Medical Termination of Pregnancy

and Pre Natal Diagnostic Techniques

Act 1994
Health Law Assignment
BURHANUDDIN SALARIA
B.A,LL.B(H) IVth Year

Acknowledgement
I am indebted in all humbleness and gratefulness to acknowledge my depth to
all those who have helped me to put these ideas, well above the level of
simplicity and into something concrete.
I would like to express my special thanks of gratitude to my teacher
who gave me the golden opportunity to do this wonderful project which also
helped me in doing a lot of Research and i came to know about so many new
things. I am really thankful to her. Any attempt at any level cant be
satisfactorily completed without the support and guidance of hers.
I would like to thank my parents who helped me a lot in gathering different
information and guiding me from time to time in making this project, despite of
their busy schedules, they gave me different ideas in making this project unique.

Thanking you.
Burhanuddin Salaria

Table of content

Introduction
Medical Termination of Pregnancy
Indian Perspective
Law of Abortion: critical analysis
The Medical Termination of Pregnancy Act
Pre-Natal Diagnostic
Bibliography

INTRODUCTION
Law has had important contributions to several public health achievements but,
despite this, the conceptual framework for its effective application has not been
fully explicated. Medicine has moved beyond treating disease to promoting
health, which entails policy interventions and regulations at different levels to
bring about behavioural changes in individuals. This was identified by the
nineteenth century German physician Rudolph Virchow who said: Medicine is
a social science and politics nothing but medicine on a grand scale. In the
present-day changing scenario, physicians need to understand the social
implications and the over-arching role of law. We highlight how a framework of
law can be developed for promoting public health goals.
The Constitution of India has provided guarantees and policy directives in Part
III1 and Part IV2 for the right to health and healthcare. The Supreme Court of
India has articulated in several landmark judgments3 that the right to health is
integral to the right to life under Article 21 of the Constitution of India. While
on the one hand, the right to health is guaranteed as a fundamental right, the
Constitution also imposes a positive duty on the State under Article 47 to raise
the level of nutrition and the standard of living, and to improve public health to
ensure the right to healthcare. Thus, as endorsed in the Declaration of Alma Ata
in 1978, the attainment of the highest possible level of health becomes the key
worldwide social goal. The Constitution of South Africa too, in its Bill of

1Fundamental Rights
2 Directive Principles of State Policy
3Mohinder Singh AIR 1997 SC 1225

Rights,4 expressly declared access to healthcare, food, water and social security,
besides emergency medical treatment, as the fundamental rights of individuals.
Abortion has been legal in India since 1971, when the Medical Termination of
Pregnancy Act was passed. The law is quite liberal, as it aims to reduce illegal
abortion and maternal mortality.
Sex selection is a deep rooted problem in India. Families who discriminate
against girl children prefer to abort the child before it is born. The boy child is
preferred since he will carry on the family name, provides for the elders and is
not a burden on the family at the time of marriage. In 1994 the Government of
India in an attempt to stop female foeticide passed the Pre-natal Diagnostic
Techniques (Regulation and Prevention of Misuse) Act. In 2002 the act was
amended. Following is an overview of the act in its amended form.

4 Article 27 of the Constitution of South Africa

MEDICAL TERMINATION OF PREGNANCY

Human Rights are those rights, which should be available to every individual
without any discrimination of any kind. Recognition of the inherent dignity and
of the equal and inalienable rights of all members of the human family is the
foundation of freedom. The most important right of a Human is the right to life.
It is the supreme human right from which no derogation is permitted. It is
inalienable. The Article 6(1) of the International Covenant on Civil and Political
Rights prohibit the arbitrary deprivation of life. But there are some controversial
issues related to this supreme right. One such issue is the question of Right to
abortion. Among other rights of women, it is believed that every mother has a
right to abortion, it is a universal right. But the rights of the mother are to be
balanced with the rights of the unborn.
Earlier the right to abortion was not permitted and it was strongly opposed by
the society. The termination of pregnancy was termed to be a murder of the
fetus. But due to the change in time and technology, nowadays this right has
been legally sanctioned by most of the nations after the famous decision of Roe
Vs Wade by the US Supreme Court. But the oppositions are still present and
people do believe that it should be legally prohibited. The question which is the
reason for this discussion is- whether a mother has a right to abortion vis a vis
the right to life of the unborn What are the International instruments which
sanction the right to abortion.

