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“To Be Or Not To Be A Mother- I Had To Decide”

by Guest Author
written by Guest Author

– By ‘A Common Woman’

I had conceived, as a single unmarried girl in an act of love. I was with a person I had fallen in love with and it happened. In the moment, he decided he wanted to be a father, though we hadn’t discussed it before. Let me confine to my side of the story without getting into the details that will necessarily include elaborating on his view.

I wasn’t ready for this baby and yet when I realized I had conceived, a wave of motherhood came over me. Looking back, it is hard to tell if it was due to the collective conscience of all that I had heard about being a mother, my biological instincts taking over, or a sudden rush of emotions to have a family, I can confirm that I felt the strong urge to be a mother. I wasn’t sure about the man yet, or if I wanted to get married to him or get married at all. Yet I found myself in a mental space, where I wanted this baby more than anything.

We met the gynae, who confirmed the pregnancy and the health of the foetus. I broke the news to my friends and got a mixed response. While some were willing to understand and go with my decision, others thought it was a downright stupid idea. “A child needs both parents”, said one. “You need to be sure of your relationship before you can think of a baby”, said another. “You need to be on a better economic footing before you can bring a baby into the world,” said the third. Before I could break the news to my parents, they found out. As if the news of my being in love with a Muslim man wasn’t enough, my news of pregnancy really broke them. How dare I do this? Sleep with a man, have a baby, and actually think of becoming a mother, without being married. In all of this, the story unfolded nothing short of a Bollywood film. With my parents in tears, my friends all anxious and me trying to reach a decision, it was an intense debate between logic and love.

Till this point in my life, I had always believed that I was a free educated woman who could make my own decisions. Suddenly I was no longer sure. My friends clearly thought I wasn’t in the right mental framework to decide. My parents thought I was ruining my life, my career. I had no one supporting me. In all of this, where did the wishes of my partner fit in, who really wanted this baby? As a man, how much of a say did he have? Was this a case of love-jihad, as some of my friends still want me to believe? I said – “Look at Kalki (Koechlin). Isn’t she having a baby too? She is not married.” “She belongs to a different society. It doesn’t work the same way in the society we live in. What will people say? All your education for what – for this?” came the reply. “How about Neena Gupta’s advice not to be an unmarried mother – have you read that one?”, asked another friend.

My partner left the final choice to me, not without first insisting that I think clearly about my decision and the reasons for it. I read the Islamic view on the subject, and also the Hindu view on it. While the former says that abortion is a crime, the latter has multiple views on when the soul really enters a foetus and when it was okay and when it was not, to abort.

I thought some more and visited my gynae determined to abort. I was 5 weeks into it.

Sitting across the gynae, one of the best in Delhi, my partner and I broke into tears. We just felt too attached to the baby to let go. My gynae said – “In my practice of 30 years, I have seen several men, but I have never seen one crying for a baby. You should rethink.”

We came home and decided to ponder for another week before taking a call. Before I could, my parents came over to my place. So did my friends. They all sat me down, some shouted, others explained – but they all had a consensus – I should take the pill and abort the child. To be or not to be a mother – I had to decide.

The law in India is clear. The woman can decide to abort up to 24 weeks. Till about 6-7 weeks, it’s usually possible to abort using a pill without undergoing any operation. My clock was ticking.

I aborted. It’s hard to say if there was a singular factor that made me decide. I reasoned that I wasn’t ready for the baby. I also couldn’t see my parents cry and thought that I couldn’t bring my baby into this world, giving so much pain to my parents.

It’s been more than six months. I never doubted the intention of my parents or friends. Yet I couldn’t resolve the conundrum. I have thought and dreamt of the baby several times. I have cried for nights. I have wondered – the woman has the womb but does she really have to be a mother to be a woman? What about all the women who decide not to be a mother? Does a woman who wants to be a mother have the freedom to decide- when, where, and with whom? Is the feeling of wanting to be a mother enough – or does a woman need economic freedom, family support, and societal acceptance before becoming one? I am educated, and free to make my choices, yet I found it so difficult to navigate these issues, through the lens of liberalism. Was there another framework – the Quranic framework for instance – which says that no woman conceives or gives birth to a child except by the will of Allah? Did I hurt God himself/herself by aborting the child or did I just make a decision that made sense to me in those few moments?

How about several women in rural areas who have no say in the matter? What if a woman has several kids and does not want another one? How about a woman who has three kids but wants a fourth? What happens when the partners disagree?

To be a mother is not easy, but then not to be a mother isn’t easy either. How do we think about these issues, individually and collectively, while depoliticizing the womb? I am not a mother of a human child yet, except for a lovely dog (a golden retriever who is three and a half years old). Yet in all my 35 years, I have never felt as strongly as I did in those few weeks. I am now able to write about this, simply because I want us to have this dialogue. For people to make informed choices about their bodies, it is time we talk.

But unless we challenge this basic framework and establish that personal is political, how will stories such as these ever find space and be accepted as normal discourse? Does having this experience render one unfit for a public office? People have to decide. If one is going to live a life of honesty, then principles above power have to be the motto.

As to my journey about motherhood, something tells me, it is not a dead end yet.

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When Will the Feminist Movement Become Intersectional?

by Guest Author
written by Guest Author

By Avantika Jagdhari

“As long as women are using class or race power to dominate other women, feminist sisterhood cannot be fully realized.” – bell hooks

White feminism focuses on achieving white female equality at the expense of women of color. Although many may consider it an issue of the past, white feminism is extremely visible today through its modern incarnation of the “girlboss”, which focuses on female empowerment through capitalist means and disregards the needs of lower-income women of color. In order to understand how the feminist movement can become more inclusive, we need to look back at both the history of the feminist movement and Black women’s historical crusades. 

The term feminism has historically been associated with white women due to racialized notions of femininity. White womanhood was often considered more delicate and womanly, while Black women were deemed “strong” and stripped of their femininity. These ideas resulted from the masculinization of Black women, who are “disproportionately likely to face dangerous pregnancy-related complications,” according to Vox. They are three to four times more likely than white women to die from these complications. Black women, especially those who are darker-skinned, are often perceived to feel less pain than white women due to the “natural strength” of their bodies. This dehumanizing belief is still prevalent today (“Black people are so naturally athletic!”). 

Although second-wave feminists advocated for civil rights, they often deemphasized racial issues within the feminist movement and espoused an ideology of “colorblindness”. Additionally, most feminist groups at the time had very few, if any, Black female members. (Gloria Steinem stated: “It’s interesting that people write that predominantly white feminism groups had women of color as members — they didn’t. Flo [Kennedy] was the only black woman at most of these meetings.”) 

 A Genealogy of Intersectionality

Because mainstream white feminism was so hostile, Black women created their own social movement: womanism, a social theory based in their experiences, historical and everyday. Its purpose is to “restore the balance between people and the environment… and reconcile human life with the spiritual dimension,” according to womanist scholar Layli Maparyan. 

Although the origins of “womanism” are murky, Alice Walker is believed to have first used the term in her 1979 short story “Coming Apart.” Walker defined a womanist as a “Black feminist or feminist of color”, and continued:

“A woman who loves other women, sexually and/or nonsexually. Appreciates and prefers women’s culture, women’s emotional flexibility… and women’s strength.…Committed to survival and wholeness of entire people, male and female. Not a separatist, except periodically, for health… Womanist is to feminist as purple is to lavender.”

Womanism is an umbrella which includes feminism. Its central tenets are female empowerment and the preservation of Black cultural values – unlike mainstream feminism. However, some womanists think that their experiences will never be validated by the feminist movement; they see womanism as a movement entirely independent of feminism. 

Even so, the two movements’ ideologies sometimes overlap. In the 1990s and 2000s, the third-wave feminist movement incorporated womanist concepts into its theory. Although the third-wave is similar to womanism, it differs in one major regard: while third-wave feminists regard culture as one of the many elements of a woman’s identity, womanists see their identity through the lens of culture rather than other characteristics such as class or sexuality. 

Both mainstream (Black and white) feminism and Walker’s womanism critiqued the social conditions of women in Europeanized societies. But then a new paradigm was established: Africana feminism, coined by Clenora Hudson-Weems, examined the specific circumstances of women of an Africanized culture. 

