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A MEDICO-LEGAL ASPECT OF

THE SEX DETERMINATION TEST

The emotional, sexual and psychological

stereotyping of females begins when the

Doctors say, ‘it’s a Girl. - Shirley Chisholm.

n the 21st century, women are moving ahead shoulder to shoulder with men

sharing all responsibilities, paying due respect and taking to high all professions

in aspects. We cannot forget the achievements of Indira Gandhi, Savitribai

Phule, Pratibhatai Patil Former President of India, Kalpana Chawala and Sunita

Williams in NASA, Chanda Kochar of ICICI Bank, Lata Mangeshkar Nightingale of

India, Sania Mirza, Siana Nehwal, etc. who have reached the moon and moving towards

mars, yet the position of woman is not far better. They are worshiped as Goddess in the

form Durga, Lakshmi, Sarswati etc. though reached to highest positions, holding

highest posts and gained highest education still; they are living in the concept of “चुल

आणी मुल”. For the woman she still does not have any right to take decisions regarding

her own body and her own life. She has taken every decision of her life depending upon

the male counterpart, it may be father, brother, husband or son. The decisions like her

marriage, bearing a child, pregnancy or abortion, where the vast Human Rights, Right

to life and liberty contains all the variety of rights which everyone needs to enjoys the

life.

I

Chapter

4

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Under such circumstances women were denied to enjoy her basic liberty on her body

envisaged under Right to life. Most of the benefits she is being denied in the concept of

treating her like machinery of production for producing as many as children, weather

she want or not. She has to compromise the peak period of her carrier to stay at home

and take care of children and house hold jobs. Then the question arises why she should

only bear the responsibilities of child and compromise her carrier while having child is

the pleasure of both. Is it not the duty of male counterpart to support her? Is it not a

violation of her Right to life which involved right to live with dignified life in her

profession and moving ahead in her path without any interruption?

Nobody is low and nobody is high. Assumption of superiority by any person over

another is a wrong against principle of Natural Law and Humanitarian Law. Not giving

rights to the woman to enjoy their own body so far as related to conception of

pregnancy, abortion or birth of child cannot determine one’s superiority or inferiority.

“Nature gave woman too much; the law gives them too little”.103 It means that nature

has already given many rights to woman without making discrimination on the basis of

sex. On the other hand, we can say that, woman is awarded with very strong power of

bearing child and to give birth to another living human being. This power is a magical

power which is only with the woman not with men. So, as per above proverb woman is

actually superior in all respect because, it’s a general rule that, if the fertile land is there

then it is superior or cow as animal who gives you milk and also having capacity to give

birth to ox, which would help you to cultivate your land then she is superior, then why

not woman? Therefore, the above proverb rightly said that, by nature woman is superior

and its nature, who gives so much power to woman but it is a law who failed to protect

woman by not giving powers to them. As a result of this from ancient community to

modern era, instead of woman getting their superior status they always subject to

violence and discrimination and now it has increased in such a level that, peoples kill

their own girl child in mother womb, without thinking anything.

‘Female Foeticide’ is the most extreme form of violence against woman. Today, a girl

is several times more likely to be eliminated before birth than die of various causes.

103Will Henry, American political adviser and columnist.

78

Nature intended the woman to safe space. Now a day’s Doctors have made it most

unsafe space for a female child. Over the centuries, volumes have been written on

woman, her role, place in society and so on. There is no dearth of books on the subject

still, because of growing incidences of unsafe abortions and ‘Female Foeticide’.

Therefore, it’s a need to find out the actual medico legal problems behind committing

foeticide.

The researcher in this chapter has explained about the right of woman on her own body,

whether it gives right to her to take away the life of foetus in her own womb. Because

it is her own body part so she is having right to enjoy her property in any way she likes

and it includes abortion, continuation of pregnancy or number of children. But so far as

life of foetus is concern, whether she can enjoy this right against Right to life of foetus

as per law? Whether it includes choice of sex of child? Or whether it only related to the

pregnancy that continue it or not to continue it? Hence these entire things have been

explained in this chapter as under.

4.1 HISTORY OF ABORTION IN INDIA:

Abortion exists from ancient time. The first incident of induced abortion was found in

Egyptian Ebers papyrus in 1550 BC. It is historically proved fact that, abortion was

practiced in every culture without prohibition of religion or law. Abortion was also

performed illegally to get rid over unwanted pregnancies. In ancient time woman used

certain unsafe methods for abortion by self-help but the guilt was always attached with

them that, abortion is immoral, against nature and it is a tragedy also. There were some

examples which demonstrate existence of abortion in ancient history. Most of the

methods adopted at that time were non-surgical, for example forced labour pain,

paddling, climbing, weightlifting, using poisonous herbs, drinking hot water or lying

on the heated coconut shell etc.

A Sanskrit text in the 8th century depicted that, woman who induced for abortion use to

sit over a pot of steam or boiled onion so as to abort a child. In the same way in

Southeast Asia massage abortion was there. In this Technique pressure had been applied

on the pregnant woman’s abdomen so as to cause abortion.

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In this way it is historically proved phenomenon that, whatever the Government, law

or religion think, the fact is that people always find out the way to get rid out of their

unwanted child. Primarily it was stated that, abortion is specifically committed to save

life of pregnant woman but many time it has been performed under influence of

patriarchal interest which most of the time against will of the woman. There are many

examples of different countries like Ireland, and Poland where woman opposed the

Abortion law which created ban on abortion. The contentions of the women were that,

abortion is a right of every woman and Government cannot by making legislation takes

away this right from woman.

Therefore, as per above explanation it is clear that, abortion and reproduction freedom

are more a political issue than concerning to health of woman. It is also true at the point

of view of India.104

4.2 MEANING OF ABORTION:

The word ‘Abortion’ is derived from the Latin terminology ‘Aboriri’ which means ‘to

get detached from proper site’.

