In this chapter, we discuss moral problems which have become prominent in recent times. They can be traced to two main sources: changes in social attitudes or mindsets towards human sexuality; and repercussions of advances in genetics and molecular biology. New problems that follow in the wake of these changes have important moral and legal dimensions. Another area we discuss is terrorism. We cover the doctrines, ideologies and worldviews influencing current thinking on terrorism, human rights and state integrity. We have outlined the Indian laws bearing on all these problems. Many problems covered in this chapter (and similar others) are discussed in US textbooks under the rubric ‘applied ethics’ because ethical theories and principles are used to analyse such problems.
HOMOSEXUALITY
Introduction
Human beings feel a natural sexual attraction for members of their opposite sex. This is commonly taken as a universal norm. But some men (called homosexual or gay) are sexually attracted towards other men. Similarly, some women (known as lesbians) are sexually attracted not to men but to women.
Religious and social customs have generally condemned homosexuality. For example, the Bible enjoins upon men and women, “Be fruitful and multiply”. Obviously, no conception results from homosexuality, unlike in heterosexuality-union between persons of opposite sexes. The Bible denounces homosexuality as ‘an abomination’. Hinduism and other religions regard marriage and procreation as essential stages of human life.
Although homosexuality was known from early human history, it carried strong social stigma. Many societies, consider it a crime. Homosexuals used to inhabit a dark, shadowy world. In earlier times, if homosexuality of an individual became known, he was publicly denounced. Oscar Wilde, a famous literary figure, was imprisoned for his homosexual. Others such as E.M. Forester and Andre Gide had to hide their homosexuality. In western society, homosexuality is no longer a taboo. To a great extent, prejudices against homosexuals, lesbians, bisexuals and transgender (neither male nor female) are waning. Many states in USA allow same sex marriages.
In spite of such changing attitudes, homosexuals still face many problems. In India, homosexuality is a crime, though prosecutions of homosexuals are negligible. Many groups who consider themselves as liberal, secular, progressive and modern, advocate decriminalization of homosexuality. In this context, animated debates are held on the morality of homosexuality. In what follows, we discuss (i) the arguments in favour of and against homosexuality, (ii) its position under Indian law, and (iii) a possible stance towards it.
Arguments Against Homosexuality
Homosexuality is unnatural and perverse. It violates the natural mode of propagation of human species. Therefore, homosexuality is against the laws of nature; it militates against the morals of Nature.
Homosexuality is against divine commands. Even if we question the divine origin of moral commands, homosexuality still violates moral principles which most religions uphold. Marriage between sexes and rearing of children within families are important institutions. They not only regulate sexual behaviour but also ensure rearing of children in congenial and moral home environment. Homosexuality will destroy these anchors of stable social life.
Homosexuality sets a bad example for children by undermining conventional family and cultural values. If homosexual behaviour is instilled in children, and if it becomes widespread, humanity will not survive. Even if this fear may seem farfetched, there are real dangers of homosexuals assaulting children.
Many people believe that homosexual practices have led to rapid spread of HIV and AIDs. Homosexuals are officially recognised as high risk groups in spreading HIV and AIDs. Hence, homosexuality is not merely a private but also a public health risk.
We all live in societies which are predominantly heterosexual. To be honest, most people react to homosexuality with revulsion and distaste. Homosexuality is confined to a miniscule minority. There is no warrant to treat it as a main stream phenomenon.
On these grounds, it is argued that homosexuality should be prohibited in order to protect children and families, cultural and moral values and in order to ensure human survival.
Arguments in Favour of Homosexuality
Homosexuality is neither unnatural nor immoral. It is how some persons are sexually endowed by nature. It should not be considered as aberrant or deviant behaviour. Psychologists are not agreed on whether homosexuality is abnormal or normal in some circumstances. American Psychological Association has removed homosexuality from its list of mental diseases.
Just because a society is predominantly heterosexual, homosexuals cannot be labelled as immoral. No such conclusion can be validly drawn. No divine commands can be actually proved for there can never be any empirical evidence for them. They are matters of religious faith. They may be accepted by believers of a particular religion, but do not bind followers of other religions or agnostics or atheists.
It is true that prudent rules of behaviour or of husbanding resources can be drawn from Nature. But they carry no compelling force of logical demonstration. Further, it is impermissible to derive
moral principles from facts of nature. This is known as the error of trying to draw moral conclusions from factual premises or values from facts.