Unlike Walker, Hudson-Weems did not see the Africana womanist and feminist movements as correlated. Africana womanists often regard mainstream feminism as myopic, feeling that many aspects of the movement are in conflict with their traditions and cultural autonomy. Hudson-Weems and others rejected feminist theory, arguing that Black women’s cultural perspectives were incompatible with the feminist ideal due to America’s history of racism and slavery. She believed that because the philosophical scope of feminism was limited to a Europeanized society, it provided Eurocentric solutions. 

The values of mainstream feminism often didn’t apply to African women because they were predicated on whiteness. Due to middle-class white women’s perceived fragility, they were relegated to perform the tasks of cooking and cleaning with little else to do. The ideal of an “independent woman” was novel and empowering to them. However, historically, most Black women did not have the luxury of being a housewife. They have always worked to support their families due to the systemic racism that required both themselves and their spouse to work laborious jobs. In direct contrast to white women, many Black women idealize “the soft life”, where they can prioritize rest, healing, and “softness” while defying the “strong Black woman” stereotype and relishing their femininity. Therefore, the principles of the Africana womanist movement are in line with both traditional Black cultural values and the ideals of Black femininity. An Africana womanist was defined as “Self-Naming, Spiritual, Mothering, Family Centered, Nurturing, Genuine in Sisterhood, Male Compatible, and In Concert with Male in the Liberation Struggle,” a marked difference from the ideal “independent woman” of the feminist movement. Hudson-Weems did not hate men nor separate herself from them; on the contrary, she felt that Africana women should recognize their responsibility to protect Africana men under white supremacy, which was their real enemy. She defined womanism as the preservation of cultural autonomy and rejection of the global culture defined by white capitalist media. 

However, in modern-day African womanist and feminist circles, there is an understanding of the broad structure of the feminist movement, even though its Western-centric manifestations are often dismissed. In Mary Modupe Kolawole’s 2002 article Transcending Incongruities: Rethinking Feminisms and the Dynamics of Identity in Africa, Ghanaian feminist scholar Abena Busia stated, “I am comfortable with feminism. If we concede the term feminism, we’ve lost a power struggle… Feminism is an ideological praxis that gives us a series of multiple strategies, and what those strategies have in common is that the woman is important.” 

While their beliefs differ on many fronts, Walker and Hudson-Weems seem to concur about how womanism and feminism characterize men differently. Walker defines womanists as universalists who advocate for the equality of all, desiring a world where men and women can coexist while still maintaining their distinct cultural identities. Unlike feminist theory, which often solely advocated for a white, European model of female autonomy, early womanism championed the empowerment of the Black community as a whole.

Meanwhile, amidst these debates amongst womanists, a newer ideology was taking shape. “Intersectionality” was coined in 1989 by civil rights advocate and scholar Kimberlé Crenshaw, who described it as a framework to view how interlocking power structures affect marginalized people in society. Intersectional feminism examines how one’s social and political identities combine to create different modes of discrimination and privilege – these include factors such as gender, sex, race, caste, ethnicity, class, sexuality, religion, and disability. 

Crenshaw’s framework broadened the scope of the first and second waves of the feminist movement. Intersectionality centered the experiences of the women on the margins of feminism: women of color, poor women, immigrant women, disabled women, etc. Unlike mainstream feminism’s colorblind mentality, intersectionality derives its power from acknowledging the different experiences between women. Rather than simply advocating for the general empowerment and equality of women, intersectionality examines systemic inequality through a female lens.

The intersectionality framework has created terminologies to describe the  complicated discrimination towards particular groups – for example, Black women face “misogynoir”, which cannot be simplified as a mix of sexism and racism, as it is a more intricate societal bias. For instance, in the case of DeGraffenreid v. General Motors (1976), Emma DeGraffenreid and other Black female autoworkers sued General Motors for employment discrimination against Black women. The courts viewed racial and gender-based discrimination at the company separately, finding that its employment of Black men and white women disproved DeGraffenreid’s allegations. The decision codified that Black women must bring a race or gender-based discrimination lawsuit. However, Crenshaw argued that the courts dismissed Black women’s unique experiences by viewing them as only women or only Black. 

Public displays of misogynoir most recently manifested in the differing treatments of Caitlin Clark and Angel Reese. Barstool founder Dave Portnoy, amongst others, denigrated Reese by calling her a “classless piece of shit” for doing the exact same thing that Clark had done a few days prior.

Intersectionality is also desperately needed when it comes to Indian feminism, where upper-class, upper-caste, English-speaking women in metropolitan areas often dominate the feminist movement. Marginalized women have responded by forming their own movements, such as Dalit feminism, which questions both caste and gender roles within the Dalit community and feminism. Because the Indian feminist movement is not attuned to the unique struggles that Dalit women face, such as systemic poverty, illiteracy, and caste discrimination, it represents only a sliver of Indian women. 

Mainstream feminism too often ignores the distinctions between the treatment and experiences of cisgender white, upper-class, or upper-caste women and marginalized women that result in different ideals of equality for each group. 

    Modern-Day White Feminism Upholds the Status Quo

In 2023, the mainstream feminist movement’s understanding of racial politics has undeniably advanced. But is it truly inclusive? 

The truth is that white feminism still runs rampant in feminist circles. Over the years, “female empowerment” has manifested as corporate feminism that champions a certain kind of woman: those who successfully foray into male-dominated spaces, such as politicians or CEOs of Fortune 500 companies.

The “Lean In” feminism of women such as Sheryl Sandberg, an American tech executive and former COO of Facebook, exemplifies this ideology. In her book, entitled Lean In: Women, Work, and the Will to Lead, Sandberg advises professional women to “break glass ceilings” and ascend the corporate ladder by “leaning in” – a cute catchphrase for the idea that women must try harder to advance in the professional world. Sandberg’s brand of feminism encourages women to climb oppressive structures and embrace them instead of resisting against them, capitalizing off of shallow slogans in the name of female empowerment. 

On the surface, Lean In’s chapter titles can seem somewhat feminist: “The Leadership Ambition Gap: What Would You Do If You Weren’t Afraid?”, “Seek and Speak Your Truth”, “The Myth of Doing It All”, and, most notably, “Working Together Toward Equality.” However, the book ends up placing the onus on professional women instead of the systemic gender bias in the workplace: Maybe if women weren’t so afraid to be ambitious, maybe if women didn’t doubt themselves so much, maybe if women asserted themselves more… 

Lean In ignores the realities of intersectionality; as a cisgender, upper-class white woman, Sandberg possesses many advantages that marginalized women do not – namely, she does not have to face the problems of lower wages and racist hiring policies. Nevertheless, she seems to suggest that any woman could ascend to the upper echelons of leadership if they just tried hard enough.

Moreover, Sandberg and other women of her ilk believe in the idea of “trickle-down feminism”: that the success of an elite group of women would result in the gain of all women. A similar topic was also debated on the talk show The Real. Proponents of this ideology disregard the fact that broken systems cannot be fixed by individuals – putting women in positions of power merely makes them the new, more diverse faces of discriminatory institutions. A Facebook cafeteria worker, Nicole, who lived in a garage with her husband and children, helped unionize her cafeteria so that she would be able to purchase essential needs such as food and medical treatment. The Facebook leadership, including Sandberg, perpetuated low wages at the company, which resulted in Nicole’s impoverished circumstances. Underpaid laborers are also often women of color, who are rendered invisible by Lean In. 

The rise of self-help quasi-feminist novels such as Lean In and #Girlboss represents the economic and racial divide within the feminist movement. In her article “Does Feminism Have a Class Problem?”, Kathleen Geier described Sandberg’s ideology as an “enthusiasm for capitalism and [her] advocacy of a depoliticized strategy that focused on empowerment rather than collective action.” 

She argues that in order to advance economic equality, real systemic changes must be made – universal childcare, paid family and sick leave, and a cap on work hours, for instance. White feminists have consistently failed to advocate for these policies, leaving marginalized women to flounder economically and socially. This has become especially apparent during the COVID-19 pandemic, during which lower-income women of color, who comprise more than half of the workers in housekeeping, personal care services, and nursing assistance, suffered greatly. 

