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Are Liberal Abortion Laws Responsible For Female Foeticide?

By Pavan Nair

05 October, 2005

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).

(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.











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