Are Liberal
Abortion Laws Responsible For Female Foeticide?
By Pavan Nair
05 October, 2005
Countercurrents.org
When
the state whether by default or intent encourages the use of abortion
as a method to restrict the number of children in a family, then the
law can be misused to have children of the preferred gender. This is
exactly what has happened in India. The tragedy is that the people who
matter have not recognized this. There is an impression amongst social
workers, doctors and even lawyers that abortion is to be made available
on demand. Nothing could be further from the truth. The intention of
the lawmakers was quite different. The Medical Termination Of Pregnancy
Act 1971, applies only to 'certain' pregnancies as stated in the preamble
which require to be medically terminated. In other words only to those
pregnancies where medical reasons for termination exist and hence the
name 'Medical Termination of Pregnancy Act'. Unfortunately the child
sex ratio of the country is now skewed due to an explanation in the
Act which need not have been there in the first place. This clause which
can be interpreted by default to permit abortion due to the failure
of contraception is an exceptional clause and one of its kind in all
abortion laws across the world. It is worth reproducing the operative
parts of the Act and the Explanation (Explanation 2 of Section 3 the
Act).
THE MEDICAL TERMINATION
OF PREGNANCY ACT, 1971
(Act No. 34 of 1971)
(10th August 1971)
An Act to provide
for the termination of certain pregnancies by registered Medical Practitioners
and for matters connected therewith or incidental thereto.
3. When pregnancies
may be terminated by registered medical practitioners -
(1) Notwithstanding anything contained in the Indian Penal Code (45
of 1860), a registered medical practitioner shall not be guilty of any
offence under that Code or under any other law for the time being in
force, if any pregnancy is terminated by him in accordance with the
provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be
terminated by a registered medical practitioner, -
(a) Where the length
of the pregnancy does not exceed twelve weeks if such medical practitioner
is, or
(b) Where the length of the pregnancy exceeds twelve weeks but does
not exceed twenty weeks, if not less than two registered medical practitioner
are,
of opinion, formed in good faith, that -
(i) the continuance
of the pregnancy would involve a risk to the life of the pregnant woman
or of grave injury to her physical or mental health; or
(ii) there is a
substantial risk that if the child were born, it would suffer from such
physical or mental abnormalities to be seriously handicapped.
Explanation 1 - Where any pregnancy is alleged by the pregnant woman
to have been caused by rape, the anguish caused by such pregnancy shall
be presumed to constitute a grave injury to the mental health of the
pregnant woman.
Explanation 2 -
Where any pregnancy occurs as a result of failure of any device or method
used by any married woman or her husband for the purpose of limiting
the number of children, the anguish caused by such unwanted pregnancy
may be presumed to constitute a grave injury to the mental health of
the pregnant woman.
(3) In determining
whether the continuance of a pregnancy would involve such risk of injury
to the health as is mentioned in sub-section (2), account may be taken
of the pregnant women's actual or reasonable foreseeable environment.
Explanation 2 above
which applies only to married couples can be used as an excuse to abort
a pregnancy whether or not grave mental injury is likely to ensue. 'May
be presumed' can be understood as 'Can be presumed'. Contraceptive failure
seldom takes place. The intent of the lawmakers was that the pregnancy
was to be terminated only if it was going to cause grave mental injury
to the pregnant woman. Grave mental injury implies permanent damage
to the psyche of the pregnant woman. Whilst this is understandable where
rape is concerned, there is no justification whatsoever for a first
or even second healthy pregnancy of a married woman to be aborted on
this ground unless there are other reasons which are already covered
in the Act. In fact Sub Section 3 allows the woman's foreseeable environment
to be taken into account.
It is interesting to note that the rules which were framed to implement
the Act have accepted 'failure of contraception' as one of the reasons
for abortion. So when the doctor ticks the reason on the form, an additional
reason has been added. This was certainly not the intent of the lawmakers
and is contradictory to the spirit of the Act and hence bad in law.
It is amazing that
this has not been pointed out by several organizations, experts and
opinion makers who have been studying falling sex ratios There is an
urgent need to look into the Act and amend it to delete Explanation
2. Section 3 of the Act covers the aspect of grave physical and mental
injury, therefore there is no need to explain or qualify that provision
of the Act. It is also for consideration that keeping in mind the requirement
to restrict the number of children in a family, abortion should be permitted
provided a couple has two or more surviving natural or adopted children.
The lawmakers could not have envisaged that the use of technology along
with a loophole in the Act would result in a grave social crisis.