In order to progress towards true inclusivity, feminists must rectify the blunders of white feminism by centering the concerns of all women and fighting for the policies that would benefit marginalized women. Rather than being solely concerned with individual female success, the movement must work to dismantle oppressive systems around the world and incorporate the racial politics of intersectionality into its theory and praxis instead of disregarding them as it has historically done. 

                  Works Cited

Jackson, Deborah. “Africana-Melanated Womanism: In It Together.” Cambridge Scholars, 17 August 2022. 

Kolawole, Mary Modupe. “Transcending Incongruities: Rethinking Feminisms and the Dynamics of Identity in Africa.” Agenda, 2002. 

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Medical Termination Of Pregnancy (Amendment) Act, 2021: Progressive But Restrictive

by Guest Author
written by Guest Author

By Atulendra Rathour

The Medical Termination of Pregnancy (Amendment) Act, 2021 has become operative from the 24th of September 2021. The amendment alters the parent legislation i.e., Medical Termination of Pregnancy Act, 1971 (MTP Act 1971) which provides a legal framework regarding abortions in India. The amendment increases the gestation limit for abortions by amending Section 3 of the act. The Amendment act further widens the ambit of the legislation by replacing “any married woman or husband” with “any woman or her partner”. This piece of writing is an attempt to draw a parallel between the Amendment act and the restrictive women’s reproductive autonomy. 

Abortion in India is a penal offense under Section 312 of the Indian Penal Code, 1860 (IPC, 1860) which provides imprisonment for three years. The MTP Act, 1971 provides with certain exceptions under which a woman can undergo pregnancy termination while escaping liability prescribed in IPC, 1860. With the Amendment Act, the gestation period has increased up to 24 weeks from 20 weeks. The woman can undergo an abortion within this period with the advice of medical practitioners. 

The Amendment Act is praiseworthy but still fails to regard woman’s reproductive autonomy. Instead of being a “right-based legislation” the act ends up being a “Doctor centric legislation”. Opinion of Medical Practitioner remains mandatory to undergo abortion as stated in Section 3. This infers that even if a woman wants to undergo an abortion she can’t if Medical Practitioners are of a contravening opinion. Additionally, vulnerable groups such as Sex Workers fall outside the scope of legislation as “Partner” remain a decisive factor, hence restricting their rights. 

The amendment seeming progressive fails to regard the precedent set by the landmark Puttaswamy Judgment in which the Hon’ble Supreme Court recognized that the ‘Right not to Procreate’ forms a part of Rights provided under Article 21 of the Constitution. The Hon’ble Supreme Court in Suchitra Shrivastava v. Chandigarh Administration observed, “There is no doubt that a woman’s right to make a reproductive choice is also a dimension of ‘Personal liberty as understood under Article 21 of the Constitution of India. It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating… there should be no restriction whatsoever on the exercise of reproductive choices such as Woman’s right to refuse participation in sexual activity or alternatively on the insistence on use of contraceptives method.”

Other than this, health infrastructure followed by orthodox society possesses a serious challenge to the provisions of the amendment. India ranks 145 out of 194 countries according to World Health Statistic Report, 2018. NITI Ayog has already informed about the shortage of about 6 lakh Doctors and 20 lakh Nurses. The situation is even more alarming in rural parts; according to Rural Health Statistics Report, there is a shortage of about 80% of Surgeons, Pediatricians, and Physicians, 70% of Obstetricians and Gynecologists. Apart from medical Practitioners, lack of equipment also possesses a serious problem. It would not be surprising to know that India’s Health budget is the fourth lowest in the entire world. 

Conclusively, the amendment act is progressive enough to widen the scope of Women’s reproductive autonomy with regards to abortion by increasing the time limit but still, the autonomy of women is not absolute as the Medical Practitioner has a final say about it. On the other hand, poor health infrastructure further remains a serious concern while undergoing an abortion.                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

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Women Rights To Contraception In India And Preventing Unwanted Pregnancy In India

by Guest Author
written by Guest Author

By Advocate Meenu Padha and Varushi Yadav 

Introduction

It would not be wrong to argue that in India, the concept of human rights was first introduced and systematically institutionalised in 1950 when our country’s Constitution came into force. Many governmental programmes and methods have been created to supplement the rising acknowledgement of an individual’s rights, and the human rights movement has witnessed significant progress and success.

In India, the issue of reproductive rights remains uncertain. While the importance of both men and women’s rights to choose and control their own reproductive functions has grown in prominence, the concept’s introduction in India is particularly difficult due to the country’s complex social structures, where procreation is frequently seen as a social expectation and individual rights are often overlooked. Reproductive rights, in a broader sense, have received greater attention in recent years. This is due, in part, to the unwavering efforts of civil society organisations, who have emphasised the importance of international treaties in the Indian context.

Experts have pointed out that reproductive rights are an intrinsic aspect of human rights in general, as well as our Constitution on a national level, and that India owes them to all its women and those who identify as such. Reproductive rights and a larger human rights framework are mutually interdependent. Reproductive rights receive their meaning and force from long-recognized human rights, just as human rights cannot be realised without championing women’s reproductive rights. However, how the two are combined in practice is unclear. Indeed, explaining to an Indian audience that reproductive rights pertain to everyone, regardless of age or marital status, is a tough notion to grasp. It’s no surprise, then, that reproductive rights have yet to be fully established, despite the fact that they are an inalienable component of every human being.

Miserable Condition That We Need To Be Aware Of

In India, one woman dies every 15 minutes during pregnancy and childbirth due to lack of healthcare. Despite the fact that India legalised abortion over five decades ago, access is highly limited, and one woman in India is believed to die every three hours as a result of unsafe abortion. Despite national legislation prohibiting the marriage of girls under the age of 18, India continues to have the highest number of child weddings; and despite regulations and initiatives ensuring women’s maternal healthcare, India is responsible for 20% of all maternal deaths worldwide. Several states have established coercive population policies that bar families with more than two children from assistance programmes, government jobs, political engagement, and access to education and health care – all without ensuring that couples have access to a full range of contraceptive treatments.

Furthermore, Indian women face one of the world’s highest rates of HIV/AIDS infection and discrimination if infected, as well as forced abortions of female foetuses, trafficking for forced prostitution, custodial rape in government institutions, workplace sexual harassment, and harmful cultural practices that seriously undermine reproductive health. As numerous national and international stakeholders battle to give meaning to essential ideas such as women empowerment, rights, and choice, the right to reproductive health, including abortion, takes on special significance in the Indian context. A woman, for example, should have the freedom to choose whether or not she wants to marry, who she wants to marry, whether or not she wants to have children, how many children she wants to have, and the spacing between them. This is significant because, while both the male and female contribute to procreation, it is the female who is biologically responsible for ensuring the baby’ complete growth.

In the past, India’s reproductive health legislation and policies have failed to embrace a rights-based approach. Simply put, based on the various definitions of reproductive rights, they can be said to include some or all of the following rights: the right to safe and legal abortion; the right to control one’s reproductive functions; the right to access in order to make reproductive choices free of coercion, discrimination, and violence; and the right to access education about contraception and sexually transmitted diseases. The need for us to recognise and address these as rights has become even more apparent in the midst of the pandemic when women have been left to suffer as a result of massive changes in family and social dynamics, disruption in peer support, and a lack of health facilities – because they have not been informed and empowered to demand what is due to them.

According to a new survey issued, over 139 million women and girls in India currently use contemporary contraception techniques. The progress made in family planning over the last eight years is detailed in a study issued by FP2020, a global collaboration that supports the reproductive rights of women and girls.

Reproductive Laws And Rights One Should Be Aware Of

In 2021, the Medical Termination of Pregnancy Amendment Act 2021 was passed with certain amendments in the MTP Act including all women being allowed to seek safe abortion services on grounds of contraceptive failure, increase in gestation limit to 24 weeks for special categories of women, and opinion of one provider required up to 20 weeks of gestation. Abortion can be performed until 24 weeks of pregnancy after the MTP Amendment Act 2021 has come in force by notification in Gazette from 24th September 2021. The government’s public national health insurance funds, Ayushman Bharat and Employees’ State Insurance cover abortion completely, with the package rate for surgical abortion set at Rs 15,500 which includes consultation, therapy, hospital stays, medication, Ultrasonography, and any follow-up treatments. The package rate for medical abortion is Rs1,500 which includes consultation and Ultrasonography. 