International instruments relating to right of termination o pregnancy:

Article 1 of the American Declaration of Rights and Duties of Man and the Inter
American Commission of Human Rights say that abortion is legalized until the
end of Firat trimester Right to life is protected from the moment of its
conception by Articles 6(1) of the ICCPR, Article 2 of the European Convention
of Human Rights and Article 4 of the African Charter of Human Human and
People's right. But they are silent on the issue of when does life begin. But the
interpretations have forced us to believe that the child is not to be protected
from the time of its inception. The right to life of the foetuss has to be balanced
with the rights of the mother.
International courts and tribunals have not addressed the difficult philosophical
issue of when life begins, but have focused on the meaning of the language used
in the relevant treaties. They have generally held that the references to every
human being or everyone or every person do not include an unborn foetus.
The Indian Perspective:
Indian law allows abortion, if the continuance of pregnancy would involve a
risk to the life of the pregnant woman or grave injury to her physical or mental
health.
Abortion was being practised earlier by many. Because it was illegal, it was
practised in a clandestine manner. The passing of the Act made medical
termination of pregnancy legal, with certain conditions for safeguarding the
health of the mother.
Abortion is severely condemned in Vedic, Upanishadic, the later puranic(old)
and smriti literature. Paragraph 3 of the Code of Ethics of the Medical Council
of India says: I will maintain the utmost respect for human life from the time of
conception.

The Supreme Court has said that the right to privacy is implicit in Article 21 of
the Constitution and a right to abortion can be read from this right.The Medical
Termination of Pregnancy Bill was passed by both the Houses of the Parliament
and received the assent of the President of India on 10th August, 1971. It came
on the Statute Book as the "The MTP Act, 1971". This law guarantees the Right
of Women in India to terminate an unintended pregnancy by a registered
medical practitioner in a hospital established or maintained by the Government
or a place being approved for the purpose of this Act by the Government. Not
all pregnancies could be terminated.

Section 3 of the said Act, says that pregnancy can be terminated:

(1) As a health measure when there is danger to the life or risk to physical or
mental health of the women;
(2) On humanitarian grounds - such as when pregnancy arises from a sex crime
like rape or intercourse with a lunatic woman, etc. and
(3) Eugenic grounds - where there is a substantial risk that the child, if born,
would suffer from deformities and diseases.
A woman's right in this respect is doubtful because her right is dependant on
certain conditions: proof of risk to her life or grave injury to her physical or
mental health, substantial risk of physical or mental abnormalities to the child if
born and a situation where abortion could only save her life, all to be arrived at
by the medical practitioners. Can a woman request a medical practitioner to
perform an abortion on the ground that she does not want a child at that time?
Where the liberty of the woman is fully dependant on certain other factors, such
are quest cannot be said to be just and reasonable. The M.T.P. Act also does not

classify the pregnancy period so that the woman's interests and the state's
interests could be given predominance in one's own spheres.
It is submitted that a decision as to abortion may be entirely left with woman
provided she is sane and attained majority. Only in cases where an abortion may
affect her life, her freedom may be curtailed. All other restrictions on the right
to abortion are unwelcome. True, a woman's decision as to abortion may depend
upon her physical and mental health or the potential threat to the health of the
child. Apart from these reasons, there are also various important factors. She or
the family may not be financially sound to welcome an addition. It may be a
time when she wants to change her profession, which requires free time and
hard work. Her relationship with the husband may virtually be on the verge of
collapse and she may prefer not to have a child from him, for it may possibly
affect a future marriage. All these factors are quite relevant and the Indian
statute on abortion does not pay any respect to them. The law thus is
unreasonable and could well be found to be violative of the principles of
equality provided under Article 14 of the Constitution. Is it desirable to pay
compensation to woman for all her physical and mental inconveniences and
liabilities, which arises in that context. Finally it may be noted that the M.T.P.
Act does not protect the unborn child. Any indirect protection it gains under the
Act is only a by-product resulting from the protection of the woman. The rights
provided as well as the restrictions imposed under the statute show that the very
purpose of the state is to protect a living woman from dangers which may arise
during an abortion process. It is the protection to the mother that protects the
unborn.

Law of Abortion in India: A Critical Analysis

Free access to abortion is a womans right and a major demand
of the feminist movement. In India, legalising abortion, which
was done in 1971, has not yielded the expected outcomes.

