Back to Sex Selection & Abortion

Executive Summary

Two laws that prohibit the sex selection of a fetus in India are 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 former Act prohibits abortion except only in certain qualified situations, while the latter prohibits the sex selection of a fetus with a view towards aborting it. 

Background

The laws of India do not permit abortion.  The Medical Termination of Pregnancy Act, 1971 (MTP)[1] Act, which prohibits abortion, was enacted with a view towards containing the size of the family.  However, in some cases the desire for a small family may have outweighed the desire for a child of a specific gender, leading to abortions where the sex of the fetus was different from that desired by the family.  The MTP Act stipulated that an abortion may lawfully be done in qualified circumstances.  But the unscrupulous connived to misuse the law to have abortions conducted for the purpose of sex selection. 

Later, innovative technologies made sex selection easier, and without the regulations to control the use of such technologies, these technologies began to be misused for sex-selective abortions.  These actions necessitated enactment of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT)[2] in 1994.  This act was amended in 2002 in an effort to close loopholes contained in the original act. 

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.[3] 

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.[4] 

A pregnancy caused by rape is presumed to constitute a grave injury to the mental health of the pregnant woman.[5]  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.

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 fetuses whose sex and family history indicate a high risk for certain sex-linked diseases, or to choose a fetus 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 fetus that is at a risk of being born with serious physical or mental disabilities.  While it is legally permissible to abort a fetus at risk of serious physical or mental disabilities, it is not permissible to select a fetus 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.[6]  

Conclusion

Indian laws do not, under any circumstance, allow sex determination tests to be undertaken with the intent to terminate the life of a fetus developing in the mother’s womb, unless there are other absolute indications for termination of the pregnancy as specified in the MTP Act of 1971.  Any act causing the termination of the pregnancy of a normal fetus would amount to feticide, and in addition to rendering the physician criminal liable, is considered professional misconduct on his part, leading to his penal erasure.  

For more information on India see:

• Global Legal Monitor: India
• Guide to Law Online: India

Prepared by Krishan S. Nehra, Senior Foreign Law Specialist

June 2009

1. The Medical Termination of Pregnancy Act, No. 34 of 1971, as amended by the Medical Termination of Pregnancy Act, No. 64 of 2002. [Back to Text]
2. The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, No. 57 of 1994, and the Pre-natal Diagnostic Technologies (Regulation and Prevention of Misuse) Amendment Act, No. 2002, No. 14 of 2003. [Back to Text]
3. The Indian Penal Code, Act No. 45 of 1860, § 312. [Back to Text]
4. Supra, note 1, § 3(2)(ii). [Back to Text]
5. Id.§ 3(2)(ii) Explanation I. [Back to Text]
6. Supra, note 3, § 27. [Back to Text]

Last Updated: 08/02/2012