Despite the fact that safe abortions are a state-mandated service, only around a quarter of abortions are performed at public health institutions. The majority of public health services in rural areas do not provide safe abortion services due to a lack of resources and equipment. Despite the fact that this law allows women to get safe abortions under specific circumstances, there are still a number of obstacles to overcome.

Covid 19 Impacts On Contraception And Safe Abortion Services

During COVID-19, the Ministry of Health and Family Welfare (MoHFW) deemed contraception and safe abortion services to be essential health care. COVID-19, on the other hand, has increased the existing difficulties in obtaining these services. Abortion is a health care service that saves lives and protects the health and well-being of women and girls. Understanding how organizations have adapted their safe abortion care programmes to maintain service delivery while seeking to protect their clients, staff and communities from contracting COVID-19, is vital, Covid-19 has wreaked havoc on many aspects of our lives across the globe, reproductive health and family planning are no exception. Over the last 18 months, access to women’s health care services, including contraception, family planning and abortion, has been severely disrupted. As a result, an estimated two million women have experienced unwanted pregnancies. Furthermore, a survey conducted by the World Health Organization suggested a 68% disruption to family planning and contraceptive services across 105 countries.

Although still reeling from the effects of the sudden pandemic onset, the health system over the last year attempted to adapt to meet the growing need for effective women’s care and foster preparedness. One shining example of this was the sudden rise in the provision and adoption of online teleconsultations and digital resources. Availability and accessibility posed two critical components that needed strengthening in care delivery. With the advent of digitalization in the country, spearheaded by the government’s flagship Digital India initiative, we have advanced every day, reaching women from more remote and far-flung corners of rural India with digital platforms. Due to a decline in in-clinic consults, travel restrictions, and overburdened infrastructure and practitioners, Covid provided a significant obstacle to getting such treatment, adding to existing limits in women’s health — social stigma, misinformation, lack of understanding, and family pressures. The health system was forced to prioritize temporary contraceptives like condoms and the oral contraceptive pill above longer-term choices like intra-uterine contraceptive devices (IUCDs) and sterilization, especially during the first lockdown, which limited the basket of treatment options for women.

Conclusion

The social backdrop in India substantially influences women’s reproductive behaviour, defining the pressures, limits, and options available to them. Gender-biased norms and practices that regulate family matters severely limit women’s ability to exercise their reproductive rights. At a higher level, there are various apparent inconsistencies in how policies are made, services are offered, and how demographic trends and aspirations concerning family size and composition impact contraception and abortion demand. Despite the fact that India was one of the first countries in the world to adopt legal and regulatory frameworks ensuring access to abortion and contraception, women and girls still face major obstacles to fully exercising their reproductive rights – it is time to change that. Let us vow to support and steer reproductive rights on this Human Rights Day, not only because we want healthier women, but also because we want empowered women and girls.

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Abortion Law in India: Not Quite There Yet

by Mani Chander
written by Mani Chander

Why the amended abortion law in India restricts access and fails to grant pregnant (women, transgender and nonbinary) persons, complete control over their reproductive choices.

Mani Chander

The Medical Termination of Pregnancy (Amendment) Bill, 2020 was approved by the upper house of the parliament and received presidential assent in March, 2021. Some of the amendments brought in by the new Act were hailed by many for further liberalizing access to abortion in India. On the other hand, some leaders of the opposition had voiced concerns, demanding a detailed scrutiny of the Bill by a parliamentary standing committee. The Bill, however, was passed without any further deliberation or amendments.

One of the key amendments brought by the Act was in terms of easing the process of approval by doctors. While the earlier law required one doctor’s approval for pregnancies up to 12 weeks and two doctors’ for pregnancies between 12-20 weeks, the new law requires only a single doctor’s approval for pregnancies up to 20 weeks. The approval of two doctors is now needed only for the 20-24 timeline reserved for abortion seekers of special categories such as rape or incest survivors. The upper gestation limit for abortion in cases of foetal disability has also been removed.

The other significant change introduced by the new Act was the mandatory constitution of a medical board in every State and union territory (UT), which would decide on pregnancies beyond 24 weeks in cases of foetal abnormalities. As per the amended act, the board would have one gynaecologist, one radiologist or sonologist, one pediatrician, and other members as prescribed by the respective state or UT.

Nearly six months since the new act came into effect, several issues around the revised mandate have come up, showing that the new law, though well intended, continues to restrict reproductive rights. 

The first obvious and fundamental drawback is that our lawmakers have failed to recognize that reproduction is not just a women’s issue. Seeing only women as natural mothers is exclusionary and deeply problematic as it ignores the fact that trans and non-binary persons can also become pregnant. It reinforces harmful stereotypes around reproduction and sexuality.

Furthermore, while the establishment of medical boards in every state and UT seems like a noble idea, ground reality points to its infeasibility. A recent report based on the Ministry of Health and Family Welfare’s Rural Health Survey, which analyzed district-wise availability of medical specialists, found that there is a severe shortage of doctors. As many as 82% of these posts for surgeons, obstetricians, gynaecologists, physicians and paediatricians lie vacant. In rural India, where 66% of the country’s population resides, there is a shortage of approximately 70%. While states like Arunachal Pradesh, Meghalaya, Mizoram and Sikkim revealed a 100% shortfall of pediatricians, others such as Tamil Nadu, Arunachal Pradesh, and Gujarat have recorded near-absolute absence of certain specialists in rural areas.

Besides, even if the state governments manage to set up the necessary medical boards, access will remain a challenge, particularly for those in remote areas. It is noteworthy that the new law fails to include any provision whatsoever for ensuring logistical or financial assistance to those who need to consult a medical board. Rather than ensuring access and convenience, forcing pregnant persons to run around in search of medical boards would create further hurdles for them.

Not to mention that these medical boards have no clear mandate, leaving the scope of their functions excessively wide. Absolute discretion when considering requests for abortion allows medical boards to venture into subjective issues such as viability of the foetus and possibility of corrective surgery. 

Time and again, courts have reiterated the right of a woman to control her body and fertility. In 2016, the Bombay High Court in a suo moto public interest litigation held that “the right to autonomy and to decide what to do with one’s own bodies includes whether or not to get pregnant and stay pregnant”. It flows logically, that any encroachment of bodily autonomy would also amount to infringement of privacy, as observed in the Puttaswamy judgment of the Supreme Court.

While restrictions on the fundamental right to privacy may be imposed on account of larger interests, they ought to be “just, reasonable, and fair.” It appears, however, that the amended Act, if challenged, would fail to satisfy this constitutional mandate.

Contrary to their own precedents upholding bodily autonomy, courts have sometimes rejected petitions seeking approval for abortions. The reason is that courts ultimately rely on the decision of the medical boards, while ignoring the advice of the woman’s own gynaecologist. For instance, the Supreme Court rejected the termination of a 27-week pregnancy even though the foetus had severe physical abnormalities, because the medical board had found that there was no physical risk to the mother. The same fate was met by a 25-year-old woman whose foetus was diagnosed with Arnold Chiari syndrome, an abnormality that leads to underdeveloped brain and distorted spine.

Moreover, the process of setting up medical boards and delayed decision-making has forced women to carry their pregnancies to term. In one case, an HIV-positive rape victim from Bihar, who was denied abortion when she was 18 weeks pregnant, was forced to give birth as a result of delay. While awarding compensation to the woman, the Supreme Court remarked, that “the fundamental choice (of termination of unwanted pregnancy) which is available in law was totally curtailed and scuttled, ..the entire action has caused her immense mental torture”. In another case, after the Supreme Court allowed abortion of a 13-year-old rape survivor, she ended up giving birth two days later. Bureaucratic delays coming in the way of women’s reproductive rights can hardly be considered just. 