Despite the existence of liberal policies, the majority of women

still resort to unsafe abortion, contributing substantially to the
burden of maternal morbidity and mortality. This is partly due
to the low awareness of the legality of abortion amongst
women, and a large number of misconceptions about the law
amongst providers.5 Liberal abortion policies and legislation by
themselves are thus not adequate to ensure access to safe
abortion services. This paper critically reviews current abortion
policy (in terms of content, context and conformity with
international policy, as well as how it is practised), identifies
policy gaps in the context of reproductive rights and emerging
reproductive technologies, examines programme barriers to
policy implementation and advocates evidence-based policy
change for policy-makers and all stakeholders to review and
reinforce their commitment to safe abortion care. Abortion
policy in India is consistent with safeguarding reproductive
rights as envisaged by International Conference on Population
and Development (ICPD) and other international agreements. 6It
does not advocate abortion as a family planning measure.
Rather, it encourages the promotion of family planning services
to prevent unwanted pregnancies and at the same time
recognises

the

importance

of

providing

safe,

affordable,

accessible and acceptable abortion services to women who

need to terminate an unwanted pregnancy. The MTP Act aims to
regulate and ensure access to safe abortion care and defines
5 Coyaji, Banoo. (1990). Safe motherhood and RU486 in the third world. IPPF
People, 17(3), 1315
6 Goyal, R. S. (1978). Legalisation of abortion: A social perception. Health and
Population: Perspectives and Issues, 1, 302308

when where and under what conditions abortion is

permissible.
While defining punitive measures to deter abortion facilities
that provide unsafe abortion care, the Act offers full protection
to registered providers from any legal proceedings for any
injury caused to a woman seeking abortion.

The Medical Termination of Pregnancy Act

In a global context where induced abortion is restricted by law
and even criminalised in several countries, India enjoys the
dubious distinction of being a country where abortion is legal
but largely unsafe and unavailable. 7 In 1972, with the
implementation of the Medical Termination of Pregnancy (MTP)
Act of 1971, India joined 25 other countries, which had enacted
a legislation decriminalising abortion and making it legally
available. A major critique of the MTP Act is its apparent over
medication and physicians only policy that reflect a strong
medical bias and ignore the socio and political aspects of
abortion. The need for two doctors to certify opinion for a
second trimester MTP is an unnecessary restriction imposed by
law.8Abortion policy within the rights framework emphasises not
7 Khan, M. E., Patel Bella, C, & Chandrasekar R. (1990a, September). A study of
MTP acceptors and their subsequent contraceptive use. Journal of Family Welfare,
36(3), 7085
8 Khan, M. E., Patel Bella, C., & Chandrasekar, R. (1990b, September).
Contraceptive use dynamics of couples availing of services from government

only the woman to seek safe abortion, but also her right to
access safe abortion services as well as information about the
availability of such services and the consequent responsibility
of the state to provide these services 9. Though abortion law
allows for termination of pregnancy for a wide range of reasons
construed to affect the mental and physical health of the
woman, it remains with the doctor (and not the woman) to
opine in good faith, the need for such a termination. Such a
provider-dependent policy might result in denial of abortion
care to women in need, especially the more vulnerable
amongst them, for various reasons, including conscientious
objections. It is also argued that it may compel a woman to lie
about the situation surrounding her unwanted pregnancy.
Further, the same provider-depended law, however liberal it
may be, can become restrictive under different socio and
political compulsions without the alteration of even a single
word. Moreover, while the MTP Act permits women seek legal
termination of an unwanted pregnancy for a wide range of
reasons, the clause about contraceptive failure applies only to
married woman. This discrepancy needs to be corrected.
While the abortion policy allows for monitoring of quality of
abortion care in the private sector, its recognition of all public
health institutions as abortion facilities by default exempts the
public sector from certification. This raises a potential hazard in
family planning clinics A case study of Orissa. Journal of Family Welfare, 36(3),
37.
9 Krishnakumar, S. (1974, February). Ernakulams third vasectomy camp using
the camp approach. Studies in Family Planning, 2, 5861.