In Medical Terminology ‘Abortion’ meant the expulsion of the product of conception

at any period of gestation before full term. The distinction between abortion,

miscarriage and premature labour are not recognized in law and all are referred as

abortion. These terms are sometimes used to signify expulsion of ‘embryo’ or ‘foetus’

during the first, second and third trimesters of pregnancy, respectively.105

4.3 NATURE OF ABORTION:

A. Abortion are classified into two groups:

104By Ambika Kohili, ‘Sex Selection & abortion in India some implication for Indian Woman’,

http://www.academia.edu/12045769/Sex_Selection_and_Abortion_in_India_Some_Implications_for_I

ndian_Woman_by_Ambika_Kohli 105Dr. C. K. Parikh, Parikh’s textbook of medical jurisprudence, forensic medicine and toxicology for

classrooms and court rooms, CBS publishers and Distributors New Delhi, sixth edition, p.5.56

80

1. Natural Abortion

2. Artificial Abortion

1. Natural Abortion:

Natural abortion means those which occur naturally or spontaneously. Natural,

spontaneous and accidental abortion occurs in about 10 to 15% of all pregnancies. It

may result from contagious diseases of mother, such as high fever, infectious diseases,

viral diseases, local diseases of woman generating organs, such as inflammations,

chronic displacements, fibroid tumors and congenital malformations of the uterus. It

also includes sudden shock, fear, joy, sorrow and reflex irritations. It may also cause by

fall on and accidental blow on the abdomen and any cause, which brings about the death

of the foetus in utero, such as faulty development, diseases of the decidua and

degeneration of placenta.

2. Artificial Abortion:

It means those which occur as a direct result of interference with the pregnancy, it may

be legal or criminal.

B. Legal or Justifiable Abortion:

The Abortion can be legalized on certain grounds those are as under:

Abortion

ArtificialAbortion

Legal Abotion 1.Theraputic grounds 2. Eugenic grounds 3.Humanitarian grounds 4. Social grounds

Criminal Abortion 1. by use of drug 2. by application of mechanical violence

Natural Abortion

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i. Therapeutic Grounds:

Therapeutic Ground means, in case when continuation of pregnancy caused grave

physical or mental injury to the health of woman.

ii. Eugenic Grounds:

Eugenic Ground means if there is risk to the life of child that after his birth there is

every possibility of physical or mental abnormalities or to be seriously handicapped.

iii. Humanitarian Grounds:

If the alleged pregnancy has been caused by Rape, the anguish caused by such

pregnancy is presumed to constitute grave injury to her mental health of a pregnant

woman. In such situation on the basis of Humanitarian ground abortion of such

pregnancy is allowed.

iv. Social Grounds:

In case, the pregnancy in a married woman is the result of contraceptive failure, or the

environment of the pregnant woman, during the continuance of the pregnancy and at

the time when the child would be born and thereafter so far as it foreseeable, would

involve a risk of injury to her health. No contraceptives are hundred percent effective,

therefore, where any pregnancy occurs as a result of failure on 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 is presumed to constitute a

grave injury to the mental health of the pregnant woman.

Pregnancy can be terminated on environmental grounds like if the woman has some

heart disease, or has no one to help in her domestic work, as this strain of rearing, the

child is likely to be too much for her or if the new arrival is likely to create financial

difficulties, leading the family to poverty line or the woman has already two children,

she’s doing all her work by herself and live in a single room where she cooks, the family

82

eats, and sleeps or if there is already a subnormal child who requires considerable

attention, making it impossible to look after the new arrival.106

C. Criminal Abortion:

In India, criminal abortion is restored to mostly by widows who are prevented from

remarriage by social customs, by unmarried girls who have become pregnant from illicit

intercourse, or when family honor is at stake. Criminal abortion appears to be practiced

even by the married in all classes of society to avoid additions is to their families. Nearly

all criminal abortion takes place at about the second or third month, when the woman

has become certain of cessation of her periods and morning sickness has confirmed

pregnancy. This period is especially suitable because the fact of her being pregnant is

unknown to others.

The law regards criminal abortion or attempted criminal abortion as a serious antisocial

act, and the offences are dealt with under Section 312 to 316 of penal code. The

punishment varies from 3 to 10 years of imprisonment. In this way in nature of abortion

it is specifically stated the kinds of abortion, so as to understand that which is a legal

abortion and which is illegal one.107

i Methods of Criminal Abortion:

Following are two methods of criminal abortion.

a. Use of Drugs

b. Mechanical Violence

Let’s know how the abortion is caused by about in two ways:

a. Use of Drugs:

Many drugs used as abortifacients and have no effect on the uterus or foetus, unless

they are given in toxic doses. Death may result from the toxic effect of these drugs

106ibid 107Id 59

83

without abortion, occurring. In India, the drugs that are used to perform abortion

includes the seeds and the unripe fruits of Carice, Papaya, the unripe fruit of pineapple,

the seeds of Gajar, the Milky juice of Matar, Karela etc. they have no specific effect on

uterus.

b. Mechanical Violence:

Mechanical violence may be general or local. General violence act directly or indirectly

on uterus while local violence act by causing local irritation, followed by specific

abortion or self-instrumentation, by abortion stick or syringing fluids into uterus under

pressure or use of electricity etc.

Local violence includes the methods which largely depend upon skill and knowledge.

It may depend on skill, unskilled and Semi-skilled interference. So, far as unskilled

interference is concern itis commonly restricted to self-instrumentation. For example,

a woman who is in depression to do something may use anything at hand that is capable

of penetration such as pencil, knitting needle, hair pain, nails etc. this is also called self-

induced abortion and which is very harmful to the body of woman.

In Semi-skilled interference, abortion can be caused by use of syringe, capable of

injecting substances into the uterine cavity under pressure. In most of the cases it is not

successfully used or death is caused due to irritation or from shock. But sometime in

few cases uterine contractions are set up and an abortion may follow.

Lastly, in skill interference, during the first three months, pregnancy can be terminated

by vacuum aspiration. The feature of vacuum aspiration is that it is not harmful to the

uterus. In some developed countries electricity is used to induce abortion. They may

get an electro-cord applied to cause abortion. Uterus expelled its contents when the

current is passed. In this method, it is very difficult to detect a crime because there will

no burn on mechanical injury.108

108Id 5.63

84

In this way, when the abortion is caused by using the criminal method that is by using

drugs or mechanical violence. It’s very difficult to detect the crime or offence because

in both cases, self-induced abortion is there as well, as drug consumed by the woman

as per her own will and wish so as to prevent pregnancy. Therefore, it is very difficult

to catch the criminals and give them punishment for criminal abortion. However, this

is concerned to medical and Jurisprudential aspect of abortion. As per above

explanation it has cleared that, causing abortion is not safe for health of woman but still

they perform it. The Government of India and other countries legalised it by considering

all the repercussion of abortion on woman health. Therefore, following are the reason

for liberalisation of Abortion Law.