In yet another striking suit, the top court refused to allow an abortion for a 10-year-old girl, allegedly raped by her uncle, because the medical board was of the opinion that termination would be “too risky”. What medical boards and courts seem to be ignoring is that in most cases involving children, the pregnancy itself is discovered too late because they are unaware of their condition. Yet, they are made to pay the price for no fault of their own.

The central argument is that medical boards and doctors continue to decide and make the final call. Leaving the decision to anyone other than the woman grossly undermines her dignity and agency, particularly when those assigned the task of decision-making are not bereft of their own personal and moral beliefs. 

India is considered to have a fairly progressive abortion law when compared to other countries, yet it is regressive in more than one way. While we still have a long way to go, we mustn’t hesitate to learn lessons from the rest of the world. Texas’ recent law which effectively bans abortions is a painful reminder that hard-won rights can be stripped away all too easily. 

We cannot be complacent, for we are not free until all of us are.

_______

*Views are personal. The author is a Delhi-based practicing lawyer who holds a special interest in gender justice. She holds a Master’s degree from the University of Virginia School of Law and is admitted to the Bar Council of India as well as the New York State Bar.

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Post Roe Era, The ‘heartbeat’ Bill And Unleashing The Hounds Of The American Right

by Guest Author
written by Guest Author

By Arthita Banerjee

In the wake of the chaos unleashed by the infamous Senate 8 Bill it is important to take a look at ground zero, the fabled Roe v Wade. The broad idea held by the people is the US and the world at large is that Roe was instrumental in ‘legalising abortion’ in Texas, however the truth might be far from it. What it essentially did was determine the way states can regulate abortion.

For those not in the know, Jane Roe, was an unmarried pregnant woman who had filed a lawsuit on behalf of herself and others challenging the Texas abortion law. She was joined by her doctor who at the time claimed that the State’s abortion laws were too vague for even the medical practioners to follow. Roe argued absolute Privacy Rights for all women claiming the Texan law infringed on women’s rights to marital, familial and sexual privacy guaranteed by the Bill of rights. It also invaded an individual’s right to liberty guaranteed by the 14th amendment. The State, of course, argued that ‘fetus’ is a person protected by the 14th amendment and it is absolutely necessary for it to protect prenatal life from the time of its conception.

It might be important to understand here that the US Constitution doesn’t provide a definition of a ‘person’. It does say that the United States protection covers those who are born or naturalized in the Country. The Roe v Wade judgement went on to state that “the ‘unborn’ had never been recognized in law as persons in the whole sense”. The prevailing idea that life begins at conception draws from the Catholic faith rather than science. The medical community leans toward the belief that life begins sometime before birth. It is essentially a religious viewpoint that has stockpiled a whole lot of cultural clout.

The legendary Ruth Bader Ginsburg, said that she believed it would have been easier for the public to understand why the Constitution protected abortion rights if the matter had been framed as one of equal protection rather than privacy. During her time as a lawyer for the ACLU (American Civil Liberties Union) she fought for Struck in the matter of Struck v. Secretary of Defense.

Susan Struck, an Air Force Captain got pregnant while serving in Vietnam and sued the Air Force after it said she would have to either get an abortion at the base hospital or leave if she wanted to have the child. She told the Air Force that she didn’t want to get an abortion instead give birth and then put the baby up for adoption because abortion violated her Roman Catholic faith. Ginsburg explained her approach to the Senate Judiciary Committee stating:

“First, that the applicable Air Force regulations — if you are pregnant you are out unless you have an abortion — violated the equal protection principle, for no man was ordered out of service because he had been the partner in a conception, no man was ordered out of service because he was about to become a father.

Next, we said that the Government is impeding, without cause, a woman’s choice whether to bear or not to bear a child. Birth was Captain Struck’s personal choice, and the interference with it was a violation of her liberty, her freedom to choose, guaranteed by the due process clause.

Finally, we said the Air Force was involved in an unnecessary interference with Captain Struck’s religious belief.”

So all three strands were involved in Captain Struck’s case. The main emphasis was on her equality as a woman vis-à-vis a man who was equally responsible for the conception, and on her personal choice, which the Government said she could not have unless she gave up her career in the service.

In that case, all three strands were involved: her equality right, her right to decide for herself whether she was going to bear the child, and her religious belief. So it was never an either/or matter, one rather than the other. It was always recognition that one thing that conspicuously distinguishes women from men is that only women become pregnant; and if you subject a woman to disadvantageous treatment on the basis of her pregnant status, which was what was happening to Captain Struck, you would be denying her equal treatment under the law.

It is interesting to note that the Supreme Court revisited Roe v. Wade in 1992 when reviewing Planned Parenthood v. Casey. In that case, the Court once again established a woman’s right to choose. But, it changed the framework created in Roe. Instead of requiring states to regulate abortion based on trimester, the Court created a standard based on “fetal viability” – the fetus’s ability to survive outside the womb. Viability is usually placed at around seven months (28 weeks), but it can be as early as 24 weeks.

Coming back to the present, abortion is still legal in Texas, well only for about 2 weeks after a women misses her period which is the Senate Bill 8 driving a hard bargain because 85% of women seeking abortions are at least 6 weeks pregnant. In a bid to milk the Senate Bill, 12 other States have tried to ban abortion after six weeks, by trying to pass various scientifically unfounded ‘heartbeat’ laws. Most have been unsuccessful in their attempt because the precedent set by Roe v Wade, makes them unconstitutional.

Hope is still a radical idea for woman pregnant beyond the 6 weeks mark because the bill was framed placing the burden of enforcement entirely on private citizens, who are encouraged—to file lawsuits against anyone who performs an abortion after the six-week mark, or who “engages in conduct that aids and abets” an abortion, or who even “intends” to do such a thing. Plaintiffs do not need to know the person they file suit against, and, if they win, they are entitled, in most cases, to ten thousand dollars from the defendant and the reimbursement of their legal fees; defendants who win cases do not get their legal fees back. This bounty mechanism has made the bill immune to judicial interference, because there is no clear entity that can be sued in order to block the inhumane law.

Even pro-life Senators are thrown off by this idea of every citizen being able to tattle, sue an Uber driver to enforce the abortion law penalizing anyone who drives a woman to an abortion clinic after six weeks into a pregnancy. In response, the nation’s biggest rideshares, Uber and Lyft have announced that it is setting up a Drivers Legal Defense Fund to cover all legal fees for drivers sued under Senate Bill 8.

In a statement issued last week, Biden said he was directing the Office of the White House Counsel and his Gender Policy Council to involve the Health and Human Services Department and the Justice Department to evaluate what “legal tools we have to insulate women and providers from the impact of Texas’ bizarre scheme of outsourced enforcement to private parties.”

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Death Of Memory Machaya – Child Brides In Zimbabwe Still Awaits Justice

by Guest Author
written by Guest Author

By Dheeraj Diwakar

A fourteen-year girl died while giving birth at Church Shrine in Zimbabwe. The girl was forced to marry at an early age. After two hours of her death, she was secretly buried by Church. This incident caused a serious outrage among citizens and Human Rights fraternity all over the world. This case has highlighted the age-long practice of Child Marriage in Zimbabwe. United Nations in its statement condemned the incident and criticized the Government for not taking substantial steps to prohibit Child Marriage in practice. The silence kept by the Government of Zimbabwe raises several questions i.e., Will child-brides in Zimbabwe ever get Justice? This piece seeks to legally analyze the plight of child-brides in Zimbabwe.

Despite various International Human rights movements initiated to prohibit child marriage, the statistic of Child marriage is alarming. About 31% of girls below eighteen years of age are married, of which 4% were married before fifteen years. The age difference between bride and groom is even more concerning. According to data of 2014, about 20% of girls aged 15-19 years who are married have spouses ten or more years older. This is the main cause of gender-based violence, as about 20% of women have experienced sexual violence in their life. The mortality rate for child brides is higher than the average mortality rate. 

