India's Abortion Laws: Sex-Selective Practices Examined

India has two laws that prohibit the sex selection of a fetus: the Medical Termination of Pregnancy Act, 1971 (MTP), as amended in 2002, and the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT), as amended in 2002. The MTP Act prohibits abortion except in certain qualified situations, while the PNDT Act prohibits the sex selection of a fetus with a view towards aborting it.

The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (amended in 2002)

The act covers every genetic counselling centre, genetic laboratory or genetic clinic engaged in counselling or conducting pre-natal diagnostics techniques, such as in vitro fertilisation (IVF) with the potential of sex selection (Preimplantation genetic diagnosis) before and after conception. The act also regulates the use of pre-natal diagnostic techniques, like ultrasound and amniocentesis, allowing their use only to detect genetic abnormalities, chromosomal abnormalities, certain congenital malformations, and sex-linked disorders.

The act mandates compulsory registration of all diagnostic laboratories, genetic counselling centres, genetic laboratories, genetic clinics, and ultrasound clinics. It also prohibits the sale, distribution, supply, or renting of any ultrasound machine or any other equipment capable of detecting the sex of the foetus.

Offences under the act include conducting or helping in the conduct of prenatal diagnostic techniques in unregistered units, sex selection on a man or woman, conducting PND tests for any purpose other than those mentioned in the act, and advertising pre-natal and pre-conception sex determination facilities.

The implications of the amendment to the act include bringing pre-conception sex selection and ultrasound technology within its ambit, empowering the central supervisory board and constituting state-level supervisory boards, providing for more stringent punishments, empowering appropriate authorities with the power of civil court for search, seizure, and sealing the machines and equipment of violators, and regulating the sale of ultrasound machines only to registered bodies.

The Medical Termination of Pregnancy Act, 1971 (amended in 2002)

The Medical Termination of Pregnancy Act, 1971, was amended in 2002 to address the shortcomings of the original Act. The Act did not provide a qualified right to terminate a pregnancy beyond 20 weeks, and it included several legal obstacles. The 2002 amendment introduced a legal provision to increase the gestation termination period from 20 to 24 weeks.

The Medical Termination of Pregnancy Act, 1971, failed in one of its primary objectives: to provide safety to pregnant women and empower them by granting a qualified right to terminate their pregnancies as per their free will. The Act was criticised for failing to keep up with contemporary technologies, and amendments were deemed necessary to address this issue.

The 2002 amendment addressed the issue of consent in the case of minors or individuals with unsound minds. According to the Act, the written consent of a guardian is required if the pregnant individual is a minor or is insane. The amendment changed the language from "lunatic" to "mentally ill person" to address psychological illnesses that did not amount to mental disabilities.

The 2002 amendment also established committees at the district level to decide whether private establishments could provide abortion services. These committees were responsible for ensuring that the nature and magnitude of abortion services, including the time and location of performing the terminations, complied strictly with the provisions of the Act.

The Indian Penal Code

The Medical Termination of Pregnancy Act, 1971 (MTP), as amended in 2002, prohibits abortion except in certain specified situations. The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT), as amended in 2002, prohibits the sex selection of a foetus with a view towards aborting it.

The Indian government's population control policies

India has long struggled to find a viable policy to control its population growth. In 1952, it became the first country to adopt a family planning program, but its population continues to grow by 15.5 million people each year.

In 2000, the Indian government introduced the National Population Policy, which aimed to bring the total fertility rate to replacement level by 2010 and to achieve a stable population by 2045. The policy sought to achieve this through "promotional and motivational measures" that emphasized quality of life, rather than specific numerical targets for contraceptive use. It also focused on improving public health, education, and sanitation, and promoting women's employment.

The policy included recommendations such as freezing the number of seats in the Indian parliament for 25 years to avoid penalizing states that had complied with previous population policies, and the formation of a National Commission on Population to guide and review implementation.

However, the policy has faced challenges, including the need for additional funding for implementation and potential misuse of certain measures, such as incentives for the birth of a girl child and health insurance for couples below the poverty line who undergo sterilization.

One of the critical aspects of population control in India is addressing sex-selective abortions, which have contributed to unbalanced gender ratios. While the Indian government has enacted measures to curtail this practice, it remains prevalent, with approximately 50,000 to 100,000 female abortions occurring each year.

To address this issue, the Indian government passed the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act in 1994, which banned testing for the sex of the fetus. This was further amended in 2004 to deter and punish prenatal sex screening and sex-selective abortion. However, the impact of this law has been limited, and sex-selective abortions continue to occur, particularly in urban areas and among higher social classes.

Overall, India's population control policies have had mixed results, and the country continues to grapple with the challenge of curbing population growth while promoting gender equality and improving access to education, healthcare, and other essential services.

The Indian government's family planning policies

The Indian government has recognised the need to strengthen the coordination of all aspects of family planning, focusing on planning, programmes, monitoring, training and procurement. The quality of care in family planning must be a major focus area to ensure the success of family planning programmes.

The government has also recognised the need for greater male participation in family planning as both enablers and beneficiaries. This is particularly important in a country where family planning is largely viewed as a woman's issue.

The government has also committed to addressing critical indicators such as child marriage and early pregnancy, which are prevalent in India.

In 2017, the Ministry of Health and Family Welfare launched Mission Pariwar Vikas, a central family planning initiative. The key strategic focus of this initiative is on improving access to contraceptives through delivering assured services, ensuring commodity security and accelerating access to high-quality family planning services. Its overall goal is to reduce India's overall fertility rate to 2.1 by 2025.

The Indian government has also implemented population control policies, which have inadvertently played a complementary role in fostering sex-selective abortions. These policies have sanctioned aggressive population control measures and unregulated usage of modern reproductive technologies.

To address sex-selective abortions, the Indian government has introduced laws such as the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, which bans the application of prenatal tests for sex determination. However, the implementation of this law has been challenging due to the difficulty in differentiating between legal and illegal use of ultrasounds and the difficulty in establishing a link between sex-selective abortions and the use of ultrasounds.

Overall, the Indian government's family planning policies aim to achieve population stabilisation, promote reproductive health, and reduce maternal and child mortality, while also addressing issues such as sex-selective abortions and child marriage.

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