Purvi Patel, the 33-year-old woman of Indian origin in the U.S. who had been >sentenced to 20 years in prison on the counts of foeticide and neglect of dependent, has finally been released from Indiana State Prison after serving a term of a little over a year. Despite her conviction being overturned, the presence and reach of several foetal protection laws expose the vulnerable status of pregnant women in the U.S. The events leading up to Ms. Patel’s arrest, conviction, and release throw light on the invasive nature of these laws.
Ms. Patel checked into a hospital in July 2013 with severe bleeding and abdominal cramps. She confessed to the hospital staff that she had attempted a self-abortion. Upon the discovery of an abandoned foetus in a dumpster near her workplace, Ms. Patel was arrested and convicted. In July this year, the Court of Appeals of Indiana overturned her 20-year conviction for foeticide and convicted her for a lesser charge after finding that foeticide laws were not intended to prosecute women for illegal abortions.
Shruthi Ramakrishnan Reproductive justice Reproductive rights and abortion have been long-contested issues in the U.S. In a landmark decision, Roe v. Wade (1973), the Supreme Court of the United States legalised abortion and affirmed the decisional privacy of women. While the judgment continues to be celebrated as a triumph of personal liberty and bodily autonomy against the police state, reproductive justice as a whole remains illusory in the face of several foetal protection laws that invade the most intimate spheres of women’s lives. Such laws have been passed in at least 38 states in the country and through them pregnancy remains within the state eye. Though these statutes were originally intended to punish any physical attack on pregnant women, they have, in practice, manifested into laws that seek to criminalise and/or discipline the conduct of pregnant women. By recognising full personhood of unborn children, the rights of foetuses are often pitted against the rights of pregnant women. These laws further legitimise extensive surveillance and policing of women’s conduct before and during pregnancy. Due to the creation of these rival interests in a single body, pregnant women now find themselves as potential criminals for declining bed rest, refusing to opt for a C-section, or even for expressing second thoughts on having the child.
A disturbing feature of these laws is that they operate through medical personnel who are brought in as interpreters and enforcers of the law. With hospital staff and physicians constantly monitoring pregnant women and acting as state informants, the confidential nature of the doctor-patient relationship has been completely distorted.
For instance, in 2013, a 12-week pregnant woman in Wisconsin confided in her doctor regarding her previous drug use. Upon the complaint of her doctor, she was handcuffed, forcibly examined in an emergency room, detained in prison and taken to court in leg shackles. In another case in 2010, a pregnant woman sought medical consultation after falling down a flight of stairs. During the consultation she confessed to the attending nurse that she was having second thoughts about her pregnancy after being deserted by her husband. What should have been a predictable doctor’s visit resulted in her being imprisoned under the attempt to commit foeticide.
While foetal protection is no doubt an important concern for a state, policing pregnant women through medical personnel only makes women more cautious about seeking medical care, which may have adverse effects on the health of a foetus. With hospitals acting as agents of the state, pregnant women, particularly those with a history of substance abuse, may be forced to withhold important information from their health-care providers or even opt out of pre-natal care in order to escape criminal prosecutions.
Disparities in targets Like most criminal laws, foetal protection laws also show large class- and race-based disparity in their targets. Women belonging to lower socio-economic backgrounds, minorities, and immigrants are overwhelmingly more vulnerable to the effect of these laws. Apart from the demographic disparity in their targets, these laws are also instruments for societies to impose their subjective conceptions of inappropriate maternal behaviour on women. Although a number of factors impact on foetal health, only a few socially proscribed acts find themselves in the line of fire of these laws. Factors such as age, use of assisted reproductive technologies, and history of genetic disorders, which also have an impact of foetal health, are not affected by these laws.
The criminalisation of behaviour during pregnancy and government interference in the doctor-patient relationship reconfigures the status and extent of reproductive liberty in the U.S. Further, these laws have the effect of impairing the bodily integrity and decisional autonomy of women — the core values sought to be protected by the Supreme Court when it legalised abortion. Reproductive justice is not limited to the question of abortion but extends to the privacy of women throughout the remainder of their pregnancy.
Ms. Patel’s ordeal forces India to have a hard look at its own laws. It is immediately apparent that India’s abortion laws, particularly the Medical Termination of Pregnancy Act, 1971, is couched in a deeply patriarchal language. Although the Act permits abortions, it nowhere accounts for women’s autonomy over decisions that affect their lives. More disturbingly, the Indian Penal Code too houses an archaic provision that criminalises women who cause themselves to miscarry. This, of course, does not necessarily mean that the state should remain free of this sphere. Foetal and maternal health are important state interests, and welfare steps taken by the government may prove to be much more beneficial in realising the state goals than invoking the criminal justice system.
Shruthi Ramakrishnan is an advocate & independent legal researcher. She may be contacted at shruthiramakrishnan0@gmail.com