The country has two different sets of laws concerning marriage i.e., Customary Marriages Act and Marriage Act but neither of them sets the minimum age of marriage. On the other hand, Customary law permits polygamy. Zimbabwe’s constitution is progressive which enshrines gender equality and justiciable rights. Section 78 prescribes a minimum age limit for marriage i.e., 18 years, and condemns coerced marriage. It says, “no person shall be compelled to marry against their will”. Section 26(2) orders the State to implement measures to prohibit children from getting into matrimonial alliances. 

Constitutional Court in the landmark case of Loveness Mudzuru has outlawed the practice of Child-Marriage. Thus, child marriage is found contradictory with Constitutional provisions. Further, Article 1 of the Convention on Consent to Marriage and Registration of Marriages 1964 calls upon the nations to prohibit the marriage of girls under puberty and set the minimum age of marriage. This is reaffirmed by Article 16(2) of the Convention on the Elimination of Discrimination Against Women. Further, Article 21 of the African Charter on the Rights and Welfare of the Child states that child betrothal and marriage shall be prohibited, and “effective action” shall be taken to ensure that the minimum age for marriage is 18. The “minimum age for marriage is 18” is further reaffirmed by Article 6(b) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. 

The increasing prevalence of child marriage in Zimbabwe is contradictory with the Nation’s growth and development. Despite having numerous constitutional provisions and International Conventions, the graph of child brides is rising. Government fails to implement these legal provisions effectively. The lacunas in marriage laws are one of the biggest concerns which results into prevailing of the customary laws. The Government must take serious steps to tackle this social evil and ensure justice for all.  

Image Courtesy: BBC

Author: Dheeraj Diwakar

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Status of Frozen Embryos in In-Vitro Fertilization

by Guest Author
written by Guest Author

By Priyanshee Sharma

“Assisted Reproductive Technology” or ART with its grammatical variations and cognate expressions, means all techniques that attempt to obtain a pregnancy by handling the sperm or the oocyte outside the human body and transferring the gamete or the embryo into the reproductive system of a woman. The modern world has progressed deeper and deeper into the ART.

The growth in these ART methods in recognition of the fact that infertility as a medical condition is a problem in the overall well-being of couples and cannot be overlooked, especially in a patriarchal society like India. Infertility is a major problem as kinship and family ties are dependent on progeny.

An estimated one in seven couple in India have fertility problem, and mostly there is no known medical explanation. It is believed that 10 per cent of the general population suffers from some form of infertility. Of every 100 couples resorting to fertility clinics, 40 per cent are male infertility cases, 50 per cent are of women, and the remaining 10 per cent of both partners are infertile.

Assisted Reproductive Technologies involves a number of therapies that manipulate the egg and/or the sperm for conception in order to establish a sustainable pregnancy. All these stem from the basic In Vitro Fertilization (‘IVF’) process.

To put it simply, IVF is a process where a woman is given hormones that increase the number of eggs in her ovaries. These are then taken out via advanced medical instruments. This egg now is fertilized in a petri dish with the sperm of a donor or the father himself. To increase the chances of this conceiving a baby, a number of eggs are fertilized before putting them into the womb of the mother. This is also why it is common to have twins or triplets via IVF. For example, if a couple fertilizes some eggs and two of them are placed inside the mother’s womb, the rest can be used when the couple feels they’re ready for it.  

So, what happens to these frozen embryos if the couple decides to part ways? What happens if the woman wants to conceive via these frozen embryos and the father wants to destroy them because he doesn’t want his biological children to be born like this, thus exercising the right to reproductive privacy? Let us try and understand the stance regarding these issues globally. 

The American courts have adopted three primary conclusions in evaluating the status of frozen embryos, and the rest of the world has accepted either one of the three approaches-

 (i) Conferring full personhood on the embryo,

(ii) Considering embryos as tissues and therefore property or

(iii) Not human life fully but something more than just mere property, that is something in between the (i) and (ii). 

The case of Davis v Davis is the leading case on this jurisprudential concept. In this case, the couple got separated after using IVF for conception. The embryos were fertilized and frozen, and the implantation of them in the wife’s womb failed. After their separation, the wife wanted to donate the embryos to a childless couple, but the husband wanted to discard them. Before we discuss what the court finally ruled, it is pertinent to note what the court observed in the aforementioned three instances.

Let us suppose the embryos were granted full personhood. The first implication would be that these embryos are children, and if they are so they are entitled to maintenance, inheritance and succession rights. There are several frozen embryos in a clinic at one time, if the progenitors refuse to pay for their maintenance, the clinic would be forced to take care of them because discarding them would become murder.  {Note: There in an Act in UK, called Human Fertilization and Embryology Act 2008 that enables clinics to discard embryos after five years.}

Further, suppose after IVF and before implantation, the couple decided to part ways the wife may claim the embryos’ property rights if she decides to implant them in her womb, thus further elongating and complicating the divorce proceedings. 

Even so, the trial court in the present case took the stand that embryos were full-fledged persons. This was, obviously, later turned down by the Supreme Court of Tennessee. 

As per the second instance, the courts in the USA have ruled that the clinics and progenitors share a bailor bailee relationship while treating the embryos as essentially property. This was completely in disregard of the fact that the embryos have the potential of forming human life. 

THE BALANCE OF INTEREST APPROACH

Normally, in cases where two contradictory instances present themselves, most approaches are taken at the extreme ends treating both these instances as a trade-off. Fortunately for this case, the approach was balancing the legitimate interest of the parties. 

The Court ultimately ruled in Davis v Davis that-

“Disputes involving the disposition of pre-embryos produced by in vitro fertilization should be resolved, first, by looking to the preferences of the couple. If their wishes cannot be figured or dispute, then their prior Agreement concerning disposition should be held. If no prior agreement exists, then, the relative interests of the parties in using or in not using the pre-embryos must be weighed. Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the pre-embryos in question. If no other reasonable alternatives exist, then the argument in favour of using the pre-embryos to achieve pregnancy should be considered. However, if the party seeking control of the pre-embryos intends merely to donate them to another couple, the objecting party has the greater interest and should prevail.”

In a nutshell, the court weighed the Right to Privacy of the husband over the Right of Choice of the wife. It is interesting to note that the decision would not have been the same if the wife had wanted to implant the children in her womb instead of giving them away. The decision in such case is not the concern for the purpose of this project. This is revolutionary because a concept of “forced parenthood” is being used to delivering such decisions.

THE CONTRACTARIAN APPROACH

Embryo Disposition Agreements:

Today, it has become common to freeze embryos. Some couples do this because they are undergoing IVF and have more embryos than they require. Others face medical treatments or procedures that could result in infertility and want to preserve their chance to have natural children. At a later date the embryos can be thawed and transferred into the patient, or a surrogate’s uterus so that a child can be born.

Embryo disposition agreements are a tool to help increase the possibility that the parties’ wishes will be upheld – even if one party changes his/her mind. These contracts reduce the unnecessary prolonging of a dispute, it if arises, in court as the wishes of the parties can be easily ascertained with the help of this Agreement. It provides certainty. While it may seem rather unusual to enter into a contract with one’s romantic partner, it is a risk management tool, necessary to protect their future interests.

In the case of Kass v. Kass, the highest court of New York held that agreements among couples regarding their unused frozen embryos should be enforced unless those agreements are contrary to public policy or unless the couple’s circumstances have significantly changed.

According to the New Jersey court, when a couple disagrees with the disposition of the embryos, both parties’ interests must be balanced. While in Iowa, when the parties disagree, the status quo must be maintained until they can reach resolution or until the fertility clinic is no longer contractually bound to keep the embryos, with the expenses for maintaining the embryos to be shouldered by the party opposing their destruction. Although the courts have adopted a variety of tests to resolve such issues, thus far, they have consistently ruled in favor of the spouse who opposes use of the embryos for procreative purposes. 

THE INFORMED CONSENT APPROACH

This approach in a way overruled the contract-based approach because the courts have in some cases refused to uphold the Agreement as was reached by the parties. 

In AZ v. BZ and later in In Re Marriage of Witten, the court held that-

“Principles of contract law are inconsistent with the reasoning behind entering into the embryonic disposition agreements in the first place as they interfere with an individual’s ability to reach personal decisions related to their personal reproduction. The Agreement cannot be enforceable even if initial Agreement was unambiguous in its intent. A rather human analysis of the nature of “informed consent” given by the parties has to be made in assessing whether an agreement is enforceable or not”.