4.4 LIBERALIZATION AND LEGAL HISTORY OF

ABORTION LAW:

Modernization tremendously increases the use of medicine and technology. It also

modernizes the method of surgery in operation which results into illegal abortion. The

Abortion Law was firstly codified in England. It was specifically mentioned in the

enactment, that person who performed or caused to be performed abortion by illegal

way shall be punished under law. It has also mentioned that the person who performed

abortion of quick unborn child then he should be punished with death imprisonment.

later the Act was amended and death penalty was abolished for performance of illegal

abortion.109

Soviet Russia was the first country to legalize abortion on the demand and request of

woman. Due to this Abortion Law in 1925, 70% of abortion performed with the help of

trained Doctors, not by home mate servant. But this facility did not prove helpful to the

rural woman because it was not possible for them easily to access Doctors. Again in

1936 Soviet Russia made abortion illegal due to increase of population. In this way,

time to time there was fluctuation of legalization of abortion.

From centuries ago there was history of woman helping each other for abortion. In 18th

and 19th century Europe, provided trained woman for abortion without prohibited by

109Healthypattern.com last visited 13.12. 2014

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Law. In 19th century Britain, passed Anti-Abortion Law and made abortion illegal,

except to save life of woman. But the problem raised in US society because they are the

protector of Woman Empowerment and to pass Anti-Abortion Law was against right

of woman to enjoy their own body. Hence, it was criticized by them by arranging

different, campaigning and demonstration against the Government as well as Juries also

refused to punish them.110

To commit abortion is itself an offence and sinful act due to many reasons. In middle

of 19thcentury on humanitarian grounds the Liberal view for this criminal activity

increased. Because at that time the method used for abortion was not skilled method

and it seriously affected on health and body of woman. But at that time, on one hand,

these all legal liberalizations of abortion protected woman’s health from danger or

annoy caused by abortion, whereas on the other hand, it takes away the right of child

bearing function from woman.

Therefore, in 19thcentury Anti-Abortion Law has created impression that it is against

the motherhood and natural rights of woman. In this time only medical profession was

tightening their hands in the field of abortion with the help of Middle woman or

midwives. Under the name of legal abortion, they used to perform several abortions.

After sometime they started the practice to abort child, by determining sex under the

garb of legal practice. In this way in middle of 19th century this plant of abortion grow

up and now it has been converted into a big tree. As result, nowadays we are taking

fruits of it in the form of ‘Female Foeticide’.111

4.5 EFFECT OF LEGALIZATION ON ABORTION:

Decision given in Roy v. Wade112empowered woman to abort their own child with their

sweet will and it created victory in favour of woman. After this decision, woman can

legally abort their child and therefore illegal, or self-induced abortion became a thing

of past. Hence, legalization of abortion improved and enhanced the Technique of

110www.byrne.cps.k12.il.us last visited on 22. 05. 2015 111http://www.feminist.com/resources/ourbodies/abortion.html 112410 U/Sec 113 (1993)

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abortion. This legalization of abortion had showed its adverse effect like some

commercial clinics hired feminist social worker to deal with the woman who wanted to

do abortion. This legalization of abortion has made abortion easily accessible and less

expensive also. The effect of this was that, it was directly cause danger to life of woman

due to frequent abortion. The multiple scholars at that time were of the view that,

legalization of abortion adversely effect on the health of the woman as well, as it

automatically increases ‘Female Foeticide’. In this point researcher has also explained

the legalization of abortion in various countries which is as under.

4.6 INTERNATIONAL SCENARIO OF ABORTION:

Now a day around the whole world, struggle has started to maintain equality between

right of pregnant woman in respect of her body and right of foetus in mother womb.

Following are some countries which always tried to make different policies for

Abortion Law and also protect right of foetus so as to curb the menace of ‘Female

Foeticide’. These countries are as follows:

a. Canada:

In Canada after 1988 abortion became legal and at any stage of pregnancy due to any

reason. Therefore, in Canada the Supreme Court held that, law against abortion is itself

unconstitutional one, because it violates right to privacy of woman.it also mentioned

that provincial health insurance covers all the abortion cost by policy but, it does not

cover abortion performed freely in charitable clinic. In this way in Canada abortion is

legal one, though it performed on any grounds.

b. Mexico:

Abortion Law in country of Mexico is different from state to state. In 2007, the Mexico

was the first country which legalized the abortion within 12 weeks of pregnancy, and if

the child is aborted after 12 weeks, then it became illegal one. After making such law

in Mexico, the Mexican Catholic church and people opposing to the law of abortion

challenged it in court of law. The Supreme Court of Mexico in 2008 upholds the validity

of Abortion Law.

87

c. Brazil:

In Brazil, the abortion is legal in three circumstances that in case of rape or sexual

assault, when there is any danger to the life of mother and third is danger to the life of

incest. Many women due to this rigid law illegally aborted their child and this number

is more than two Lakhs.

d. Columbia:

In 2006 abortion was sin in the state of Columbia, but after 2006, the Columbian highest

court of appeal held that, the abortion is legal in three circumstances when pregnancy

of woman is due to victimization of rape, danger to the health of woman and pregnancy

involving with abnormality of child. In these three circumstances only abortion can be

performed. But this judgment and rule was strongly opposed by supporter of abortion.

Then there after in 2006, 11-year girl pregnancy which was aborted, caused by rape.

Illegally, near about three Lakhs children each year aborted in Colombia.

e. Germany:

In 1995 in Germany abortion has been made illegal. In certain circumstances only,

abortion is permitted within 12 weeks of pregnancy that is when pregnancy caused due

to rape. But in case of rape or sexual assault, neither the Doctor nor mother, prosecuted

for commission of illegal abortion. Similarly, if the woman does not want to continue

the pregnancy then also she can abort, but subject to condition that abortion should be

performed within first trimester. In other circumstances like if, continuation of

pregnancy effect on the mental health of woman or by considering physical health of

woman abortion is also permitted in Germany.

f. Great Britain:

In Great Britain abortion legalized in each and every condition and women were free

to abort their child without any prohibition. This abortion can be subject to restrictions

that; it should be certified by two physicians with certificate issued by them with reason

for aborting a child. It is also mentioned that abortion can be performed without

certification of two Doctors If, continuation of pregnancy is harmful to the mental or

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physical health of woman or it caused serious abnormality to the child or to save the

life of mother but, within 24 weeks of pregnancy. In Great Britain, every year, near

about two Lakhs abortion are performed without any prohibition of law.

g. Greece:

In State of Greece abortion is legal since 1986 to till today. Within 12 weeks of

pregnancy any time, woman can abort her child, whereas in case of rape or pregnancy

of minor girl, it can be terminated within 19 weeks of pregnancy. Abortion can be also

performed within 24 weeks of pregnancy, if there is reason of abnormality after delivery

of woman. So in Grease in every aspect abortion is free and legalized.