Homosexuality is practised between consenting adults who are supposed to know what is good for them. As long as such behaviour does not harm others, no objections can be made against it. The spread of HIV and AIDS through homosexual contacts was due to ignorance of the homosexuals about risks of such contacts. Thereafter, homosexuals have adopted protective practices and have greatly reduced risk of spreading HIV and Aids. They acted far more responsibly than drug addicts in this regard.
Acceptance of homosexuality does not imply condoning sexual assaults on children. In fact, most child sex predators are heterosexuals. This is a matter of moral depravity which is unconnected with homosexuality.
Homosexuality is not a threat to family values. Many gay and lesbian couples in USA are adopting children. They are raising them in healthy home environment. Many US States have legalized such marriages.
Homosexuals are human beings, and part of our moral community. The fact that their sexual orientation or behaviour differs from that of others should be no bar to their right of humane treatment.
Homosexuality in the Indian Penal Code
Section 377 of the Indian Penal Code (IPC) makes homosexualsex punishable with life imprisonment. In September 2006, Amartya Sen, Vikram Seth and others demanded ‘In the name of humanity and of our Constitution, abolition of this cruel and discriminatory law’. The Law commission recommended retention of Section 377 in its 42nd and 156th report, but recommended its repeal in its 172nd report. The then health minister (2009) favoured abolition of Section 377. But the Home ministry opined that the abolition would increase criminal incidents of sodomy or offences involving sexual abuse of boys.
The United Nations urged India to decriminalise homosexuality. It would strengthen anti-HIV/ AIDS drive by extending its benefits to homosexuals. As homosexuality is criminal, homosexuals cannot be given essential HIV, health and social services.
In December 2002, Naz Foundation filed a Public Interest Litigation in the Delhi High Court challenging Section 377. On July 2, 2009, the High Court of Delhi struck most of Section 377 as being unconstitutional. On December 11, 2013, in an appeal filed by Suresh Kumar Koushal and others, the Supreme Court upheld the constitutionality of Section 377 of the IPC. Supreme Court however declared that Section 377, to the extent it criminalises consensual sexual acts of adults in private, violates Articles 21, 14 and 15 of the Constitution. But it upheld the provisions of Section 377 covering non-consensual homosexuality and homosexual acts involving minors. Supreme Court also suggested that Parliament should suitably amend Section 377.
This judgment upholding Section 377 was met with support from religious leaders. However, some religious leaders like Sri Sri Ravihsnaker opined that consensual sex between adults should
be tolerated. Private members bills for decriminalising homosexuality were defeated in parliament. In August 2016, Cabinet approved the draft law on ban of commercial surrogacy (discussed later). The bill denied homosexuals from having surrogate children. Ms Sushma Swaraj said in this context: “We do not recognise live-in and homosexual relationships….this is against ourethos”.
On February 2, 2016, the Supreme Court agreed to reconsider its 2013 judgment; it said it would refer petitions to scrap Section 377 to a five-member constitutional bench.
ABORTION
A Cursory Review of Reproductive Biology
This background will help in understanding the debates not only on abortion but also on embryonic stem cell research.
Conception or fertilization takes place when a female germ cell or ovum is penetrated by a male germ cell or spermatozoon. The result is a single cell containing a full genetic code of forty-six chromosomes known as zygote. In ordinary course, in 2-3 days the zygote moves down the fallopian tube which carries ova (plural of ovum) from the ovary to the uterus. After reaching the uterus, the multi cell zygote floats in the fluid inside uterus, and develops into a blastocyst. The blastocysts are microscopic balls of undifferentiated cells. At the end of the second week, the blastocyst gets attached to the uterine wall. From the end of the second week until the end of the eighth week, the unborn entity) is called embryo (or as conceptus). During the period from 4th to 5th weeks, organ systems start developing, and embryo shows the outlines of external human form.
In the 8th week, brain activity becomes detectable. From this stage, the conceptus is known as foetus though in common language the term is used from the beginning of inception. Two other terms are important in designating the development of foetus. One is ‘quickening’ which refers to the point when the mother is able to feel the movements of the foetus. The second term is viability which designates the point at which the foetus is able to survive independently outside uterus.
The main stages of pregnancy and their time lines are shown in the following table.
Stage | Time |
Zygote | 1-3 days |
Blastocyst | From 2nd day to end of 2nd week |
Embryo | 3rd week to 8th |
Foetus | 9th week until birth |
Quickening | 13th to 20th week |
Viability | From 24th week |
Abortion refers to the termination of the unborn entity (or termination of pregnancy) at any of the above stages. Abortions at times occur due to internal biochemical processes of the pregnant woman or due to injuries suffered by her. These are known as miscarriages and create no moral issues. Debates on abortion centre on induced abortions which are brought about by human action.