that public sector abortion facilities are not constrained to

adhere to the physical standards and quality of abortion care
expected of the private sector.
The default recognition of all public health institutions as
abortion

facilities

also

implies

the

responsibility

of

the

government to make each public health institution capable of

providing abortion care and hence makes the state accountable
for it.10
The MTP Rules specify certification procedures, and regulatory
and redress mechanisms to ensure compliance with safe
abortion care. For registration of abortion facilities, the
amended
MTP Rules stipulate a time frame of two months for inspection
after receipt of application and another two months for
approval after full compliance with requirements. By making
the

government

accountable,

this

mandate

serves

to

encourage abortion facilities to obtain registration. However, it

does

not

specify

measures

or

redress

mechanisms

if

certification procedures are not completed within the stipulated

time frame. More substantively, the amended MTP Rules
differentiate between and rationalise the training/experience
criteria required of the doctor and the physical standards
required of the facility for first and second trimester abortions.
This amendment has the potential to increase the availability of
first trimester abortion without compromising on safety 11. The

10 Supra Note 2.

amended MTP Rules also allow registered medical practitioners

to provide medical abortion within the scope of the law.
Such providers need to have access to (and not necessarily
have

on-site

capability)

surgical

abortion

services.

This

amendment potentially serves to expand the availability of

medical abortion.
Another major critique of the abortion policy is its lack of a link
with good clinical practice and research. The MTP Rules define
personal requirements, but do not refer to any national or
international technical guidelines for safe abortion care. In the
absence of such linkages with guidelines for good clinical
practice, providers continue to use unsafe abortion practices
like sharp curettage, check curettage following a vacuum
aspiration,

general

anaesthesia,

different

drug

dosage

schedules and protocols for medical abortion, etc. The scope of

an abortion policy needs to be broad enough to internalise
emerging advances in reproductive technology. 12
A large unmet need for MTP training exists in both the public
and private sectors. Selection norms for training centres should
ensure an adequate caseload to allowing hands on training.
Further, the few training centres that do exist are inequitably

13

11 Ministry of Health and Family Planning, Government of India. (1966). Report of

the Committee to Study the Question of Legalisation of Abortion.
12 Sengupta B. Liberalisation of abortion as a population control measure. Indian
Journal of Public Health Vol ix no.2, April 1965, pp 69-73
13 Lahiri D, Konar M. Abortion hazards. Journal of the Indian Medical Association,
Vol 66 no.11, 1976, pp.288-94.

distributed between states, and function below par. The private

and non-governmental sectors potential for training has not
been tapped. And while the goal of training policy is to provide
MTP training to medical officers at all Public Health Centres
(PHCs), poor coordination, low priority and lack of clarity about
training needs have resulted in very few trained doctors at
PHCs. An important gap in training policy is the lack of training
opportunity

for

private

medical

practitioners

desirous

of

providing abortion care. Training policy needs to address the

training needs of the private sector and allow MTP training
centres to charge private medical practitioners for training
services.
Comprehensive abortion care is integral to abortion services.
This includes providing pre and post-counselling services for
contraception, STI and HIV counselling and voluntary testing,
extended care up to six weeks after abortion and management
of abortion complications.14Covert and overt coercion for postabortion contraceptive use in public institutions often compels
women to seek unsafe abortion elsewhere. Abortion policy also
needs to explicitly link up with national and international
technical

guidelines

for

management

of

post-abortion

complications. Access to safe abortion care goes beyond an

enabling policy environment. Rules and regulations may
themselves create barriers to policy implementation. Many
administrative barriers not dictated by law evolve simply as
through practice and get misinterpreted as required by law.
14 . Petchesky RP. The state, sexuality and reproductive freedom. North eastern
University Press, 1990.p.xi

Spousal consent, informal fees, lack of awareness about the

legality

of

abortion,

judgmental

attitudes,

conscientious

objection to abortion by providers, the traditional neglect of

underserved women such as adolescents and single women by
the health services, and other barriers need to be identified and
measures taken to end such misguided practices. 15
Policies need to clearly demarcate the purposes and domains of
the PNDT Act and the MTP Act. Recent media campaigns to
enforce the PNDT Act to prevent sex selective abortions have
blurred this demarcation and often denied access to safe
abortion care to women seeking to terminate a pregnancy
within the legal framework. The PNDT Act and the MTP Act do
not conflict or contradict but coexist. The belief that a
restrictive abortion policy will prevent sex selective abortion is
unfounded.

Policies

need

to

ensure

that

measures

for

preventing sex selective abortion do not affect access to safe

abortion care for the genuine abortion seeker.
Despite its ability to influence and shape policy, the private
sector has traditionally distanced itself from all matters relating
to it. It is only recently that non-governmental professional
bodies have interacted with the government to reshape
abortion policy. Though being the largest provider of abortion
services, the private sector has until recently played a minimal
role in educating and training its fraternity in safe abortion
care.