h. Ireland:

In Ireland as per the enactment, the offences against person Act 1861 which completely

banned abortion. Due to this situation, many women travelled to Great Britain to

perform abortion. In one example, in Ireland, the 14 years’ girl travels to Great Britain

to terminate her pregnancy which was caused due to rape. First time, in the world

history, in 1983 abortion is banned completely without any exception, and is

unanimously accepted by a constitutional sanction with amendment which strengthens

this restricted Abortion Law by establishing a Right to life of foetus. In this way, firstly

in country of Ireland under the principle of protection of Right to life of foetus the

abortion was banned completely and successfully.

i. South Africa:

In South Africa since 1996 abortion has been permitted without any restriction within

the first trimester of pregnancy on the ground of risk to the physical and mental health

of woman or if continuance of the pregnancy caused socio economic instability in the

life of woman or if the pregnancy is caused due to rape or incest. But after 20 weeks,

the pregnancy is not allowed to terminate unless and until there will be any kind of

apprehension of injury caused to the health of the woman or child during pregnancy.

Before 2008 in South Africa, this law related to abortion and restrictions thereupon was

89

relaxed by the Government and allowed all the Doctors, midwives and nurses to

perform abortion. But till today, there is no law to completely ban illegal abortion.

j. Iran:

Since 1979, after Islamic Revolution abortion has been illegal in Iran. There is no any

exception to this prohibitory law in Iran. But generally in this country, all acts those are

performed for the protection of life of person are exempted from every prohibitory law.

Under these circumstances only, abortion is also exempted in certain situation when

there will be any kind of risk of health of woman or to save the life of woman.

Therefore, it is clear that in Iran abortion is completely illegal. In 2005, the Iranian

Parliament has passed combating measure for allowing abortion within four months of

pregnancy, if there will be fetal impairment or pregnancy would create economic

burden on family. But thereafter, the Iranian Guardian Council has cancelled this

measure passed by their own parliament.

k. China:

In China, abortion can be exercised freely, without any restriction and prohibition and

without any limitation of time. It means that any woman can abort her child any time

during the period of whole pregnancy. But, sex selection abortion is completely banned

in China. The Chinese Government one child policy criticized by many luminaries on

the basis that, this policy is only reason for increasing rate of ‘Female Foeticide’ in

China. Because, this one child policy encouraged couples to choose child, either a son

or daughter and as a result of this, most of the couple choose sex of the child and they

want a boy. Therefore, in China today’s situation is that, behind every 120 boys there

are only 100 girls. Human Right Commission has criticized this one child policy of

China to control growth of population and make the abortion compulsory and

mandatory which increase automatically sex selection abortion. But now a day the

Chinese Government is also thinking to change this Abortion Law and to remove the

one child policy because day by day it increased ‘Female Foeticide’ in their country

and as a result which adversely affects the sex ratio of the country, which apparently

showed that woman in China is lesser than men as compared to other countries.

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l. Japan:

In 1948 in Japan the Eugenic Protection Law has been passed which promote liberal

policies for abortion with intent to protect health of the woman and population control.

Eugenic protection law it means that, pregnancy can be terminated on the ground of

risk involved with the health of Child or woman. Thereafter, in 1996, a Japan omitted

all the Rules Regulations of this law and established new legislation with rule that any

woman can abort a child within 24 weeks of pregnancy so as to save life of mother and

to protect mental and physical health of woman. It can also allow abortion in case of

rape and other social economic reasons.113

m. India:

In our country abortion is also allowed during first 20 weeks of pregnancy where

mother’s physical or mental health is at risk or in case of rape or abnormality or any

other social economic reason. But in India abortion should be performed by two

registered medical practitioners only within 12 to 20 weeks of pregnancy. After

enacting the Abortion Law in India, sex selection abortion continuously increased and

therefore in 1994 Indian Government enacted separate, prevention of sex selection Act.

Because, the legalization of abortion, sex selection abortion tremendously increased in

society and as a result of this ‘Female Foeticide’ is frequently committed in all sectors

of Indian community for son’s preference. Hence in India to combat the peril of ‘Female

Foeticide’ restricted abortion by inserting certain prohibitory measures in Abortion

Law. But till today in India it’s very difficult for Government to control the ‘Female

Foeticide’ in spite of declaring different policies for the girl child.

In this way as per the above national and International scenario, it has cleared that,

abortion can be legalized in some countries and it is banned without any exception in

other countries. But still, to abort a child on the basis of sex selection is illegal in each

and every country. Therefore, it is most important to state here that to abort a child by

selecting sex of the child it is against Human Rights as well, as natural rights of foetus

113http://www.pewforum.org/2008/09/30/abortion-Laws-around-the-world/ retrieved on 17.09. 2015

91

in mother womb. Hence in this context the researcher has discussed the Human Right

of foetus.

4.7 ABORTION AS A HUMAN RIGHT:

Human Rights are those rights which are given to every human being by nature. Nature

gives some right to human being since from inception, and that rights are called as

Human Rights, and are also available to all the persons without any discrimination. The

most important Human Right is Right to life and no compromise is made with this right.

All we can say that these rights are not alienable. As per Article 6(1) of International

Covenant on Civil and Political Rights prohibits to take away life of any person is

arbitrary manner. But every time on International level this issue of ‘Human Rights’

and ‘Abortion’ in dispute, with other disputed rights of woman.

It is universally accepted that, every mother is having right over her own body and

therefore she is having right to abortion. But this right of abortion should be maintained

with the rights of foetus in mother womb. As the researcher has already discussed that

earlier the abortion was not permitted in society and termination of pregnancy meant to

be the murder of foetus and it was against rule of almighty God. But after 1973, when

Roy v. Wade114 decision of US Supreme Court came out it, was clear that woman’s

‘Right to Abort’ is a Fundamental Right to privacy.115

In most of the countries this right of woman to abort their own child has restricted by

law. However, in some of the state legal and safe abortion permitted in the situation

when pregnancy caused by rape, continuation of pregnancy involved a risk to the mental

or physical health of woman or incest.116 Therefore woman organization and some

NGOs from several decades fought for the safe and legal abortion as well, as a right of

mother to abort a child. This issue also supported by International Human Rights

commission, but when the point of Human Right is there the issue of life of foetus

automatically run parallel with right to abortion of woman. Hence the researcher in this

point has explained about the Human Rights and abortion of woman as follows:

