The editorial in The Hans India on 25th May, ‘Abortion still a raging issue in US’, wonderfully highlighted a relevant topic where politics, society, law, medicine, ethics, morals, religions, and human rights make for a complex cocktail of raging emotions, disparate voices, and fights of all kinds. Rights and wrongs are difficult to decide, of course, like in many debates. A consensus statement is unlikely anytime soon. Essentially, the debate is regarding a contradiction between the two fundamental properties of a liberal life: the freedom to choose and the right to live.
The so-called right wing (pro-life or no right to abort) and the so-called left wing (pro-choice or right to abort) take hard stances across a clear dividing line. Religious denomination also comes into fray. Catholics do not support abortion categorically. Protestant Churches have a variable stand on the issue ranging from opposition to complete support. Compromise seems hardly possible as offense comes easily with any stance. This indeed is a serious issue in the West, especially the US.
The famous Roe v. Wade case changed American law on abortion. The legal guidelines for terminating a pregnancy was a pragmatic view and not on any moral, ethical, or religious ideas. The right to live (for the fetus) is the consideration in the later part of pregnancy and the freedom to choose (for the mother) in the early part. The US courts do not address the slippery slopes when each of the arguments goes to the extreme and demands either the freedom to choose or the right to live in all stages of pregnancy.
The US Supreme Court does not consider in the abortion debate on whether human life or personhood begins at conception, birth, or at some point in between. The 24 weeks guideline is on the ‘survivability’ of the fetus outside the womb and specifically, the lung maturity to take breaths. Scientist Carl Sagan (Abortion: Is It Possible to be Both “Pro-Life” and “Pro-Choice”?) proposes for 24 weeks but for different reasons. He considers the research pointing out that at 24 weeks the fetal brain starts showing well-formed brain waves typical of a human being and that might declare the transition of a fetus to a ‘human’.
Carl Sagan puts two questions here. First, why should breathing only justify legal protection? If one shows that a fetus can think and feel but not be able to breathe, would it be all right to kill it? Second, with improving technology, a fetus might survive much earlier gestational ages. If available in a possible future, does it then become immoral to abort earlier than the sixth month, when previously it was moral? Sagan says, ‘a morality that depends on, and changes with, technology is a fragile morality; for some, it is also an unacceptable morality.’
The Indian MTP act, formulated in 1971, made the legal limit to 20 weeks purely on the consideration that after this age, terminations can be unsafe for the mother. The discrepancy in the Indian rules arises from three considerations. First, termination is now safe even at later stages of pregnancy but the rule has seen an extreme resistance for updating based solely on this ‘safety to the mother’ criteria. Second, many fetal anomalies, some serious and difficult, in the Indian scenario have a diagnosis between 20 to 24 weeks with the application of the latest in the field of antenatal testing including genetic analysis. This puts a severe stress on both the doctors and the affected families when there is potential confrontation with the law. Third, the conflation of the MTP Act (for safe and legal abortions) and the PC&PNDT Act (to prevent gender based selective abortions) has many implications on access to safe abortion services for women.
Nitin Sridhar (Abortion, A Dharmic Perspective) using extensive ancient Indic sources (Dharmashastras) shows how ancient Indians set the limit for legal abortion at 16 weeks but with a different reasoning. Taking the notions of the individual Jiva, Karma, Dharma, Adharma, and Prayashchitta into consideration, Dharmic texts perceive abortion as Adharma since, it prevents a Jiva from taking a physical birth, an entitlement based on Prarabdha Karma. The Dharmic texts enunciate that though the Jiva associates with the fetus at conception, it enters the Hrdaya of the fetus only towards the fourth month of pregnancy. Thus, only the abortion performed after the 16 weeks of pregnancy is like killing a person, while abortion before 16 weeks is preventing Jiva from self-identifying with the fetus. Abortion after 16 weeks involved legal punishments and abortion before 16 weeks involved a Prayashchitta (a voluntary imposition for repentance) procedure for 12 years. However, the texts clearly say that after 16 weeks termination is acceptable without Adharma only if the purpose is to save the mother’s life.
Can we evolve a sustaining contemporary narrative and law on abortion based on the eternal principles enunciated in the Dharmic texts? The texts are not morally obligatory or legally binding as the colonials drilled into our collective minds. Intellectuals can always make better laws based on our Dharmic philosophy conducive to all but have we travelled too far on a ship of modernity which looks at tradition with only disdain?
RANDOM MUSINGS 