15 Dongaonkar, D., K. G. Tripathy, and U. B. Saraiya. 1995. "Changing Trends in

Contraceptive Usage." The Journal of Obstetrics and Gynaecology of India.

While not shy of critiquing public policy, the general phobia for
record keeping and reporting and the consequent fear of
accountability to the state, has restrained private doctors from
taking part in public policy dialogue. The general lack of
concern in the private sector about ethical violations and the
lack of adherence to minimal quality standards on the one
hand, and the blind eye it turns towards the uncertified and
unqualified providers of illegal and unsafe abortion among its
fraternity on the other, raises concerns about self-regulation
within the sector.16 It is only recently that some private actors
have begun to play a more proactive advocacy role for
improving access to safe abortion care, though there have
been/are many opportunities for public private partnerships in
the areas of policy formulation, research, training and practice,
and the strengthening of safe abortion care.
In Dr. Rajeswari vs State Of Tamil Nadu And Others, an unmarried girl of 18
years who is praying for issue of a direction to terminate the pregnancy of the
child in her womb, on the ground that bearing the unwanted pregnancy of the
child of three months made her to become mentally ill and the continuance of
pregnancy has caused great anguish in her mind, which would result in a grave
injury to her mental health, since the pregnancy was caused by rape. The Court
granted the permission to terminate the pregnancy.
In Dr. NishaMalviya and Anr. Vs. State of M.P, The accused had committed
rape on minor girl aged about 12 years and made her pregnant. The allegations
are that two other co-accused took this girl, and they terminated her pregnancy.
So the charge on them is firstly causing miscarriage without consent of girl. The
16 Mandal KT. Problem of unmarried mothers. Journal of the Indian Medical
Association Vol.79 No. 5&6, 1982.

Court held all the three accused guilty of termination of pregnancy which was
not consented by the mother or the girl.
In Murari Mohan Koleyvs The State(2003), a woman wanted to have abortion
on the ground that she has a 6 months old daughter. She approached the
petitioner for an abortion. And the petitioner agreed to it for a consideration. But
somehow the condition of the woman worsened in the hospital and she was
shifted to another hospital. But it resulted in her death. The abortion was not
done.The petitioner who was a registered medical practitioner had to establish
that his action was done in good faith ( includes omission as well ) so that he
can get exemption from any criminal liability under section 3 of the MTP Act,
1971.
ShriBhagwanKatariyaAnd Others vs State of M.P: abortion without mothers
consent .The woman was married to Navneet. Applicants are younger brothers
of said Navneet while BhagwanKatariya was the father of said Navneet. After
the complainant conceived pregnancy, the husband and the other family
members took an exception to it, took her for abortion and without her consent
got the abortion done.
The Court opined that if we refer Section 3 of the Medical Termination of
Pregnancy Act, 1971, a doctor is entitled to terminate the pregnancy under
particular circumstances and if the pregnancy was terminated in accordance
with the provisions of law, it must be presumed that without the consent of the
woman it could not be done. Present is a case where a permanent scar has been
carved on the heart and soul of the woman by depriving her of her child. And
the Doctor will be liable.
Thus, the case laws show that a woman has an absolute right to abortion and no
one can take away this right from her. The Judiciary has been playing a vital

role in securing these rights to women. Right to abortion is a fundamental right

of privacy.

PRE-NATAL DIAGNOSTIC
Sex selection is a deep rooted problem in India. Families who discriminate
against girl children prefer to abort the child before it is born. The boy child is
preferred since he will carry on the family name, provides for the elders and is
not a burden on the family at the time of marriage. In 1994 the Government of
India in an attempt to stop female foeticide passed the Pre-natal Diagnostic
Techniques (Regulation and Prevention of Misuse) Act. In 2002 the act was
amended. Following is an overview of the act in its amended form.
In order to fully understand the provisions of this act it is important to know two
definitions as given in the act. Embryo refers to a developing human organism
after fertilization till the fifty-sixth day. Foetus refers to a developing human