114410 U/Sec. 113 (1993) 115http://www.leggalseviceindia.com/articles/adp_tion.htm 116https://www.hrw.org/news/2005/06/15/qa-human-rights-Law-and-access-abortion#_Right_to_life

92

a. Woman’s Right to Abort:

As an individual entity woman also having right of her body as of life, liberty, and to

do anything with her body is her sole right, vested with her. Therefore, she can do

anything which gives her happiness, and if that happiness gets to her by abortion than

she can do it. No one is having right to take this privileged from her. This right is called

as reproductive rights. Reproductive rights are Internationally recognized as critical

both to advancing woman’s Human Rights and to promoting development. Even

Government of each country acknowledged that, reproductive rights, is provided to

every woman with unprecedented degree. Hence, the woman having right to abort a

child, but subject to reasonable restriction such as if, continuation of pregnancy

involved a risk to the life of pregnant woman or if it caused grave injury to mental or

physical health or if there is risk of abnormality of child or if there is emergency, then

with the help of registered medical practitioner the pregnancy can be terminated. Even

if the pregnancy caused by rape or incest it can also be terminated. Thus it is woman’s

Human Right to abort, but with the prohibition and reasonable restrictions.117

b. Human Rights and Abortion:

No country all over the world interprets Abortion Law as point of issue of basic Human

Right. Even in famous ruling of US Supreme Court in Roy v. Wade the court

emphasized on right of abortion of woman but did not directed this right as basic Human

Right. Around all over the world every Government declared their central policies for

protection and promotion of the rights of woman but still not definitely recognized basic

Human Rights. Most of the woman in all over the world are subjected to cruelty,

starvation, discrimination and much other gross violence just because they are females.

If these offences are committed against any other group of people, then it would be

quickly considered as gross violence and also violation of basic Human Right. But this

will not happen in case of woman. For each and every right they have to fight and then

only that rights will be recognized for them.

117http://www.leggalseviceindia.com/articles/adp_tion.htm

93

Therefore, abortion is first and most important Human Rights issue as related to woman.

However, to compel the woman that, not to abort child and to continue the pregnancy

or vice versa to abort a child and not to continue pregnancy or limit the child is against

her reproductive rights as well as disgraceful and insulting to her. Hence, no

Government by making law takes away a right to abortion from woman because it is a

Human Right of her own body given by nature to her.118

Therefore, so far as right to abortion as a Human Right of woman is concern, it is clear

that, woman is having Human Rights to abort, but when ‘Right to life of Foetus’ came

into consideration, then it is clubbed with Human Right of foetus in mother womb. Thus

in this research researcher has studied both views that is, ‘Human Right of mother to

abort foetus’ and ‘Right to life of foetus as a Human Right in mother womb’.

c. Right to Life of Foetus and Abortion as Right of Mother:

Anti-Abortion Law obviously created restriction on Right to life of woman. It is evident

from fact and circumstances that restrictive Abortion Law, not only turned woman

towards unsafe abortion, but also most of woman died due to this abortion practice. The

UN Human Rights Committee and Committee on Elimination of All Forms of

Discrimination against woman always showed their concern towards restrictive

Abortion Law and Right to life of woman to abort child. The committee always

suggested that there should be some specific law which will maintain balance between

both these things. But supporter of restrictive Abortion Law always said that a ‘Right

to life’ of foetus prevailed over Human Rights of woman to abort a child. Most of the

International instruments are salient on the point of Right to life of foetus begins from

conception. However, most of the International treaties, declaration, International and

regional jurisprudence supported the view that ‘Right to life’ does not begins before

birth but, it starts after birth only.119

118www.aic.gov.av/media_library/publications/proceedings/16/holmes.pdf 119https://www.hrw.org/news/2005/06/15/qa-human-rights-Law-and-access-abortion#_Right_to_life

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d. Right to Take Care of Health:

When there is a lack of legal and safe abortion system then obviously there will be

arising health problem and health issues related to woman. Restrictive Abortion Law

definitely effects on health of woman by turning them towards unsafe abortion. The

UNO who is working for protection and promotion of right to health of woman, it is of

the opinion that, there should be some liberalization in Abortion Law, so as to protect

the health of woman. Actually, ‘Abortion’ is not so expensive method at an earlier stage

when it can be removed by using pains or vacuum method. It is a more complicated in

later stage and then it can affect the health of woman. However, the restrictive Abortion

Law may definitely effect on rights of health of woman and hence it violates Human

Right of woman at large.

e. Right of Equality Vis-a-vis is Rights Against Discrimination:

To get easy and less expensive abortion service from any state is right of woman and it

is also part of equality. Generally, woman compromise more things as compared to men

after they have children. Hence, to compel woman forcibly to continue pregnancy that

put them into more harassment and disadvantages, consequently it is against Human

Rights. The UNO in the declaration of elimination of all forms of discrimination against

woman, specifically stated that, denial of providing medical treatment to woman on the

basis of restrictive law is against principle of equality as well, as it is a form of

discrimination when she is in need. Therefore, a restrictive Abortion Law is against

equality principle and it caused discrimination against woman.

f. Right to Liberty and Security:

So far as liberty and security is concern it is rights of woman, whether to continue the

pregnancy or not. But, by creating restrictions through law, obviously Government

curtail the liberty of woman’s as regarding her own bodily right. By creating deterrent

effect in the mind of woman related to medical facility or report to police station for

illegal termination of pregnancy on illegal abortion, it has curtailed the liberty of

woman to take care of her. Therefore, restrictive Abortion Law is against a right to

liberty and security of woman.

95

g. Right of Privacy:

‘Privacy’, this word connotes personal thing or personal rights. Parenthood is

completely a personal thing and no one is having right to interfere with personal

decisions of any couple to have children or not. Hence if any woman is pregnant, then

it is up to her to abort a child or to continue the pregnancy and no one can compel any

woman forcefully to abort a child or to continue pregnancy. Therefore, sometime this

abortion treatment carried out for safety of life of woman or some other reasons, but

under compulsion of law compel any Doctor, who performed abortion to disclose that

information to other is against the right to privacy of woman and also a gross violation

of Human Rights.

h. Restricted Number of Children:

It is right of every woman to have a number of children, whatever she wants and spacing

between children. To restrict woman from making number of children and also put

spacing between two children amount to violation of her Human Right given by nature

as reproductive rights. If any State wants to make restriction on woman’s reproductive

rights, then they have made available all the measures for safe and healthy abortion

system. Then and then only it would not effect on health of woman and this view is also

supported on an International level. Generally, the woman perform abortion because

they want certain spacing between their children or if contraceptive, failed or pregnancy

caused due to rape or incest. In this situation Government should make necessary

arrangement of abortion without any restriction. But if law created any restriction or

preventing them from doing abortion, then it violates Human Right of woman.

