History bears witness to the fact that, unlike abortion rights, the rights of people with disabilities have always been on the periphery of ongoing socio-political discourse. While the subject of abortion has regularly come under strict political, religious and social scrutiny, the disability rights movement (hereafter referred to as DRM) is relatively new to the arena of social movements. global so extensive. What makes the case of DRM and abortion rights even more precarious today is the intersection of their conflicting individual interests and beliefs. Thus, while the secular feminist movement supports abortion rights for reasons of reproductive justice and women’s legitimate autonomy over their bodies, the DRM condemns the former for having often neglected the disability bias in the implementation selective abortion laws.
Selective abortions or what Smitha Nizar calls “social abortions” are widespread practices of allowing abortions solely on the basis of undesirable characteristics such as gender, disease, disability, etc. , cultures and jurisdictions. The debate on selective abortion which puts the fundamental ethical precepts of fundamental equality, the dignity of all human beings and the contested rights to choose or to life against one another, has been a place of moral dilemma. for feminists and disability rights advocates and a powerful source of enigma for the rule of law.
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Whether it is the emergence of baby doe in the United States of America or the enactment of the Pre-Conceptual and Prenatal Diagnosis Techniques Act 1994 (hereafter referred to as PNDT) in India, the bewildering lack of discussion of disability in national and international forums reflects societal ambiguity and ambivalence around the cardinal issue of disability. More than the deficit, it is the misinterpretation of the discourse on disability that has become a sensitive point and a common controversy both among feminist groups and activists for the rights of people with disabilities.
Selective abortions and socio-medical construction of disability
“The absence of an ability is not necessarily bad, the opposite of having an ability is not having it, having it and not having it can be just as legitimate ways of living a life. . “
From ancient texts by Manu to contemporary laws of selective abortions, disability has always been interpreted as a marker of deviation and human limitation. Perpetually interpreted as an undesirable trait, disability has been presented as synonym of disease. Socially, he embodies what Erving Goffman calls “spoiled identity” or what Mary Douglas calls “pollution”.
The dominant narrative, also known as the “medical model” of disability, characterizes people with disabilities as inferior and incapable, unworthy and unworthy of human life. The medical model defines disability as an economically heavy suffering and affliction that has significant socio-cultural repercussions and costs. It is on the basis of this mistaken but widespread understanding of a disabled body and disability that the rhetoric of the medical model justifies and defends the use of prenatal and preconception techniques that further facilitate the greater evil of selective abortions. of disability.
Although abortion and prenatal techniques are not contested per se, it is argued that their use against disabled fetuses is morally, ethically and legally inappropriate. Unlike other countries, abortion, as a social and political affair, has never been under siege in India. As argued Kavana ramaswamy, the right to abortion in India was more the product of paternalism than of feminist right.
Thus, the philosophical imports of the viability of life and of the “pro-life versus pro-choice” dialectic have never been as controversial as they still are today in the United States and other countries. Westerners. Laws such as the Medical Termination of Pregnancy Act 1971 (hereafter referred to as the TPM Act) were more aimed at curbing the threat of a growing Indian population than at ensuring reproductive justice and human rights. women.
However, it can be argued that India’s abortion law was ahead of its time in 1971 and still holds equivalent, if not more, legal and social acceptance. What now poses a challenge to the unblemished reign of abortion laws in India is the advent of the disability rights movement and its advocacy against the medical perception of disability that has historically positioned disability as a popular, justified and legitimate reason for selective abortions.
Contesting the medical model of disability through the social model, the DRM opposes the practices of selective abortion under article 3 of the MTP law of 1971 and article 4 of the PDNT law of 1994 for their aptitude and their discrimination. Although such selective abortion laws are relatively recent, it is argued that what has sparked the full range of disputes over abortion, and therefore over selective abortion, is the transfer of childbirth from home to home. medical institutions in the form of hospitals and maternities.
In other words, what prompted the regimen of prenatal diagnosis and fetal examination is the medicalization of human birth. By posing childbirth as a medical act, medical institutions in cahoots with the state have extended their reach into the private domain of human life and monopolized what has always been a natural and organic act. It is also affirmed that in addition to the aforementioned medical model of disability, it is also the medical view of pregnancy and human reproduction that has problematized the problem posed.
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As with disability, by viewing pregnancy as a socially deviant condition, medical surveillance has been instituted as a human necessity and obstetricians and other health professionals have been identified as the primary decision-makers for women’s bodies and fetuses. Consequently, the ever-growing political, social and cultural authority of physicians has led to scrutiny of the mother and fetal body, which arguably played a divisive role in redefining human reproduction in general and abortions in particular. Since the epistemic community of health professionals determined and transformed certain categories of people into patients and certain behaviors as disease, they were able to objectively choose which human being was going to be born and which was not, which is reflected now in laws and policies too. Therefore, with the concomitant state, law and society at large, what the institution of medical science and its human agents continue to do is in itself a euphemism for eugenics.
Smitha Nizar, ‘The Contradiction in Disability Law: Selective Abortion and Rights‘(Oxford University Press, 2016) 16.
Adrienne Asch, “Equality for people with disabilities and prenatal screening: contradictory or compatible? 2003 30 (2) Florida State University Law Review 34.
John Muller, “Disability, Ambivalence and the Law” (2011) 37 Am JL & ED 469.
Erving Goffman, ‘Stigma: Notes on Handling Identity Theft » (Harvard University Press, 1963).
Mary Douglas, ‘Pollution’ 1968 12 International Encyclopedia of the Social Sciences (Macmillan) 336.
Anita Ghai and Rachana Johri, “Prenatal diagnosis: where to draw the line? 2008 15 (2) Indian Journal of Gender Studies 291.
Kavana Ramaswamy, “Addressing Abortion: Lessons from the Problems of Female Feticides in India” (2017) 27 Transnational Law and Contemporary Problems 1.
Aneesha Bedi and Apoorva Mandhani, “The Indian Abortion Law – Ahead of Its Time in 1971 but Now Behind the Science, the Demands of Society”: ThePrint
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