organism from the fifty-seventh day after fertilization till birth. The act firstly
outlines provisions about the regulation of genetic counselling clinics, genetic
laboratories and genetic clinics. All such clinics have to be registered under this
act, and all medical professionals employed must have the appropriate
qualification to conduct pre-natal diagnostic techniques.
The act prohibits the medical personnel from conducting or helping anyone
conduct sex-selection. All medical equipment regarding pregnancies shall be
sold only to registered clinics. All pre-natal diagnostic techniques are banned
except for the detection of chromosomal abnormalities, genetic metabolic
diseases,

haemoglobinopathies,

sex-linked

genetic

diseases,

congenital

anomalies, any other abnormalities or diseases as may be specified by the

Central Supervisory Board; only as long as there is a potential threat to the child
as outlined in the act. No person is allowed to divulge the sex of a child in any
form of communication, no clinic or person is allowed to conduct sex
determination tests, and no person shall commit the act or sex selection or aid in
doing so.
The act calls for the formation of a Central Supervisory Board and outlines all
logistically matters concerning the board. The purpose of the board is to advise
the central government regarding sex selection techniques, to insure the
implementation of the act, to create public awareness about the act, to lay down
a code of conduct for clinics, etc. Similarly State and Union Territory
Supervisory Boards will also be created. The will aim at creating awareness,
and review the actions of all authorities regarding pre-natal diagnostics.
Each state and union territory will also have an 'Appropriate Authority'
appointed, who will be responsible for registration and maintenance of clinics in
their jurisdiction. They must also enforce codes to be observed by clinics,
investigate violations of this act, take legal action against violators, advise the

supervisory boards on changes in technology, etc. They have the power to issue
warrants, summon people with information, and ask for any document to be
produced regarding the information. To aid the Appropriate Authority the
government will also form an Advisory Committee.
The act has a section that lists all offences and their penalties that can be
committed under this act. Under this act is it also an offence to advertise
techniques used for the purpose of sex-determination. People who contravene
the provisions of this act are liable to serve prison time and a fine. But women
who have been forced to by their husband or family to undergo pre-natal
diagnostic techniques will not be prosecuted under this act. Companied and
people in the position of responsibility in companies can also be charged for
violation of this act.
The Supreme Court, taking a serious view of the onslaught of sex-selective
discriminatory practices by the medical fraternity, and the connection it may
have with the use of pre-natal sex determination, directed the Centre to
implement the PC & PNDT Act in all its aspects. The order came following a
public interest petition filed by the centre for the Enquiry of Health and Allied
Themes (CEHAT), the Mahila Sarvangeen Utkarsh Mandal (MASUM) and Dr.
Sabu George, who had done extensive research in this area.
In order to stop this evil practice, the legislature has enacted certain laws which
are the Indian Penal Code, 1860; the Medical Termination of Pregnancy Act,
1971 and the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition
of Sex Selection Act) 1994.
The Indian Penal Code is the first law which contained provisions under
sections 312 to 316 for prohibiting miscarriage. These sections penalise violent
or forced abortions. The Medical Termination of Pregnancy Act, 1971
liberalised law and allowed termination of pregnancy on medical grounds,

humanitarian grounds and eugenic grounds. The real efforts on behalf of

legislature to curb the evil practice of female foeticide started with the passing
of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse)
Act, 1994. The Act was amended in 2002 and renamed as the Pre-Conception
and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
In order to prevent female foeticide, the PC & PNDT Act, 1994 provide
provisions under which Supervisory Board, appropriate authorities and advisory
committees are to be constituted by the Central Government as well as by the
State Government.
The extent and effect of enforcement of laws can be seen from the fact that the
first women who lodged a complaint five years ago, against her in-laws for
pre-natal sex determination still awaits for Justice. Despite all the hue and cry
about missing daughters, till the end of January 2006, just 308 persons had been
prosecuted, but not a single person had been convicted under the PNDT Act.
Inspite of all the laws in place, the sex ratio is declining at a very high speed.
Confronted with this situation, it is high time to take preventive measures
against female foeticide. We have to stop looking for quick fixes and instead
face the problem squarely. Female foeticide cannot be addressed in isolation, so
a holistic approach is necessary to stop female foeticide.
Following are some suggestions to combat the evil of female foeticide:
(1) The related social malaises such as dowry, poverty, womens unemployment
and exploitation, lack of proper education to girl child and their dropouts early
marriage etc. are to be dealt with sternly by enacting proper laws and
implementing them in true spirit.
(2) Affirmative action on part of the government and the corporate sector by
providing security for parents and granting financial aid to the girl child can
help in changing the mindset of the society of treating the girl as a burden.