Therefore, to restrict the number of children without any cause is gross violation of

Human Rights.120

Overall as per above point it is clear that, to restrict the woman from abortion is grave

violation of Human Rights. But all International instruments are silent about the rights

of foetus in mother womb. The International jurists who framed International Bill of

rights said that, the ‘Right to life’ of foetus is available to foetus, no doubt, but it is not

120ibid

96

from conception itself. Therefore, here it is necessary to maintain balance between

rights of woman to abort child and Right to life of foetus. As above rights it is clear

that, pregnant woman is having right to abort a child as a Human Right and it is well

recognized by all International Instruments. Most of the International Jurists are of the

view that, Right to life as a Human Right begins after human being is born alive and

not before that. Hence, there is no question of Right to life of foetus. History of

International Instruments and Bill of Rights proposed interpretation of ‘Right to life’

that, it is available from conception, but most of the Government of states rejected these

proposed interpretations and are not ready to support the opinion that, the Right to life

available from conception. However, American Convention on Human Rights is the

only International Instrument which is fully accepted the view that Right to life also

available from conception, but even this right is not an unqualified manner. 121

Therefore, now it is clear that, abortion is a Human Right of woman and to restrict these

rights is completely against natural rights of woman on her body. As, if anything will

go wrong in society, we are trying to remove it or to find out the way to prevent it. But,

here in this case, though abortion is legalized by Government to stop illegal and unsafe

abortion still woman abort their child frequently. Now a day, we know that, after

legalization of abortion women are adopting illegal way to abort child and it’s directly

affecting on health of woman. But the adverse effect of this abortion system is that,

woman may be forced or under undue influence, abort their child after sex selection by

using advent technology and it increase ‘Female Foeticide’. Thus, now it is very

difficult on National as well as International level to protect Human Rights of woman

as to abort a child and on the other hand to protect life of foetus in mother womb.

Hence researcher in this research has discussed the legal provision of Medical

Termination of Pregnancy enactment to clear the provision of legal and illegal abortion

and also to clear the idea about when the child can legally be aborted without any

restrictions, which is as follows:

121ibid

97

4.8 THE MEDICAL TERMINATION OF PREGNANCY:

Liberalizations of abortion under Medical Termination of Pregnancy Act have been the

resultant effect of population explosion because it concerns the foundations of social

structure. As early as 1971 it dawned upon the Government of India that a problem of

such a giant dimension calls for nothing less than complete, social redirection. At the

same time, it was realized that any negligence in this regard may prove to be a palpable

danger if, the population is irrationally narrowed down and forced into remedial

quackery. It would not be out of place to mention that planners have pleaded in this

regard that, any population policy must work itself into the whole fabric of social and

economic life and must interpenetrate and be interpenetrated by all other measures of

social change.122

It was felt that high rate of growth of population constitutes an important constraint on

progress and development of the country. It registers an adverse effect on domestic

savings and scuttles the pattern of growth as needs of sheer subsistence have to be given

a greater weight. Perhaps the conditions like these called for emphasizing that the

objectives of stabilizing the growth of population must be at the Centre of planned

development. For the same reason family planning has been described as not being

designed to destroy families, on the contrary it is designed to save them. So far as the

Medical Termination of Pregnancy is concerned, its support described it not to be anti-

Babuism, but desires that meaningful decisions should be taken regarding having a right

child at the right time. Which can be achieved, provided the health of the mother is

taken care of, a genetically deformed child is got rid of to mitigate human suffering,

and unwanted pregnancy that has been caused on account of sex crime imposed on a

woman is done away with. Also the Act, desires to give control to woman over their

bodies, in order that they may freely decide whether or not to bear the child because

pregnancy under the Act can be terminated only with the consent of the pregnant

woman. But the fact remains that it intends to encourage reduction in the rate of

population growth by permitting termination of an unwanted pregnancy on the ground

of failure of contraceptive device. As a result, the family planners rightly describe it as

122Lalita Dhar Parihar, Woman empowerment from impoverishment to empowerment- a critique, first

edition, Eastern book Publication, Luknow, p.368

98

a measure to control unprecedented rise in population, to which the Government did

not subscribe when the Bill was presented in Parliament. The Government rather denied

of any nexus between family planning programme and the Medical Termination of

Pregnancy Bill, only to ensure its smooth passage in Parliament. In this way the bill for

Medical Termination of Pregnancy passed in parliament without any dispute. Following

are the main objective behind enacting this law by the parliament:

1. Object of the MTP Act:

The main object of this enactment is to save life of pregnant woman or to save her from

any physical or mental injury caused due to continuance of pregnancy. This Act is in

consonance with Article 21 of Indian Constitution rather than conflict with it.

Therefore, we cannot frame two opinions about the Right to life of foetus and its scope

under article 21 of Constitution of India, as the pregnant woman’s life is at risk if, there

involve some complications in the continuance of pregnancy. So, it can be well settled

that in order to protect her own life she can terminate the pregnancy which is dangerous

to her health. Hence this Act has enacted by legislator with sole purpose to protect the

life of pregnant woman.

2. Grounds for Termination of Pregnancy as per Act:

As per the provisions of this enactment pregnancy can be terminated by registered

medical practitioner in good faith on the ground that continuance of pregnancy would

involve a risk to the life of the pregnant woman or cause physical or mental injury to

her health or the child which will be born, he would be suffer from abnormality or

handicapped. As per the explanation of the provision it said that if the pregnancy is

caused by sexual assault like rape it amounting to grave mental injury and physical

injury to the health of woman therefore, it can be terminated. Again, it said that if;

pregnancy occurs due to failure of any device use or by woman or her husband for the

purpose of limiting the number of children that is failure of contraceptive then also,

pregnancy can be terminated on legal grounds of unwanted pregnancy.123

123Section 3 of the MTP Act.

