The Impossibility of `Justice': Female Foeticide and Feminist Discourse on Abortion

Abstract

This study considers the relationship of feminism with the language of rights and the law and argues that the reason why the law fails to be just is not because of sexist interpretations forwarded by biased functionaries. Instead, there is a fundamental contradiction between the law, which creates uniform categories from a multiplicity of identities and meanings, and rights, which are constituted by particular discourses and are not universal. After further examining criticisms of the discourse of human rights, the idea that rights are morally sanctioned, and the identification of abortion as a "right" in the US, the study turns to the issue of abortion within the feminist and legal discourse in India where the 1971 Medical Termination of Pregnancy Act allows abortion as a population control measure rather than as a right and is not buttressed by safe and available abortion services. The feminist campaign against sex determination tests and selective abortion of female fetuses is then discussed, and the loopholes in the legislation in Maharashtra to curtail sex determination are described as inevitable in light of current government population policies which create political contradictions. Philosophical dilemmas also arise when abortion is considered a right which women who select to abort female fetuses must be denied. The limits to and precarious nature of the right to abortion in India are shown to be circumscribed by medical discretion and balanced on patriarchal assumptions. Thus, women of the South see abortion as one more way in which husbands who refuse to use contraception control the reproductive autonomy of their wives and in which governments achieve population goals. The discussion ends with a consideration of law and justice which notes that the law has as great a potential to subvert as to realize the feminist vision.

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