh Johar v. Union of India (2018)[17], clarified that discrimination on the grounds of sex under Articles 15 and 16 includes discrimination on the grounds of gender identity. The judgement states that “the expression ‘sex’ used in Articles 15 and 16 is not just limited to the biological sex of male and female, but intended to include people who consider themselves neither male nor female.”[18]
Article 14 promises equal protection of laws to all citizens of India and prohibits the State from discriminating against persons on the basis of “sex” besides other traits. In M. Nagaraj and Ors. v. Union of India (2006)[19], the court held that the basic principle behind Article 14 is that it must apply equally to all persons under similar circumstances.[20] Since non-cis-gendered persons are capable of becoming pregnant, such persons should be considered at par with cis females, as they face similar circumstances of pregnancy. In the Navtej Singh case, the court recognized that while the legislature holds the authority to enact laws that pertain to specific classes of persons, for such legislation to be justified, it must stand the test of twin conditions; the classification of persons must rest on intelligible differentia and such differentia must have a rational object that it seeks to achieve.[21] There exists no intelligible differentia to exclude non-cis-gendered pregnant females who may get pregnant to seek abortion benefits; nor does the Bill seek to achieve any rational objective by privileging one part of the population while excluding the other. Thereby, the exclusion of non-cis-gendered persons from abortion laws does not satisfy these twin conditions. Limited application of the law to ‘women’ violates the rights guaranteed under Article 14 to persons falling outside the scope of the term. Therefore, while considering the definition of ‘sex’ as held under the NALSA judgement, there is a need for a broader application of abortion laws to ensure reproductive justice to all physiologically able beneficiaries, including individuals not identifying as women.
The Puttaswamy and the NALSA judgements made references to international laws such as the Universal Declaration of Human Rights, 1948 (UDHR) and the International Covenant on Civil and Political Rights, 1996 (ICCPR).[22] Both the UDHR[23] and the ICCPR[24] uphold the Right against sex/gender-based discrimination for all human beings. In Toonen v. Australia (1994)[25], the United Nations Human Rights Council clarified and endorsed the inclusion of the Right against discrimination based on sexual orientation and gender identity under the ambit of international human right laws. India has ratified both the UDHR and the ICCPR.[26]
In the case of Vishakha v. State of Rajasthan (1997), the apex court noted that international conventions consistent with fundamental rights must be read to “enlarge the meaning and content thereof” of national laws.[27] This was reiterated in the NALSA judgement where the court held that in the absence of a contrary legislation, courts should give respect to international law in the context of its applicability and stated that there exists “sufficient legal and historical justification in our country” to follow such provisions.[28] In light of this, the recognition of reproductive rights and autonomy of all must be interpreted constructively with regards to abortion laws in India.
The NALSA bench further referred to the Yogyakarta Principles (2006) on the application of international human rights law in relation to sexual orientation and gender identity.[29] It upheld its application under matters of national law.[30] Principle 17 ensures the Right to the Highest Attainable Standard of Health without discrimination on the basis of gender identity.[31] Sexual and reproductive health including abortion is a key dimension to this principle.[32] Therefore, appropriate reproductive health and abortion facilities should be made available to all, irrespective of gender identity and sexual orientation, in accordance with the principles of international law mentioned above.
However, the lack of gender-inclusive abortion facilities and legal grounds to claim the same for transgender people, intersex and gender diverse persons, leads to indirect discrimination on the basis of sex violating Article 15 of the Constitution. [33] While legal developments validate abortion facilities for non-cis-gendered pregnant persons, the situation, in reality, is contradictory.
The Way Forward
The MTP Act, 1971, was seen as a ‘progressive’ measure during its implementation. It granted abortion rights to women under certain circumstances.[34] However, as the law has evolved, it has failed to integrate the recent developments that would have granted abortion rights to non-cis-genders at par with cis females. The judgements in the NALSA and Navtej Singh Johar cases, the principle of decisional autonomy and reproductive rights under the Puttaswamy Judgement coupled with the application of the Yogyakarta Principles justifies the need for an inclusive and gender neutrally termed abortion bill.
A possible solution to this would be replacing the words “pregnant woman” with a gender-neutral “pregnant person” phrase. Notably, the previous MTP amendments have focused on inclusive language, by changing specific terms and phrases. For example, “mentally ill persons” was changed to “lunatic”‘ via the MTP (Amendment) Act, 2002[35] , and the proposed 2020 amendment bill proposes to replace “husband” with “partner”.[36] A similar change by including the word “pregnant person” would make the MTP Act, 1971 significantly more gender-inclusive by going against the rigid gender binary nature.
Socio-medical Changes Needed Beyond the Legal Sphere
The language of the law is socially constructed and construed.[37] Rather than being naturally neutral or ordained, it reflects worldviews and chosen meanings of the ones in power. The language of the law has the potent ability to shape popular and authentic understandings of the subject matter. This in turn, has a significant impact on society, where certain selected worldviews and powerful assumptions are imposed on the general public. Reimposition of gender binaries via the law often leads to the disregard of the social rights and welfare benefits of the ones not conforming to the binary.[38]
This imposed gender binary is exemplified in the structure of the medical facilities in India. For long, medical bias and gender-based discrimination has pervaded health care services.[39] In India, many healthcare facilities and practitioners fail to provide gender-inclusive care. This goes on to increase the accessibility gap for non-cis-genders. Gender-inclusive care would include the Right to access safe, unbiased and stigma-free reproductive health care.[40] For such a measure to be implemented on a large scale, it is crucial to address the situation from the grassroots level, with sensitization and gender-affirming programs that recognize and acknowledge an individual’s gender expression and identity.
