Before 1971, the practice of abortion was criminalised in India under Section 312 of the Indian Penal Code, 1860. Despite the Medical Termination of Pregnancy Act, 1971, being a welcome change, it has thus far fallen short of recognising the bodily autonomy of the uterus-owning individual. Abortion under the MTP Act, 1971, is only permissible under select conditions and this has led to widespread criticism of the Act. In the wake of these concerns, the Medical Termination of Pregnancy (Amendment) Bill, 2020, was introduced in the Parliament to make some significant alterations in the pre-existing MTP framework.
According to the Press Information Bureau, the MTP Bill, 2020, is for expanding access of womxn to safe and legal abortion services. By addressing failures of the previous legislation, the Bill manages to expand its scope. Nevertheless, it fails to achieve what was expected of it because the decision of the Medical Board is still penultimate in whether the termination stands approved or not.
There are several op-eds, policy analyses and articles on the internet discussing pertinent problems that this Bill presents. However, almost all of them are gender-blind in their analysis.
Abortion is a practice that affects anyone with a uterus – and not just females. The provisions of both the Act and the Bill concerns only “pregnant women”, thus excluding trans persons by language of omission. Gender does not determine the possibility of pregnancy and both the language of the Bill as well as its analyses fail to go beyond the binary. The presumption that all persons affected by this legislation are females reflects the deep-rooted societal biases about gender, womanhood and motherhood.
This presents a larger problem about inclusivity in the language of public policy. Policymaking in India does not take into consideration the lack of intersectionality in its language, thus effectively pushing marginalised identities further to the fringes. Language is a reflection of reality and when legal systems, social structures and institutions are constructed by cisgender, heterosexual people, the question of inclusivity in language becomes difficult to answer.
Exclusionary language is normalised when it comes to public policy, and while it is not openly transphobic or vitriolic, it translates into marginalised identities being restricted from accessing resources and social welfare schemes. When it comes to healthcare, not only are providers and workers in the industry biased and misinformed, medical institutions are ill-equipped to treat trans bodies. Even though the 2014 NALSA judgment acknowledges the existence of a “third gender”, little has changed on the ground for trans persons for whom access to affordable medical care is still an arduous process.
The present condition of policymaking in India is bleak. The only way to subvert these heteronormative structures is by encouraging and supporting LGBTQI+ youth in spaces that have historically denied them entry.