99

This Section also mentioned that, pregnancy can be terminated by registered medical

practitioner within 12 weeks of pregnancy, but not more than 20 weeks. And it is

specifically mentioned that if, the pregnancy exceeds 12 weeks but within 20 weeks,

then it should be terminated by two registered medical practitioners in good faith by

considering health of woman. This issue of termination of pregnancy is not first time

handled by Medical Termination of Pregnancy Act; it has also been discussed

previously in Indian Penal Code under Section 312 and 315. Under these Sections the

termination of pregnancy is protected by considering it as a miscarriage if, it is done in

good faith for the purpose of saving the life of woman. Similarly, Section 315 protects

any act done with the intent to prevent child from being born alive or causing it to die

after its birth if such act has been done in good faith for the purpose of saving the life

of mother.124

However, on the other hand, it is specifically stated in object and reasons of this Act

that, provisions of Penal Code for abortion was framed by the British Law about a

century ago. Abortion is not only a crime but also it is punishable under penal code,

except, it had to be induced to save the life of pregnant woman. But now, situation had

changed. Most of the woman, who have under gone abortions, are married woman and

there is no room for any reason to conceal their pregnancy from other, only for the

purpose of family planning they have used a way of abortion to terminate unwanted

pregnancy, and it is not a crime. This criteria, was not considered at that time by British

Law therefore to control unmarried woman from illegal abortion they have made such

stringent legislation which is not useful now. Hence this separate MTP Act framed by

the legislature to remove the lacunas of penal provision, which is not mentioned about

when the pregnancy can be terminated legally by medical practitioners.125 Even, the

court also considered that the Act and the provisions, particularly complaint, cannot be

said to be invalid and no case can be made out for interference by the court. Therefore,

the researcher in the below points has explained how the Apex Court interpreted and

enhanced the scope of Section 3 of MTP Act.

124V. Prabhakar, Law relating to prenatal and Sex Determination, Kamal Publishers, New Delhi, ed.

2014, p. 143 125ibid

100

3. Scope of Section 3 of MTP Act:

a. Provisions of the Act does not deal with Sex Selection:

This Act is an Act to provide for termination of certain pregnancies by registered

medical practitioner. The statement and object of the Act specifically stated that, when

the continuance of the pregnancy caused harm to the mental or physical health of the

woman or if the pregnancy caused by sexual assault like rape, then the pregnancy can

be terminated. It means that, it does not deal with sex selection abortion before or after

conception. Section 3 (2) of MTP Act and its Explanation-II stated that two registered

medical practitioners can terminate the pregnancy if, it is caused due to failure of

contraceptives or on the ground of risk to the health of woman but, it must be

remembered that termination of pregnancy under this Act is not promoted termination

of unwanted sex of foetus, though, the sex could be male or female foetus. Therefore,

the Act does not deal with sex selection.

It has rightly held by the Apex Court in case of Vijay Sharma v. Union of India126 that

the MTP Act does not permit the sex selection test. The fact of the case is that, the Writ

Petition filed by Mr. Vijay Sharma and other challenging the validity of PCPNDT Act

by saying that, it is violating Article 14 of the Constitution. The fact of the case is that,

the couple was married couple having two female children and they were desirous to

having a male child. According to them if, they have a son and a daughter, then they

can enjoy love and affection of both children of opposite Sex and their daughters can

also enjoy company of their brother in future. Therefore, it was contended by them in

court of Law that the couple, who is having children of same-sex they should be allowed

to determine the sex of child by using ultra sound Sonography Technique, so that they

can give birth to opposite sex child. It means that, if they are having a girl child then,

they can get male child. It was further argued that, under provisions of MTP termination

of pregnancy is allowed under certain circumstances. Hence, there is no reason to

impose a ban on sex determination test at preconception stage. A new and different play

assert in this petition by the petitioner that if, they mental harassment caused by

unwanted pregnancy is recognized as a ground for termination of pregnancy in MTP,

1262007 (a) LJSOFT (URC) 2, AIR 2008 Bom 29

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then why in PCPNDT Act if, mental harassment caused to woman who conceived a

female or male child for second or third time is not a ground for termination of

pregnancy? Therefore, it is a violation of Article 14 of Constitution because there is

discrimination made by two enactments related to woman in similar situation.

In this case the Honorable High Court after going through the provisions of MTP as

well, as PCPNDT Act interpret object and reason of both Act and held that, there is no

relation between these two legislative enactment. Both are completely different from

each other and we cannot club them with each other because object of both the Act are

different one.

In The MTP Act, the termination of pregnancy permitted, if it would harmful to the life

of woman, or to save the life of woman within 12 weeks’ pregnancy. But in PCPNDT

Act, it completely prohibits the termination of pregnancy on the basis of sex selection.

Therefore, MTP Act does not deal with sex selection before or after conception. In MTP

Act to save the life of the woman, pregnancy can be terminated but in The PCPNDT

Act prohibit the termination of pregnancy on the ground of sex selection of foetus. Thus

in this case the Apex Court rightly held that, it is not at all violates Article 14 of the

Constitution. Because the mental harassment caused to woman who does not want a

child of particular sex cannot be equal with mother who want to terminate the pregnancy

not because of sex of the child, but for other circumstances. In this way honorable

Supreme Court enhanced the scope of provisions of MTP.

b. Termination of Pregnancy in Respect of Mentally ill Woman:

Generally, the pregnancy can be terminated by registered medical practitioner when it

involved risk to the life of woman or substantial risk to the life of woman, if the child

were born.127But in this Section there is also an exception that when the pregnant

woman is below 18 years of age or is mentally ill person the pregnancy can be

terminated, with the consent of guardian of mentally ill woman.128

127Section 3 (2) (b) of MTP 128Section 3 (4) (a)

102

c. Unwanted Pregnancy:

Unwanted pregnancy and unwanted child are two different things. Unwanted pregnancy

can be caused by failure of contraceptives, sexual offences or illegal sexual intercourse

etc. but unwanted child it means that couple wants some other sex child for example if

they are having the female child then, they want male child. Unwanted pregnancy can

be terminated as per law or it is permitted by the law but you cannot terminate

pregnancy on the ground of unwanted child. It is well explained by the court with

landmark judgment, State of Punjab v. Sivaram129in this case the court held that, merely

because a woman having undergone a sterilization operation and thereafter became

pregnant and delivered child, it does not mean that the Doctor is held liable for the

compensation on account of unwanted pregnancy of unwanted child. If, after

sterilization operation, it failed and woman carried out pregnancy, in that situation, it is

up to the couple that either to terminate the pregnancy or to continue it. If the couple

accepted second view that to continue the pregnancy, then unwanted child became a

wanted child. Therefore, the couple cannot claim any kind of compensation for

upbringing of that unwanted child. It has further stated that, surgeon cannot be held

liable unless the plaintiff alleges and proved that the surgeon had assured hundred

percent exclusion of pregnancy after the surgery. Thus, if the child born after failure of

sterilization operation, it is not said to be unwanted child. In this way Supreme Court

has rightly differentiated between unwanted pregnancy and unwanted child. It means

that if, unwanted pregnancy is terminated by registered medical practitioner without

proper cause then it is punishable, but if the pregnancy is unwanted due to failure of

sterilization operation, then the couple not having right to claim compensation from

medical practitioner for unwanted child.

