Why are certain foetuses aborted over others?
Are disabled and intersex foetuses seen as more disposable than others?
Should abortion of disabled foetuses be allowed on the grounds of the right to live with dignity?
There has been considerable debate surrounding abortion rights over the last 65-70 years. But one critical question – the umbrella that encompasses all the above – remains unanswered.
How prenatal testing and selective abortion plays into eugenics, and whether allowing for abortions beyond the standard stipulated period on grounds of 'foetal' anomaly should be allowed.
The answer to this is not as simple as a prescription passed around in doctor's office. It does not come from the speech an abortion rights activist at an international conference.
“I have spent a lot of time wondering whether my parents would have gone ahead and had an abortion if they had known in advance that I would end up having cerebral palsy. However, I am also grateful for the life I was able to build because of a lot of the support that they and others in my life like my teachers and friends were able to offer."Candice D’Souza, 26, a Mumbai-based therapist, told me
Like she said, this is not a quest to prove who's right or wrong, ableist or not ableist, pro-life or pro-choice. This article is certainly not a destination, nor is it a definite fact.
But what remains a fact is that critical analysis surrounding non-normative foetuses that don’t fit a cis-hetero, patriarchal, able-bodied framework is needed.
What Our Law Says...Or Does Not Say
The Medical Termination Of Pregnancy (MTP) Act, 1971 aims to make abortion legal under specific contexts. A recent amendment to this act, the MTP (Amendment) Act 2021 claims to expand the access to safe, legal, and hygienic services to ensure access to comprehensive care. However, this act is often misconstrued as a liberal step.
Under several occasions the MTP Act has been interpreted as imposing "reasonable restrictions" on those seeking to terminate their pregnancies – if the pregnancy was caused by rape, or if the foetus has abnormalities that will cause life-long trauma to the child and parent if born.
However, the MTP does not clearly define which disabilities are included or excluded under the MTP Act. Thus, the uncomfortable silence between abortion and disability rights remains in a country like India.
For example, in 2021, the Uttar Pradesh government issued a bill called the Draft Uttar Pradesh (UP) Population Control, Stabilization and Welfare Bill, 2021. The National Platform for the Rights of Disabled (NRPD) published a statement responding to the bill saying, “Sec. 15 of the Bill includes a terribly pejorative almost eugenic rationale where the Bill says that if couples have one or two children who “suffer” (term used in the Bill) from disability, they can have more children and will not be seen to contravene the two-child norm.”
Prominent Disability Rights Activist, Shampa Sengupta, in Feminism in India, pointed that the language used in the statement is 'incredibly ableist.'
Firstly, it strategically terms disability as a suffering, and then equates disability to death by presenting the ‘’Of Death Or Disability’’ clause which prefers non-disabled children over disabled children, equating disability to death. This summarises the crux of how our law sees disability.
Selective Abortion of Foetal Anomalies
There is already an inherent tension in the world of prenatal genetic testing – between facilitating reproductive choice and preventing the birth of disabled children. Prenatal diagnosis supporters argue that it gives a woman the freedom to choose whether or not to have a disabled child.
Critics of prenatal diagnosis, on the other hand, argue that the process is eugenic in nature, and that terminating a pregnancy for a child deemed 'defective’ is morally problematic.
"There could be pressure on mothers from society, caste based population control, in-laws and pressure to abort the foetus as disability is seen as a burden through an eugenic lens and also the charity model. So we might need to look at it as a structural issue and not an individual one perhaps, in the same way that sex selective abortion often occurs due to patriarchal pressure.’’Semanti Chalakdar, a 22-year-old student from TISS
However, it has been argued that the provision of prenatal genetic testing is inherently biased. Though screening and diagnostic techniques have advanced significantly, treatments for the majority of diagnosed conditions have not, leaving the parent with a potentially distressing decision: the only viable 'treatment' option for a foetus found to have a genetic abnormality has remained pregnancy termination.
"This is a real moral question. There are so many things to consider. I feel as a parent that a child with very high support needs or profound disability can be extremely life altering for parents in a way they are completely unprepared for, caregiver of a child with multiple disabilities.
“However, in the case of Down’s syndrome where it is possible to medically test the fetus in the womb- it might border on eugenics, as children with down syndrome can live functional lives," she added.
An Individual Choice, But Also Beyond That
Anita Ghai, Professor and Academic, Ambedkar University Delhi, revealed an uncomfortable truth that if one had the power to choose a child, they would not choose children with disabilities.
In addition, she says that any child can develop abnormalities but the kind of discrimination, stigma, and dehumanisation attached to a foetus with abnormalities forces the parents to abort them.
We live in a country full of herbal recipes to "cure curved disabled bodies and remove the curse" which supposedly made us disabled in the first place.
Folks pregnant with defects in the foetus are blamed by their in-laws for "passing the disability onto the child".
The ableism implied as devaluation and dehumanization of the disabled fetus cannot be ignored, and neither can the blurry line between eugenics and life with dignity be taken lightly. A system of trust, affirmation and reproductive justice has to be built which considers diverse perspectives and stakeholders, and upholds the autonomy and self determination of the person who seeks to continue or terminate the pregnancy. Access is the magical word here.
‘’There is the facet that children with disability also deserve to live and have a shot at a meaningful life and future. Because there are also people with disabilities who have grown older and made meaningful careers, relationships, and if nothing else, in the traditional definition of productivity, they are able to bring so much joy to the people in their life and may contribute in so many beautiful ways to making this world a better place," says Sushma, a caregiver with disability.
(Nu is a disability justice author, a masters student at TISS Mumbai and founder of Revival Disability India, a collective for and by disabled queer folks. They are taking up space in the world one limp at a time.)