A brief outline on medical procedures for abortion will help in understanding why it creates a sense of unease in some circumstances.
In very early stages, abortion can be induced by ‘morning-after-pill’. It prevents the blastocyst from attaching to the uterine wall.
Vacuum aspiration is used for abortion until the 12th week (first trimester). In this method, the narrow opening of uterus, cervix, is dilated; a small vacuum tube is inserted in uterus; and its contents are removed through suction.
Dilation and extraction (D&E) procedure is commonly used for abortion after the 12th week of pregnancy. In D&E also, the cervix is dilated; but doctors have to use surgical instruments, instead of a suction tube to empty the uterus. Until the 15th week of pregnancy, the tissues of foetus can be easily broken; and a spoon-shaped instrument (curette) is used to scrape uterus walls in order to ensure that no foetal issue remains. Thereafter, the foetus becomes too large to pass through cervix; the bones harden and are difficult to break. Evacuation requires that foetus be dismembered after it is partially pulled through cervix. A little later, the procedure becomes more cumbersome with need to collapse the skull.
Before D&E became popular, abortions were induced by saline injection i.e. introducing salt water into uterus. This went out of use because it is unsafe for mothers.
Another method of abortion is mifepristone or RU-486, the abortion pill. This works by blocking the action of progesterone which is a steroid hormone needed to maintain pregnancy. Incidentally, this pill cannot be used after the 7th week following the woman’s previous menstrual period.
Moral issues surrounding abortion
For long time in history, women hardly had a safe medical option for ending an unwanted pregnancy. But with the discovery of safe abortion procedures, it became possible for women to decide whether or not to terminate an unwanted pregnancy. Many countries have legalized abortion, and created clinics for abortion. Abortion debate has therefore lost some its earlier intensity. However, anti- abortionists (described as prolife) still attempt through laws and court cases to restrict the rights of women for abortion. And pro-abortionist groups (known as prochoice) attempt to remove all restrictions on abortion and to provide full public funding for it.
Abortion debates involve two broad issues: (i) the value of life, both of mother and foetus; and
(ii) individual freedom and rights of women over their bodies. These debates also cover the rights of foetus or unborn baby, definitions of human life and the point at which life begins.
(1) The genetic make-up of a human being is constituted as soon as the chromosomes of male sperm and female ova are united. Once this union is established, it leads to creation of a unique individual. Therefore, the conceptus has full human status.
(2) Every unborn, innocent child has full human rights from the time of conception. Its life is as sacrosanct as that of any other human being. Its right to life is absolute i.e. it overrides the rights of the pregnant woman.
(3) Respect for human life in its every state and stage is a cardinal principle. Once disregard is shown to early human life, it will in principle get extended to human life in general. The value and worth of human life will get degraded. This can lead to ruthless and cruel measures as the experience of Nazi Germany shows.
(4) Abortion procedures are hazardous for a woman’s physical and psychological health. As we noted earlier, abortion procedure after the 12th week can harm a woman’s reproductive system. It makes women vulnerable to future miscarriages. Some women may feel that abortion involves killing a ‘would-be-baby’. Abortion may create feelings of guilt in a woman’s mind and create psychological stress.
(5) Nowadays, many simple contraceptives are available for preventing pregnancy. An unwanted pregnancy often results from a woman’s carelessness or irresponsibility. Once pregnancy occurs, parents should accept their responsibility, and should not victimize innocent life.
(6) There are alternatives for abortion. Many childless couples are willing to adopt babies. They would happily welcome the unwanted babies into their homes. Further, many public institutions are available for housing unwanted babies. These two alternatives are open to poor parents who cannot afford to have another child.
(7) Most religions oppose abortion in all its forms. Since most people have religious beliefs, they may not like abortion. Parents, who feel compelled by economic circumstances to resort to abortion, may experience cognitive dissonance.
Arguments in favour of abortion
(1) Women have absolute rights over their bodies, including procreative rights. If they become pregnant accidentally, they can undergo abortion. It is just another method of birth control which can be used if others fail. Conceptus, in this view, is another part of a woman’s body until it is born. She has absolute right to decide whether or not to continue pregnancy. Further, pregnant woman alone should be allowed to decide whether or not to undergo abortion.
(2) Strict abortion laws arose from a patriarchal mindset. Since men never experience the troubles and travails of pregnancy, they can afford to show phony feelings of reverence for unborn life. Unwanted pregnancies can completely disrupt a woman’s plans and dreams for her future. She can therefore decide whether or not to have an abortion.
