SEX SELECTION AND MEDICAL TERMINATION OF PREGANCY
The biologically normal sex ratio at birth ranges from 102 to 106 males per 100 females. However, ratios higher than normal – sometimes as high as 130 – have been observed. This is now causing increasing concern in some South Asian, East Asian and Central Asian countries. The tradition of patrilineal inheritance in many societies coupled with a reliance on boys to provide economic support, to ensure security in old age and to perform death rites are part of a set of social norms that place greater value on sons than daughters. In addition, a general trend towards declining family size, occasionally fostered by stringent policies restricting the number of children people are allowed to have, is reinforcing a deeply rooted preference for male offspring. As a result, women are often under immense family and societal pressure to produce sons. Failure to do so may lead to consequences that include violence, rejection by the marital family or even death. Women may have to continue becoming pregnant until a boy is born, thus putting their health and their life at risk. Sex selection can take place before a pregnancy is established, during pregnancy through prenatal sex detection and selective abortion, or following birth through infanticide or child neglect. Sex selection is sometimes used for family balancing purposes but far more typically occurs because of a systematic preference for boys. Although the relatively recent availability of technologies for the early determination of sex has provided an additional method for sex selection, this is not the root cause of the problem. States have an obligation under human rights laws to respect, protect and fulfil the human rights of girls and women. In addition, more than 180 States are signatories to the 1994 Programme of Action of the International Conference on Population and Development (ICPD). As part of this undertaking States agreed to:
. . . eliminate all forms of discrimination against the girl child and the root causes of son preference, which result in harmful and unethical practices regarding female infanticide and prenatal sex selection. United Nations (1994); paragraph 4.16
Preventing gender-biased sex selection: an interagency statement
However renewed and concerted efforts are now needed by governments and civil society, including efforts to address the deeply rooted gender discrimination against women and girls which lies at the heart of sex selection.
First, there is an urgent need for more-reliable data on both the real magnitude of the problem, on its social and health consequences, and on the impact of interventions. Such data is needed to provide a sound evidence base for carefully planned and coordinated policy development and action.
Second, guidelines on the ethical use of the relevant technologies should be developed and promoted through health professional associations.
Third, supportive measures for girls and women should be put in place, including measures to ensure improved access to information, health care services, nutrition and education; measures to improve their security; and measures such as the provision of incentives to families with daughters only.
Fourth, States should develop and promote enabling legislation and policy frameworks to address the root causes of the inequalities that drive sex selection. Policies will be needed in areas such as inheritance laws, dowries, and financial and other social protection in old age, while also ensuring that laws and policies reflect a commitment to human rights and gender equality.
Finally, States should support advocacy and awareness-raising activities that stimulate discussion and debate within social networks, and more broadly within civil society, in order to strengthen and expand consensus around the concept of the equal value of girls and boys.
LAW REGULATING ABORTIONS IN INDIA
Abortion in India is regulated by the Medical Termination of Pregnancy Act, 1971. The MTP act was legislated to counter the problem of illegal and unsafe abortions in India and the resulting maternal mortality. The Act, with its Rules and Regulations, provides the legal and medical framework for the circumstances in which women can terminate their pregnancy in certified facilities by registered physicians. The following sections are based on guidelines for comprehensive abortion care published by the Government of India (MoHFW, GoI, 2010).
THE 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.
A pregnancy caused by rape is presumed to constitute a grave injury to the mental health of the pregnant woman. The Act also allows an abortion to be performed when the pregnancy occurs due to the failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children. Where the pregnancy is more than twelve weeks but less than twenty weeks, the opinion regarding the medical necessity for an abortion in the above circumstances must be formed in good faith by two medical practitioners. When the pregnancy is less than 12 weeks, the opinion of one medical practitioner is necessary for the approval of an abortion. All abortions must be performed in a government hospital, regardless of the length of the pregnancy.
Who can legally provide abortions?
The MTP Act of 1971 (amended in 2002) states that abortions can be provided by a medical practitioner who possesses a recognized medical qualification as per the Indian Medical Council Act, 1956, (102 of 1956), whose name has been entered in a State Medical Register and who has experience or training in Gynaecology and Obstetrics as prescribed by rules made under the MTP Act. For performing first trimester abortions, the MTP Rules 2003 allow any registered medical practitioner who has received special training in MTP and performed 25 cases in a training institute approved by the government. Second trimester abortions on the other hand, can only be performed by persons with a PG diploma or degree in Obstetrics and Gynaecology, in addition to the above requirements.
The Pre-natal Diagnostic Techniques Act PNDT Act
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.
With the blanket prohibition contained in sections 3, 4 and 5 of the PNDT Act, there is effectively a ban on sex selection in India. It is not possible to use pre-natal diagnostic techniques to abort foetuses whose sex and family history indicate a high risk for certain sex-linked diseases, or to choose a foetus whose sex is less susceptible to certain sex-linked diseases. This blanket prohibition may appear to be a contradiction to the provisions of the MTP Act, which permits the abortion of a foetus that is at a risk of being born with serious physical or mental disabilities. While it is legally permissible to abort a foetus at risk of serious physical or mental disabilities, it is not permissible to select a foetus of a sex which is less likely to suffer from a sex-linked disease.
