ABORTION is the termination of pregnancy by any method before the foetus (less than 20 weeks of pregnancy) is sufficiently developed to survive independently. Generally, abortion is classified into two categories - spontaneous, and induced. Available records reveal that approximately 46 million abortions happen every year globally, at the rate of 126,000 abortions per day. 78 per cent of all abortions are done in developing countries, while 22 per cent occur in developed countries. While 64.4 per cent of all abortions are performed on unmarried women, married women account for 18.4 per cent of all abortions.
The status of abortion laws in most countries is unclear. The most restrictive laws allow abortion to be performed to save the life of the woman and to preserve her physical health; the most liberal law (like Western Australia) allows abortion on request. In the Criminal Law of the Marshall Islands and the Federated States of Micronesia, there are no abortion provisions. It is possible that local customary law governs abortion in both of these countries. In India, the Medical Termination of Pregnancy (MTP) Act was enacted by the Indian Parliament in 1971, and it came into force from April 1, 1972 (it was later revised in 1975). Abortions are a major cause of maternal morbidity and mortality in India. Because most of the abortions are not reported, and sex selective abortions are being carried out secretly, the statistics of abortions in India are of varying reliability. The available statistics are grossly inadequate, as hospitals keep records of only legal and reported abortions.
Every year, an average of about 11 million abortions take place, and around 20,000 women die every year due to abortion related complications. Most abortion related maternal deaths are attributable to illegal abortions.
The laws of India do not permit abortion. The Medical Termination of Pregnancy Act, 1971 (MTP) Act, which prohibits abortion, was enacted with a view towards containing the size of the family. However, in some cases the desire for a small family may have outweighed the desire for a child of a specific gender, leading to abortions where the sex of the fetus was different from that desired by the family. The MTP Act stipulated that an abortion may lawfully be done in qualified circumstances. But the unscrupulous connived to misuse the law to have abortions conducted for the purpose of sex selection.
Later, innovative technologies made sex selection easier, and without the regulations to control the use of such technologies, these technologies began to be misused for sex-selective abortions. These actions necessitated enactment of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT) in 1994. This act was amended in 2002 in an effort to close loopholes contained in the original act.
Medical Termination of Pregnancy (MTP) Act
Under the Indian Penal Code, causing an abortion, even if caused by the pregnant woman herself, is a criminal offense, unless it is done to save the life of the woman. The offense is punishable by imprisonment for a period of three years, by fine, or by both.[
The MTP Act provides for an abortion to be performed by a registered medical practitioner in a government hospital provided, in his opinion;
• continuance of the pregnancy, (which at the time must not exceed twelve weeks and);
• involves a risk to the life of the woman or a grave injury to her physical or mental health; or,
• there is a substantial risk that the child, when born, would suffer such physical or mental abnormalities as to be seriously handicapped.
Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994
The PNDT Act of 1994, later amended in 2002, was enacted with the objective as stated in the preamble ;
…to provide for the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female feticide and for matters connected therewith or incidental thereto.
Thus, the PNDT Act prohibits the use of all technologies for the purpose of sex selection, which would also include the new chromosome separation techniques.
The PNDT Act primarily 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. The Act allows the use of these techniques only at a registered place, for a specified purpose, and by a qualified person who is registered for the purpose.
• Prevention of the misuse of such techniques for sex selection, before or after conception.
• Prohibition of the advertisement of any techniques used for sex selection as well as those used for sex determination.
• Prohibition on the sale of ultrasound machines to persons not registered under this Act.
• Punishment for violations of the Act. Violations carry a five-year jail term and a fine of approximately US $200-$1,000. All offenses are cognizable when police may arrest without a warrant. They are also non-bailable and non-compoundable.
Indian laws do not, under any circumstance, allow sex determination tests to be undertaken with the intent to terminate the life of a fetus developing in the mother’s womb, unless there are other absolute indications for termination of the pregnancy as specified in the MTP Act of 1971. Any act causing the termination of the pregnancy of a normal fetus would amount to feticide, and in addition to rendering the physician criminal liable, is considered professional misconduct on his part, leading to his penal erasure.
For more information on India see:
• Global Legal Monitor: India
• Guide to Law Online: India
Information collected from the article of Krishan S. Nehra, Senior Foreign Law Specialist
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