The courts have refused to enforce Agreements even if they had no legal issues with them. This is so because the issues regarding family law cannot be solved through the lens of contract enforcement. The courts will analyze whether the intent of the parties has changed due to change in circumstances and will not give straightjacket decision but prefer the present intent of the parties.  

In India, egg-freezing gained traction in 2016, when the former miss world Diana Hayden gave birth to a baby using eggs that she’d had frozen several years before.

India itself doesn’t have a law to regulate this area of reproductive health. The Assisted Reproductive Technology Bill of 2020 defined cryopreservation as the ‘freezing and storing of human gametes, zygotes and embryos’; section 52 of the Bill provided for the storage and handling of human gametes and embryos. Furthermore, to be specific, the only section that comes anywhere close to mentioning how frozen embryos have to be handled is-

“A human embryo may, for such appropriate fee as may  be prescribed, be stored for a maximum period of five years and at the end of such period such embryo shall be allowed to perish or donated to an research organisation  registered  under  this  Act  for  research purposes with the consent of the patients and if during the period  of  five  years,  one  of  the  commissioning partners dies; the surviving partner can use the embryo for herself or for her partner, provided an appropriate consent was taken earlier.”

In a nutshell, the jurisprudence around this concept is still developing but it would not be disputed to say that the time when IVF is a household name is not far. So as to prepare for that time, we must be ready so that we can better tackle the issues surrounding it. 

Presently the Union Cabinet has approved THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) BILL, 2020. The Bill lays down all the essentials required for the Contractarian Approach mentioned above but is still incomplete from Family Law’s perspective. 

  1. Whether, conception through IVF will amount to the consummation of marriage for the purpose of family law?

An answer is given in the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India 2005 that lays down that it doesn’t amount to consummation, which can become a ground for nullity. 

Further, let us suppose a wife who wants to work for the present period, freezes her ovum so that she can conceive at a later time in life, hides this information from her husband. Will this become a ground for nullity?

  1.  Whether, if a woman conceives through a sperm donor without the consent of her husband commits adultery? 

Further, while trying to answer these questions and the kind, we are still unsure as to what approach the family courts will tend to follow. 

In Prakash v. Arun Kumar Saini on 5 February 2010, the court observed that to decide whether, a child in the mother’s womb can be called as a person or not, it is important to discuss different stages of birth of a child in the womb of a mother. Technically the term ‘developing ovum’ is used for the first seven to ten days after conception, i.e. until implantation occurs. It is called an ’embryo’ from one week to the end of the second month and later, it is called ‘foetus’. It becomes a child only when it is completely born. 

The life may be considered to have entered either immediately on the date of conception, in the form of a small cell which gets multiplied later or when a mother can feel the movement of child physically, i.e. when the foetus is twenty weeks or five months old and the cell changes its structures and texture to become different parts of the body such as eyes, legs, bones, blood, head etc. Thus, when the child makes movements touching the internal walls of the womb, the actual life is considered to take its physical form by some.

Therefore, there may be a dilemma regarding the exact date of life entering the foetus, but there cannot be any confusion about embryo. If the embryo doesn’t have a life, it cannot be considered a person. 

In Bhupinder Kumar v. Angrej Singh on 28 August 2009, the court observed that reproductive choices are also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India. This position has achieved even more relevance due to the landmark judgment on Privacy, K.S. Puttaswamy v. Union of India which laid down that Privacy is a fundamental right under Article 21 of the Indian Constitution. Further, It is important to recognize that reproductive choices can be exercised to procreate and abstain from procreating. 

Though the instant judgment (Bhupinder Kumar) speaks about women’s right not to procreate, it is only natural that such a right will be extended to men if brought into question. Apart from applying to divorced couples, this may even apply in a wide interpretation of Article 21 to even sperm or ovum donors who wish their gametic materials to be destroyed or withdrawn in the backdrop of the Puttaswamy Judgment.

CONCLUSION

Thus, it is difficult to give a clear cut answer as to whether a balancing of interest approach or a contractarian approach will prevail. Since a Bill is on its way, the correct answer to this question is based on the contingency of the passing of the Bill. If it does not become an Act, then the balance of interests approach seems to be the dominating approach. 

For now, it is important for our Parliament to pass this Bill as soon as possible. This Bill represents that not being able to conceive a child is curable and the couples who cannot conceive through natural means have no reason to be ashamed of it. It has been seen that couples who have been desperate for a child resorted to desperate and in some cases, illegal measures to fill this self-created void. For example, according to an article published in The Hindu, a poor couple sold their child to a childless couple who were humiliated by their relatives. The police, of course, caught them. 

A Bill recognizing the fact that in the absence of natural conception, there are various remedies that the couple can resort to helps such childless couples from taking drastic measure. Furthermore, it might even help elaborate the taboo attached to childlessness. 

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Chhattisgarh marching ahead in promoting Girl’s Education with campaign “Har Kadam Beti Ke Sang”

by Shivangi Sharma
written by Shivangi Sharma
  • Shivangi Sharma

COVID-19 pandemic with all its challenges has hit hard on children’s education, especially girls. With persisting gender inequality and increasing poverty, upto 10 million girls are at risk of dropping out of school because of the pandemic. RTE Forum in their policy brief earlier this year notes that with 1.6 million girls aged 11 to 14 years currently out of school, the pandemic could disproportionally impact girls further by putting them at risk of early marriage, early pregnancy, poverty, trafficking and violence. In light of these concerns, Room to Read and International NGO in collaboration with Chhattisgarh government is running a campaign called “Har Kadam Beti ke Sang, Leadership ki Tarang 2021” focused to bring out powerful leadership stories of girls and their families and caregivers to demonstrate resilience and leadership, despite all the challenges that have come and may come. 

Room to Read is an International NGO that believes that world change starts with educated children and based on that belief, they collaborate with communities, organisations and governments to develop literacy skills and a habit of reading among primary school children and support girls to complete secondary school with relevant life skills to succeed in schools and beyond. In this national level campaign to improve Girl’s Education, Room to Read has designed an array of life skills materials that has been launched by School Education Minister of Chhattisgarh Dr. Premsai Tekram as a part of the Covid-19 outreach program and commitment towards girls’ education. 

“I urge girls to take a vow to study with all their heart, to never let anything stop them, and to become leaders in their communities. Let us come together to help our girls. Har Kadam Beti Ke Sang Leadership Ki Tarang”, said school education minister Dr Premsai Tekam, reported by Times of India. 

The campaign has brought to light powerful leadership stories of girls and their families who overcame all the hardships brought by Covid. As reported by Times of India, Geeta, a bright and diligent student of 10th standard, who lost her father to the coronavirus. She always aspired to be a doctor and serve the people in the best of her capacities for which she has always been participative in health related initiatives in her village. The loss that Geeta and her family bore was irreplaceable. Yet, Geeta had to toughen her shoulders to bear the responsibility of her mother and little ones in her family. With time, Geeta and her mother joined the Anganwadi workers to spread awareness about the virus. Geeta and her mother strived hard so that nobody had to bear the loss due to Covid-19. Geeta also started stitching masks and distributing them among children in her village. Besides, she now lives to study and work hard, for herself and for her father, who till his last breath cared about every student’s education as much as he cared about his own daughter’s.


Another such inspiring story is of Chitralekha hailing from a small village in Chhattisgarh. The very day that Chitralekha turned 16, her life saw a downfall from the very moment the mother uttered the words, “marriage”. A myriad of obnoxious feelings took over, her dreams, her aspirations; all of them came crumbling down to nothing. Chitralekha stood tall and with the support of her brother and the R2R India team ensured that the marriage was called off and she continued to pursue her education. This campaign intends to reach out to all vulnerable girls like Chitralekha.

