Is a woman obliged to carry to term a baby that is the “nishani” of the father?

[First published in Women’s Web]

A retired official, and advocate at the High Court recently narrated a story of the widow of a Kargil martyr who was pregnant at the time of his death. From a purely practical standpoint, her parents advised her to have an abortion, but her in-laws wanted her to have the child since that was the “nishani” of their son. When the lady insisted she didn’t want to have the child, her in-laws went to the District Collector who, purely on humanitarian grounds, ordered the woman to stay with her in-laws, carry the child to full term and hand it over to the grandparents to bring up. Though the person posting this story was deliberate vague on whether it was a recent case or an old one, she by specifying that there was nothing in the rules to permit it, admitted that the decision of the District Collector was purely arbitrary. She used it to argue that decisions around pregnancy should not be left to the mother alone, because issues like ‘inter-personal emotions, traditions and responsibilities’ also come into play.

Looking at the case purely from the facts that were shared by the person, there are several aspects that are extremely disturbing.

The choice of the woman is not mentioned anywhere in the narrative- it only talks of her parents advising her to abort the child, and her in-laws demanding that she bear the child. This is, unfortunately, the reality in India. A woman has very little agency in deciding what she wants for herself. She is caught in the expectations of various people, many of whom do not even have a stake in her well being, which severely restricts her ability to think dispassionately for herself. In most conflict situations, the woman’s opinion is not even considered- different people face off among themselves to determine which of them gets to decide her action. This is the reason why women try to seek a powerful ally within the external family if they want to do anything that they think the family may not approve of.

In this case, the parents of the woman have a more pragmatic approach. Given that this is her first child, one assumes the woman is not very old, and perhaps not even equipped to have a professional career. Like it or not, remarriage is the most sensible option for her, and remarriage will be much easier if the woman is not burdened with a child. Even if the woman is not thinking of remarriage right away, it is extremely hard to be a single parent, and this may not be the appropriate time where she can take a decision on whether or not to have the child. Anyone who has the best interest of the woman at heart will remind her of the practical considerations, and request her to keep that in mind while taking a decision.

The in-laws, on the other hand are acting in a purely emotional way. Having lost a child, they want to substitute him with a grandchild. In stating that they will bring up the child themselves, they have clearly not thought the issue through. At their age, are they physically and emotionally ready to bring up a baby single handedly? Will they expect the mother of the child to breast-feed the baby for six months, or will they be able to make alternate arrangements? Who will look after the child after they are no more? Is it fair to expect a grandchild to look after their grandparents like they would a parent?

There are other issues too, which pertain to the well being of the baby. Should a baby be brought into the world with the weight of other people’s expectations on them? How will a child feel knowing that they are not an individual by a “nishani” of their dead father- that people do not necessarily care for them, except as a reminder of someone else who has passed on? When the child asks about their mother, what will the grandparents tell them- would a child really want to know that their mother wanted to abort them, and that she abandoned them soon after giving birth?

There is a possibility, however low, that the mother will bond with the child and not be able to give the child up. What if she chooses to bring up the child on her own, and denies the grandparents access to the child? Is that a possibility that anyone has even considered?

The biggest question is the one that everyone avoids- the grandparents are presuming the child will be male. What if the child is female? Will they still consider the child a “nishani” of their martyred son? Or will the grandparents put the child up for adoption after having forced the mother to give birth?

Lastly, why should the District Collector be involved in something that is purely a personal matter? No laws were broken, nor were any evoked. The District Collector should have sent the in-laws away by saying that this was outside their ambit of responsibilities. Not only did the District Collector not do that, they chose to issues directions that impinge on the rights of the pregnant woman and could be easily challenged in court.

As if illegally coercing a woman to not abort a foetus was not bad enough, the District Collector has compounded the injustice by forcing the woman to stay with her in-laws till she delivers the baby. The logic behind this would have been to ensure that the woman wouldn’t quietly have an abortion and then declare it was a miscarriage. However, now the woman has been forced to live in a hostile environment for several months. The woman who is silently grieving the loss of a husband will not only have to bear the emotional fluctuations of a pregnancy she doesn’t want, she will have to do it in a house where her only identity will be that of a receptacle of her dead husband’s “nishani”. It is extremely likely that during the period of her pregnancy she will virtually be under house arrest and may not even be allowed to visit her parents or have them stay with her for emotional support. We also do not know how long after delivery the house arrest will last- will she be compelled to stay till the baby is weaned off?

What is even more disturbing is the fact that so many people are hailing this story, and using it as an example to prove that in case of medical termination of pregnancy, the woman should not have the right to decide.

People are taking it for granted that as a pregnant widow”, it is the moral obligation of the woman to give birth to the “nishani” of the “shaheed”. Without irony, the woman sharing the story says, “This decision, of course, was under no Rules and purely on humane emotions. Humanity and society is not a mechanical thing. It runs on. Our Hon. Supreme Court needs to understand that “my body my choice” is OK till it does not intervene with others’ rights.”

However, what “rights” are people talking about? The parents of the martyred soldier need grief counselling to help them get over the loss of their only son. A grandchild cannot, and should not, be a substitute for a dead child. Even if it temporarily numbs the pain of losing a child, it is not fair on the grandchild to bring them up with such expectations.

If anything, stories like this underline exactly why abortion laws should give the mother and only the mother the choice to decide whether to carry the child to term or not. While people may argue that the father of the child also has a say in whether or not to abort the child, in a healthy relationship, any decision taken by the mother will be one that is discussed by both partners. If the parents are not aligned, the only person who has the right to decide is the mother, since she is the one who will go through pregnancy, childbirth, and carry the larger burden of child rearing.

“My body, my choice” is not a western, feminist import as people claim it is. In the often repeated tale from the Mahabharata, Ganga agreed to marry King Shantanu on condition he will never question her. The story of her multiple pregnancies and child-births is the most powerful example of the agency that a woman enjoyed in the time of the epics.

The recent Supreme Court verdicts that reiterate the body autonomy that women enjoy is a welcome step. And stories like this only underline why it is important to tighten the laws so nobody can compel a woman to do something she doesn’t want to.

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Natasha Ramarathnam

Mother | Education | Youth empowerment | Gender rights | Civic Action | Book slut | At home everywhere | Dances in the rain | Do it anyway | Surprised by Joy