Corporate initiatives, such as BetiEkAnmolRatan scheme in which the

donations are invested in mutual funds, KisanVikasPatras& National Savings
Certificates in the name of new born girls and on maturity (Age of 21 years) to
be utilised for higher education or marriage; has found favour with the parents
and the scheme is yielding positive results.
Government schemes like LADLI have created gender revolution in national
capital, and impacted sex ratio in favour of the girl child. Banks need to be
encouraged to give loans for female childs higher education at lower rates of
interest. Old age pension should be given to parents with no sons and having
only daughters.
(3) Awareness programmes should be launched to make the woman aware about
their rights and about the ill effects of abortions. Women should know their
rights regarding adoption, maintenance, marriage, property, employment,
education etc.
4) In order to make the females independent, women should be imparted skill
and training through various vocational programmes. Free and compulsory
education should be provided to female children so that they can support
themselves during exigency. Also it would remove the attitude that investing in
girls is unnecessary.
(5) As dowry is considered to be an important cause of female foeticide, the
Dowry Prohibition Act should be made more stringent by proper amendments
and should be implemented strictly.
(6) Medical termination of pregnancy should only be permitted after approval
of PNDT authority/committee/gazetted female officer/Mahila Panchayat
members/NGOs on proof of the existence of medical condition necessitating
such termination.

(7) The foetus should enjoy the right to life and should enjoy distinct legal
rights which should be recognized from the conception, because failure to
recognize the right to life on the foetus will amount to discrimination violating
Article 14

of the Constitution of India. Regarding the Unborn Childs rights in

the realm of torts, the Congenital Disabilities (Liability) Act, 1976, was passed
by the British Parliament providing for action that may lie against a person or
authority whose breach of duty to a parent results in a child being born disabled,
abnormal and unhealthy. Similarly the Nuclear Installation Act of 1965 (U.K.),
recognizes liability for compensation in resSpect of injury or damage caused to
an unborn child by occurrences involving nuclear matter or emission of ionizing
radiation. The Indian Parliament should enact laws on similar lines so as to
ensure healthy growth and safe birth of an unborn child.17
(8)

Village level committees should be set up to watch the pregnant women

besides setting up the Appropriate Authorities and Advisory committees at the

District and Sub-District levels.
(9)

There is need for social awareness that girls can grow up to be as good

as boys. They can be good citizens, good earners, good providers for their
family and for their parents. That woman need not be sold for dowry or burnt
for it, that her education can make her self-sufficient and economically blessed
as a man. A clear and strong social preference for the girl child is required to be
created which can be done by generating awareness.
(10)

In society, the members of the medical community enjoy a powerful

position. Medical professionals should counsel their patients and their families
on the importance of the girl child and impact of the skewed sex ratio on the
society.
17SupinderKaur, Female Foeticide A, Frightful Reality, 1st Edn., Central Law
Publications, Allahabad, U.P., 2009.

The Indian Medical Association, a professional body of practicing doctors,

should come forward and implement a No Sex Determination Code for
Doctors. The Doctors need to be reminded of their sacred duty of protecting
human life in any form rather than becoming a party in destruction of human
foetus in the womb. Licence to practice medicine of those doctors, who are
found guilty under the PNDT Act, 1994 or MTP Act, 1971 should be cancelled
and they should be debarred from practicing medicine for life. Step taken by the
Indian Medical Association constituting a special cadre of 50 doctors to self
police and make doctors understand their moral and legal responsibility to
ensure a healthy sex ratio, is a step in the right direction.
(11)

Although section 27 of the PNDT Act, 1994 makes the offences

cognizable, non-bailable and non-compoundable, the Police cannot take action

in view of section 28 of the Act. This difficulty in initiation of criminal
proceedings against offender should be removed.
(12)

The members of Appropriate Authority are mainly doctors and they are

reluctant to launch criminal proceedings against fellow doctors. Therefore, the

enforcement agency should be a different body of professionals consisting of
police, social workers and doctors.
(13)

Effective implementation of the PNDT Act needs to be assured through,

ensuring registration, curbing the spread of mobile ultrasound, regulating sale of

new machines, ensuring compliance of the Act like keeping records and
submitting them to the Authorities in time, preferably online like the birth
records are being done now; monitoring the functioning of these ultrasound
clinics, complete audit of all pregnancy ultra sounds across the country (audit
all F forms submitted).
(14)

Laws prohibiting sex selective abortions should be strictly implemented

and the violators should be punished.