(3) Foetus is not a ‘person’ and hence not a being to whom human rights apply. Here, we have to distinguish biological or genetic concept of humanity from psychological or moral concept of humanity. The idea that whoever is conceived by human beings becomes human immediately upon conception is untenable. It is quite a while before a conceptus even acquires a semblance of human form. In very early stages, it has no brain architecture, and hence no sensations or feelings.
(4) The concept of psychological humanity or personhood involves the following traits:
♤ Consciousness of external world and the capacity to feel pain
♤ Reasoning ability
♤ Self-motivated activity independent of genetic or external control
♤ Capacity to communicate
♤ Presence of self-concept and self-awareness
None of these traits constituting psychological or moral humanity is found in conceptus. Hence, it has no quality of humanity.
(5) If abortions are prohibited or severely restricted, women rely on illegal and dangerous ‘back alley abortions’. Further, poor women, who can ill afford high end abortion facilities, bear the brunt of the risks and hazards of illegal abortions.
(6) Any serious birth defects or dangerous medical conditions in foetus can be usually detected after 9th week of pregnancy. In this situation, abortion is the only way to prevent birth of a human being condemned by nature to debilitating or dangerous hereditary diseases.
(7) Neither handing over new born babies for adoption nor placing them in public charitable orphanages is an attractive alternative. To argue that a woman should carry her pregnancy to term for these purposes is unconvincing. First, they cause much greater stress to a woman than early stage abortion. Secondly, public homes for orphans lack personal and humane touch and are inhospitable locales for growing children. Adoption has its own problems with chances of foster parents losing interest in their adopted children.
(8) In some situations, abortion is virtually the only way out: pregnancy resulting from rape; pregnancy which endangers a mother’s life; and incurable birth defects in a foetus.
(9) In modern times, abortion is very safe, and unlikely to cause any mental traumas especially in early stages of pregnancy. It is one of the methods included in programmes for Planned Parenthood.
We may concludethat couples should followpreventivemethods toavoidunwanted pregnancies. If abortion becomes necessary, it should be undertaken in early pregnancy. Well off couples should accept accidental pregnancies.
Before 1971
Under the Indian Penal Code, induced abortion was illegal. Both abortion practitioners and the woman undergoing were liable to prison and/or a fine. The only exception was when abortion was induced in order to save the life of the woman. Widespread incidence of illegal abortions, and the view that abortion could be a means of birth control led government to reconsider the law.
Post 1971 situation
Abortion in India is now covered under the Medical Termination of Pregnancy (MTP) Act 1971. According to MTP Act, Pregnancies not exceeding 12 weeks may be terminated based on a single doctor’s opinion formed in good faith. In case of pregnancies exceeding 12 weeks but less than 20 weeks, termination needs opinion of two doctors. Abortion is legal only up to twenty weeks of pregnancy.
The MTP Act specifies the persons qualified to conduct the abortion and the places where abortions can be done. It permits abortions in the following circumstances:
♤ When physical and/or mental health of the woman are endangered by the pregnancy
♤ When pregnancy is likely to result into the birth of a potentially handicapped or malformed child
♤ Pregnancy resulting from rape
♤ Pregnancy in unmarried girls under the age of eighteen with the consent of a guardian
♤ Pregnancy in ‘lunatics’ with the consent of a guardian
♤ Pregnancy due to failure insterilization
An adult woman requires no other person’s consent except her own. Recently, Supreme Court permitted a rape survivor to terminate her pregnancy at 24 weeks, which is beyond the permissible 20 weeks limit under the MTP Act.
Indian couples have a strong preference for a male child. This led to misuse of the provisions of MTP Act for conducting abortions of female foetuses. Subsequently, new technologies such as sonography made sex detection easier, and increased sex-selective abortions. To control these abortions, the Pre-natal Diagnostic Techniques (PNDT) Act, was passed in 1994.
PNDT Act
The PNDT Act provides for the following:
♤ Prohibition of sex selection, before and after conception
♤ Regulation of prenatal diagnostic techniques (e.g., amniocentesis and ultrasonography) for the detection of genetic abnormalities, by restricting their use to registered institutions
♤ Use of these techniques only at a registered place, for a specified purpose, and by a qualified person registered for the purpose
♤ Prevention of misuse of such techniques for sex selection, before or after conception
♤ Prohibition of advertisements of any techniques used for sex selection and for sex determination
♤ Prohibition on sale of ultrasound machines to persons not registered under the Act
♤ Violations of the Act are cognizable, non-bailable and non-compoundable and carry stiff prison terms and fines.