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.
Under what conditions can a woman seek abortion as per the law?
The MTP Act 1971 with its amendments in 2002 allows an unwanted pregnancy to be terminated by a registered medical practitioner under the following conditions:
- The continuation of the pregnancy involves risk to the life of the pregnant woman or of grave injury to her physical or mental health.
- There is substantial risk of that if the child were born s/he would suffer from physical or mental abnormalities as to be seriously handicapped.
- Rape or incest – Failure of any contraceptive device or method used by a married woman or her husband for the purpose of limiting the number of children.
WHY DO WOMEN SEEK ABORTIONS?
i. Women are often coerced to have sex both within and outside marriage. They have little to no voice in taking decisions about when to have or not have sex. This could lead to an unwanted pregnancy, causing them to seek an abortion.
ii. Women may not be able to negotiate the use of contraception with their partner. Even when contraception is available, it may not be fool proof and women may have risks associated with it. (Viscaria, et al, 2003) Lack of awareness and access to contraception is even more acute among unmarried women. (Jeejeebhoy, et al, 2009)
iii. Women are forced to bear the burden of responsibility for contraception and childbearing as well as rearing of children. Female sterilization is the most commonly used form of contraception but it is often resorted to only after the desired number of children are born. This leaves women at risk of unwanted pregnancy prior to sterilization making them turn to abortion as a method of contraception. (Viscaria, et al 2003).
iv. Medical issues relating to the health of the woman or a threat to her life caused by serious complications during pregnancy, as well as deformities or life-threatening conditions of the foetus are among the reasons why women seek abortion.
v. Even though women bear the risk of childbearing alone, they hardly ever have exclusive or any right over the children who are born.
vi. Thus, access to abortion acts as a substitute for the rights denied to women otherwise by society such as the right to have or not have sex, right to ask a partner to use birth control or to look after the child.
Hence, women must have access to abortion without restriction. The voices of women below highlight the above issues which push women to seek abortion.
My husband is a drunkard and does not bring home any money. He just loves to sleep with me. After I conceived, he ignores me or physically abuses me. He will pretend to be concentrating on some work. When the child is born he will deny paternity to the child by saying that he is not the ‘real’ father of the child. Since I have experienced all this twice, I decided to go for an abortion. There is no other way I could have handled the situation. In any case when children are born, I have to provide them with food while he goes around disclaiming his fatherhood. 35-year-old married woman, Tamil Nadu Anandhi 2007 Women, work and abortion: A case study from Tamil Nadu EPW March 24: 1054-1059 When I express reluctance for sex saying that I am worried about getting pregnant, he says, “I will take care of if it happens.” If I object strongly, he shouts: “Are you sleeping with someone else?” After my first childbirth, he called me for sex within a month. When I objected, he beat me. This is a regular happening in my life. Younger woman, ever-user of abortion, Tamil Nadu He alone is responsible for the abortion, because first he prevented me from having the operation and then be beat me when I was reluctant to have sex. So again, it led to an unwanted pregnancy and abortion. Older woman, ever-user of abortion, Tamil Nadu Ravindran & Balasubramanian 2004 “Yes” to abortion but “No” to sexual rights: The paradoxical reality of married women in rural Tamil Nadu, India RHM 12 (23): 88-99 “If I’m a widow, then abortion can help me save face. Within marriage you have the choice to keep it or drop [abort] it” “It should be available at least in difficult moments. The law shouldn’t make things difficult…” “When husbands refuse [women] sterilisations, it is good to have abortion as a right for women.” “Even if she marries the same boy, she should first drop the thing. Her in-laws might start wondering about the child’s paternity.” Gupte et al. 1997 Abortion needs of women in India: A case study of rural Maharashtra RHM 5(9): 77-86.
WHAT IS THE STATUS OF ABORTION PROVISION IN INDIA?
The MTP Act envisages institutions in the public health sector as potential sites for provision of abortion. This is to ensure that abortion which is a basic and important procedure remains affordable, safe and accessible. In practice however, majority of abortions conducted in the country do not happen in the public health sector. The Abortion Assessment Project – a study conducted in 2003, across six states in India, estimated that there are 6.4 million abortions that occur in the country annually. Of these, 1.6 million or approximately one fourth are provided by traditional, non-medical providers often employing unsafe and invasive methods. Of the remaining, only a third were provided by the public sector. The private health sector is therefore the largest provider of abortions in the country. It is important to bear in mind however, that accessing abortions in the private sector is expensive – the cost is almost 7 times that of the public sector, thus making access difficult for a large section of the population. Yet it is the private sector that is being sought more than the public health sector by abortion seekers. The Abortion Assessment Project finds that women report better quality of services in the private sector and they feel their confidentiality is better maintained there (Bart Johnston, 2002). Paradoxically, women have also reported high cost of services in the public sector – even though abortion is supposed to be available free of cost in the public sector – as a factor for preferring the private sector. (Barge, et al, 1997 in Bart-Johnston, 2002).
Author: SAMEER AFZAL ANSARI,
GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY , THIRD YEAR , SIXTH SEMESTER , BACHELORS OF ARTS AND BACHELORS OF LEGISLATIVE LAWS