Conclusion
To achieve NALSA judgement’s vision and a gender-inclusive society, non-cis-gendered persons must be given access to facilities at par with cis-genders. The proposed amendment bill, although only recently framed, has failed to do so despite the recent legal developments in India, as has been assessed by this paper. The NALSA and Puttaswamy judgements recognized the sexual and reproductive health rights and autonomy of all individuals. However, the identification of the gendered language of the law and changes to it is not the sole solution. The social ground realities of medical practice and the bias against persons not conforming to the gender binary in India must also be addressed.
The authors, Shamik Datta and Trisha Choudhary, are currently law students at the National Academy of Legal Studies and Research (NALSAR), Hyderabad.
[1] The Medical Termination of Pregnancy (Amendment) Bill, 2020, 55 of 2020.
[2] The Medical Termination of Pregnancy Act, 1971.
[3] The Hindu, Parliament proceedings live | Lok Sabha passes the Medical Termination of Pregnancy (Amendment) Bill, 2020, March 17, 2020, available at https://www.thehindu.com/news/national/parliament-live-march-17-2020/article31088813.ece (Last visited on January 22,2021).
[4] Juno Obedin-Maliver & Harvey J Makadon, Transgender men and pregnancy, 9(1) Obstetric Medicine 4–8 (2016).
[5] Justice K.S. Puttaswamy v. Union of India, (2017), 10 SCC 1; National Legal Services Authority v. Union of India, 2014 5 SCC 438; Navtej Singh Johar and Ors. v. Union of India and Ors., AIR 2018 SC 4321.
[6] Justice K.S. Puttaswamy v. Union of India, (2017), 10 SCC 1, ¶82.
[7] United Nations Population Fund, Danish Institute for Human Rights, The Office of the United Nations High Commissioner for Human Rights,Reproductive Rights are Human Rights- A Handbook for National Human Rights Institutions, HR/PUB/14/6 (2014).
[8] United Nations Human Rights Committee, Februaury 28- March 25, 2011, General Comment No. 36 on Article 6 of the ICCPR- Right to Life, ¶8, U.N. Doc. CCPR/C/GC/36 (October 30, 2018).
[9] Justice K.S. Puttaswamy v. Union of India, (2017), 10 SCC 1, at para 82.
[10] ABC v. Union of India (2020), 2 KHC 526, ¶10.
[11] Justice K.S. Puttaswamy v. Union of India, (2017), 10 SCC 1, ¶82.
[12] Suchita Srivastava and Another v. Chandigarh Administration (2009) 9 SCC 1, ¶11.
[13] Dipika Jain, Proposed Changes to Abortion Law Continue to Sideline Pregnant Persons, March 15, 2020, available at https://science.thewire.in/health/proposed-changes-to-abortion-law-continue-to-sideline-pregnant-persons/ (Last visited on January 24, 2021).
[14] Sutton, B., & Borland, E., Queering abortion rights: notes from Argentina (2018).
[15] National Legal Services Authority v. Union of India, 2014 5 SCC 438, ¶54-69.
[16] Id., ¶59.
[17] Navtej Singh Johar and Ors. v. Union of India and Ors., AIR 2018 SC 4321.
[18] Id., ¶6.
[19] M. Nagaraj and Ors. v. Union of India, 2006 8 SCC 212.
[20] Id., ¶106.
[21] National Legal Services Authority v. Union of India, 2014 5 SCC 438, ¶233.
[22] JAIN, supra note13, ¶21.
[23] The Universal Declaration of Human Rights, December 10, 1948, Art. 2, 217 A (III).
[24] International Covenant on Civil and Political Rights, Art. 2(1), G.A. Res. 2200A (XXI), (March 23, 1976).
[25] Toonen v. Australia (1994), 1994 SCC HRC 14.
[26] Office of the High Commissioner for Human Rights, United Nations Human Rights Treaty Bodies Database, available at https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=79&Lang=EN, (Last visited on January 24, 2021).
[27] Vishakha v. State of Rajasthan (1997), 6 SCC 241, ¶7.
[28] National Legal Services Authority v. Union of India, 2014 5 SCC 438, ¶53.
[29] Id ¶53.
[30] Id, ¶53.
[31] Yogyakarta Principles (YP Plus 10), Principle 17, the 10th of November 2017.
[32] Yogyakarta Principles (YP Plus 10), Principle 17 (F), the 10th of November 2017.
[33] The Constitution of India, 1950, Art 15(1)
[34] The Medical Termination of Pregnancy Act, 1971, Cl. 1.
[35] The Medical Termination of Pregnancy (Amendment) Act, 64 of 2002, Cl. 2(1).
[36] The Medical Termination of Pregnancy (Amendment) Bill, 2020, 55 of 2020, Cl. 2(3).
[37] Lucinda M. Finley, Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886 (1989).
[38] Erin Calhoun Davis, Situating œFluidity: (Trans) Gender Identification and the Regulation of Gender Diversity, 15(1) GLQ A JOURNAL OF LESBIAN AND GAY STUDIES (2009).
[39]Ankur Paliwal, Scroll.in, ‘How could you have been raped?’: New study on how India’s transgender people face bias from doctors, November 6, 2017, available at https://scroll.in/pulse/856285/transphobia-among-indian-doctors-study-aims-to-uncover-reasons-for-bias-against-transgender-peoplein (Last visted on the 1st of February, 2021).
[40] Juno Obedin-Maliver & Harvey J Makadon, Transgender men and pregnancy, 9(1) SAGE Journals 1 (2016).
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