The state-wide campaign is targeted at 15,881 girls residing in 179 government girls’ residential institutions including Kasturba Gandhi Balika Vidyalaya, Ashram Shalas and Porta Cabins in all the 28 districts under Project Vijayi. Project Vijayi was started by Room to Read in year 2018 with partnership of Education Department and Tribal Welfare Department of State of Chhattisgarh which is a life skill program. In this Project, one Warden and one Teacher from residential institutions got trained and they deliver quality Life Skill Sessions with girls from grade six to eight. In addition, 2,504 girls from 13 non-residential government schools in two districts Raipur and Dhamtari will get benefitted from various online reading materials, circulars, take care cards and e-magazines. The campaign intends to negate the impact of Covid-19 pandemic that has severely impacted the education system across India especially the lives of young adolescent girls beyond their education too. It intends to empower the girls with education and life skills to help them lead a better life without the fear of being married off or making them vulnerable to poverty.

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No Entry for Men – Umoja Uaso: Kenya’s Women-Only Village

by Srinivas Rayappa
written by Srinivas Rayappa

Srinivas Rayappa

The Samburu are a Nilotic people of north-central Kenya. Samburu are semi-nomadic pastoralists who herd mainly cattle but also keep sheep, goats and camels. Rooted deeply in patriarchy, the Samburu people are semi-nomadic, largely polygamist and closely related to the Maasai tribe. Women in the tribe have been living under a harsh patriarchal system for as long as they can remember. For generations, female genital mutilation is one of the most important rituals among the Samburu tribe. Once circumcised the girl can be given away in arranged marriage to a man who is old enough to be her grandfather. The Samburu tribe has a tradition of repressing women and treating women as second class citizens. Women are not allowed to own land or other types of property, such as livestock and are considered property of their husbands.

In accordance to their culture, the father chooses an older “warrior” male with which the daughter will enter into a temporary marriage. Pregnancy is forbidden, but contraceptives are unavailable. If the child becomes pregnant, she is forced into an abortion, conducted by other women in the village. Since the girl is married at an early age, she cannot be a competent parent. While giving birth they face a lot of challenges: they rupture, they bleed, because they are young and don’t have access to healthcare facilities.

Even performing their duties and chores, is very hard for them. They are often left to take care of animals.

Some of the harrowing experiences endured by the women in the tribe include the story of a 11 year old girl who was traded for cows by her father. Her husband was 57 years old. Another young lady has five children, all with different fathers. Girls are married off to men, the age of their grandfathers. Women have little or no say in matters pertaining to the Samburu community. At village meetings men sit in an inner circle to discuss important village issues, while the women sit on the outside, only occasionally allowed to express an opinion.

If the repression and harrassment meted out to women in the Sambaru community by local men were not enough, during the 1980’s there was an “epidemic of rape” on Sambaru women by British troops on exercise in central Kenya. Since, 500-600 women from the Samburu tribe in Kenya have fought for decades to prove that they were raped by British soldiers who, under an arrangement with the Kenyan government, train regularly in the nearby countryside. Those impregnated by their rapists and who gave birth to children that are of a lighter colour than native children have been shunned, abandoned by husbands and families and forced to leave their villages. On August 14th 2003, a hundred Masai women trekked to the British High Commission in Nairobi, to lodge a complaint that they had been raped by British soldiers. Another 800 women, mostly from the Masai tribe or their Samburu cousins, have made similar claims. The matter is being investigated by Britain’s Ministry of Defence at snail’s pace. More incidents of sexual assault are coming to light with the most recent being 30 women from the Samburu tribe alleging that they were raped by Gurkhas based at Archers Post in 1997.

Distraught at being subjugated to domestic violence, child marriage, female genital mutilation and rape from men, both within and outside the community, a group of 15 brave women under the able leadership of Rebecca Lolosoli, took matters into their own hands and setout to start their own village, devoid of men. Thus, in 1990, was born Umoja Uaso (“unity” in Swahili, the Uaso Nyiro is a nearby river), an all female matriarch village located near the town of Archers Post in Samburu County, 380 km (240 mi) from the capital, Nairobi. Umoja Uaso is one of the world’s first “All-Women” communities where men are not allowed to reside nor are they allowed to dictate their views or opinions on matters pertaining to the community.

What started as a sanctuary for 15 women, who survived sexual assault and rape by British soldiers, has today grown to give shelter, livelihood and a future to any and all women trying to escape harrassment, repression and rape.

Rebecca Lolosoli, who started this movement recollects, “As a woman you have no right. If the husband wants to kill you, he has the right to kill you anytime because women are like a property. Men wanted to destroy our village but we resisted. We are not going to move an inch even if it means they kills us. Let them kill us all and make history of killing all the women in the village.”

Rebecca is the matriarch of Umoja women’s village and an advocate for women’s rights. Growing up as a member of the Samburu tribe she was married off at the age of 18. Deeply moved by the suffering of women all around her, she began speaking up about helping women who were victims of rape by British soldiers. Angered by her vocalism, the men in her neighborhood beat her up till she was hospitalized. To make things worse, her husband did not protest when she was being beaten and hence she left him. Along with her other victims of violence, she established the women-only village of Umoja Uaso. Umoja which was once a safe heaven for women has now become a globally known example of a successful matriarchy.

Even to this day, the men in the Samburu tribe consider Rebecca as a threat because they firmly believe that she is ruining the age old culture and tradition. She has faced repeated threats and attacks from local men since she set up the “women-only” village, but she remains undeterred.

What began as a refuge for survivors of sexual violence and torture, Umoja has grown to provide a safe habitat and nutures 47 women and 200 children. One would imagine that these communities would only have older women, but there are plenty of young women as well, who left their homes because they did not wish to be subjugated to torture from their husbands.

Although the inhabitants live extremely frugally, these enterprising women earn a regular income that provides food, clothing and shelter for all. Village leaders run a campsite, a kilometre away by the river, where groups of safari tourists stay. Many of these tourists, and others passing through nearby nature reserves, also visit Umoja. The women charge a modest entrance fee and hope that, once in the village, the visitors will buy jewellery made by the women in the craft centre.

Intimidated by their self-sustenance model, the insecure men from neighboring villages began beating the women and snatching away their hard earned money. The men felt threatened with the gaining independence of women. Since, Umoja has now been barricaded by thorns and women stand guard all night to protect their community. Over the years, women have grown in strength and are enjoying their freedom. There are no bells and whistles to their lifestyle but the women and children earn a regular income to take care of their basic needs.

The women of the village have been taught how to construct their own houses where they can live peacefully. With the hand crafted jewellery that they make and sell by the roadside, they have attained financial independence. With their savings, they have now started a school for the children in the village because they now understand the importance of education. Rebecca firmls believes that the children should not be handicapped because of lack of knowledge and that they should see light in their life by having good education and have an understanding of what’s going on in this world. As if setting an example, Rebecca’s daughter now studies in Germany. The self-sufficiency and freedom has inculcated a ray of hope among the distraught women which has inspired them to give a better future for their children.

Rebecca_Lolosoli_2.jpg

On occasions, men are allowed to meet the women of the community. However, who comes in and who goes out is dictated by Rebecca. The rules of the village are crafted solely by the women. The young girls are allowed to meet their boyfriends but outside the village. When they get pregnant, their children can live in the village but the male must leave the village once they are eighteen years of age. All decisions are collectively made by the women of the community under the “tree of speech”, a place where they gather for discussions on issues plaguing their community.

The internet has put Umoja firmly on the global map and now people travel far and wide to come and see how the land of “no-men” thrives in the region of Samburu. Rebecca has been able to interact with powerful women across the globe and is now friends with the former First Lady of the United States, Hillary Clinton. Thanks to Rebecca’s every growing international clout, the elaborate beaded jewellery produced by the women of Umoja has found a worldwide marketplace. Also, Umoja Uaso has turned into a tourist destination visited by people across the globe.

Inspired by the success of Umoja Uaso, several all-feamle societies have cropped up across Kenya. While some villages forbid men completely, others allow men to be part of the community but it is the women who have an overriding say in all matters pertaining to their community.

Gender inequality is the blemish of the 21st century, a remnant of the past that the tide of time should have long washed away. It’s easier for girls in urban places to fight for equal rights but for a tribal women like Rebecca Lolosoli to raise her voice in a patriarchal society and highlight that misogyny is not normal, is indeed a rare achievement and ofcourse commendable.

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