(15)

As most of the decisions are made by men in the families, they need to

be sensitized about the practice of female foeticide and consequences thereof.

The education curriculum should be made gender sensitive, leading to gradual
formation of a changed value system in coming generation.
(16)

A social audit of all documents received from sonography clinics and

making the data regarding sale of ultrasound machines, which are used for
illegal sex determination tests, should be made available online. Information
received will help governmental and non-governmental organisation in
estimating the targets for proper implementation of the Acts and for suggesting
remedial measures to combat the problem. By involving all the stakeholders, a
comprehensive social audit can be conducted to launch a crusade against female
foeticide.
(17)

Determining the sex of the foetus as female and killing her subsequently

amounts to murder. So the punishment should be life imprisonment or death

sentence as in the case of intentional causing of death under section 300 of IPC.
(18)

A major hurdle in the endeavour to prohibit sex-determination and

regulation of PNDT techniques is that there is no proper duty laid upon any of
the authorities in the Act. Therefore, penalty must be imposed for nonperformance of duties or acts of commission or omission by the Authorities.
(19)

All abortions must be registered. In cases where a healthy female foetus

is aborted, both the doctor and the family should be brought to book.
Unless social action is supplemented with prompt implementation of regulations
under the law meant to stop female foeticides, such practices will continue to
flourish and sex selective abortions will make women endangered species. Time
has arrived to declare a crusade against female foeticide both on individual and
collective level to stop elimination of daughters only because of their sex.

CONCLUSION
Several national-level consultative efforts involving policymakers, professionals groups, NGOs and health activists, have
made major policy recommendations to improve access to safe
and legal abortion services in India. Many of these policy
recommendations are in line with the objectives and Action
Plan of Indias National Population Policy, 2000. 18 Increasing
availability,

creating

qualified

providers

and

facilities,

simplifying the registration process, de-linking place and

provider, linking policy with technology and research and good
clinical practice, and providing comprehensive and quality
abortion care are some of the immediate policy measures
18 Maitra, N. "Unsafe Abortion: Practices and Solutions." International Workshop
on Abortion Facilities and Post Abortion Care in the Context of RCH Program,
Working Session II, March 23-24,1998. New Delhi. Organised by the Centre for
Operations Research and Training.

needed to bring about a change in the current abortion

scenario in India.
A concerted and sustained advocacy effort to make abortion
safe directed towards national and state policy-makers as well
as programme managers, coupled with a sustained campaign
to increase the overall awareness about abortion laws and
policies amongst women and dispel myths about abortion
amongst policymakers and programme managers, and is
needed to ensure the political and administrative commitment
to provide safe abortion care to a woman seeking termination
of an unwanted pregnancy within an enabling legal and policy
framework.
The great Tamil Saint Thiruvalluvar said :"The touch of children is the delight of the body; the delight of the ear is the
hearing of their speech". A mother has got a natural duty to provide the
maximum best possible to her offspring. However, situations may arise where
she indulges in activities, which injuriously affect the foetus. It may be due to
ignorance, carelessness or acts done wilfully. Abortion is an issue to be left to
the decision of the mother. However, taking viability of a legal standard,
necessary protection should be provided to the unborn. It is also beneficial to
the mother, where the state or voluntary organizations are ready to take care of
the unborn. There is no meaning in conferring a right to the mother to destroy
the foetus. Her right is limited to have a termination of pregnancy. It is also said
that delivering 20 million babies annually would be a greater strain on the
nations medical services and economic resources than, say, performing one to
five million abortions a year.

The law has to take care of the liberty of the mother as well as the unborn. As a
hospitable community we should seek ways of providing support for lonely and
frightened mothers, and for lonely and abandoned babies. We need to offer
women with unplanned pregnancies as much love and support as they require
and to assist them in finding compassionate alternatives to abortion.
Strong male preference and consequent elimination of female has continued to
increase rather than decline with the spread of education.
The recent technological developments in medical practice combined with a
vigorous pursuit of growth of the private health sectors have led to the
mushrooming of a variety of sex-selective services. The increase in female
foeticide has been seen proportionate decrease in female sex ratio which has hit
an all time low especially in the 0-6 age group and if the decline is not checked
the very delicate equilibrium of nature can be permanently destroyed.

BIBLIOGRAPHY