d. Termination of Pregnancy caused due to Rape:

If the pregnancy caused due to rape or sexual assault, then the termination of pregnancy

is allowed under the provision of MTP.130 in case of V. Krishnan v. G. Rajan alias

Madipu Rajan131the court held that, pregnancy can be terminated with the consent of

129(2005) 7 SCC 1: AIR 2005 SCC 3280 130Section 3 (2), explanation- I 131(1994)1 mad LW (Cri) 16

103

pregnant woman, if the pregnancy was caused by rape, and if the rape is alleged by

pregnant woman then the court shall bound to presume that, there would be a mental

harassment to the woman which effect on mental and physical health due to the sexual

assault. Therefore, MTP Act also permitted to terminate the pregnancy in case of rape.

e. Place of Termination of Pregnancy:

As per the Act, pregnancy can be terminated in Government hospitals or places which

have been approved by Government for this purpose at district level.132 But there is one

exception, which said that Sections 3 and Section 4 shall not apply in certain cases when

pregnancy is terminated by two registered medical practitioners at a place which is not

approved by the Government but if, the medical practitioner have opinion that it was

an emergency to terminate the pregnancy to save the life of woman. In this situation the

point of proper place or approved place does not arises.133

However, Section 5 also prescribed certain kinds of punishments in following cases

under the provisions of MTP Act.

f. Termination of Pregnancy by Non-Registered Medical

Practitioner:

The provision said that if the pregnancy is terminated by medical practitioner who is

not registered then he shall be punished with two years’ imprisonment, which may be

extended to 7 years and which is not mentioned in IPC.134

g. Termination of Pregnancy, other than Section 4:

Section 4 said that, pregnancy can be terminated in a place which is recognized and

approved by the Government as Hospitals and places to terminate the pregnancy.

However, if the pregnancy is terminated in other than these places which are not

approved by the Government then it shall be punished with two years’ imprisonment,

132Section 4 133Section 5 134Section 5 (2)

104

which may be extended to 7 years. Therefore, place of termination of pregnancy is also

very important for the determination of punishment.135

h. Owner of the Place Liable for Punishment:

The owner of the place it means that institution or place of working of hospitals which

are not recognized as a place of termination of pregnancy then the owner or head of the

institution is also liable for punishment of 2 years’ imprisonment, which may be

extended to 7 years.136

In this way the MTP Act makes the provision for legally termination of pregnancy in

which section 3 is very important, which define and explain grounds for termination of

pregnancy, and also explained certain exception for this. For effective implementation

of MTP Act Government has also enacted some rules and regulations for the Medical

Termination of Pregnancy which are as follows:

4.9 THE MEDICAL TERMINATION OF PREGNANCY

REGULATION, 2003

The powers given under Section 7 of MTP Act to enforce those powers this Medical

Termination of Pregnancy Regulation 2003 has enacted by the Government. It

contained that every registered medical practitioner who terminate the pregnancy

should within three hours certified the Form-I.137

It is also mentioned that after completing Form-I, it is a duty of every medical

practitioner that to seal the ‘Form’ into an envelope which should contain opinion of

medical practitioners for termination of pregnancy as well, as details of pregnant

woman, as per Section 3 and 5 of the MTP Act. Therefore, it is a primary duty of every

medical practitioner who terminates the pregnancy shall seal the Form-I into envelope

and send it to the Government and Chief Medical Officer. If it is not possible, then it

has to keep into safe custody. It is further mentioned that the envelope shall contain the

135Section 5 (3) 136Section 5 explanation -I 137Regulation 3 of MTP Regulation Act 2003

105

name of the registered medical practitioner who terminate the pregnancy as well, as

name and detail of woman whose pregnancy terminated and it should be marked with

name ‘SECRET’138.

Furthermore, in this regulation it is specifically mentioned that head of the hospital or

institution or owner of the approved place shall maintain a registered in Form-III.

Details of termination of pregnancy of woman shall be kept safe for five years from the

date of entry.139

4.10 THE MEDICAL TERMINATION OF PREGNANCY RULE

1975:

This Rule is implemented by the Central Government with an objective to enforce

Section 6 of MTP Act following are some important Rules:

a. Training and Experience of Medical Practitioner:

It is mentioned that every registered medical practitioner who wants to terminate the

pregnancy should have experience of training in Gynecology and Obstetrics, for a

period of not less than three years.140

b. Recognized place for Termination of Pregnancy:

The Government shall not have approved any place as a place for termination of

pregnancy, unless in the opinion of the Government that the place is safe and hygienic

for such work. Government shall also have considered some facilities at the time of

approving any place as a place of termination of pregnancy like availability of operation

table, instruments for operating patient, and anesthetic instruments and sufficient drugs

etc. after examining all these things Government certified place as approved place for

termination of pregnancy.141It is further mentioned that, after issuance of certificate of

138Regulation 4 of MTP Regulation Act, 2003 139Regulation 5 140Rule 3 of MTP Rule, 1975 141Rule 4

106

approval. It is duty of owner or head of the institution to display that certificate at

conspicuous as part of the place or institution.

c. Circumstances under which the Certificate Cancelled or

Suspended:

If it is considered by the Chief Medical Officer of the District that, the facilities

mentioned under Rule 4 are not fulfilled by any certified approved place for the

termination of pregnancy he shall report it, to the Government with detailed facts and

circumstances or defect found in that place. After considering such report, the

Government may give reasonable upper alertness to the owner of the place to be heard

and then, if satisfied with defect can cancel or suspend the certificate of approved place

at the place of termination of pregnancy.142

As per Rules, Regulations and Act of Medical Termination of Pregnancy it is clear that,

it has made specific provisions for termination of pregnancy as well, as defined

circumstances under which legally pregnancy can be terminated. But it has not at all

support the termination of pregnancy on the basis of sex selection. On the other hand,

in reality we all know that, from all corners of society objection are raised on Doctors

because, by showing ground under MTP, they legally terminated the pregnancy after

determining the sex of the foetus. It means that MTP Act as well, as new technology

misused by medical profession. So that in the last point of this chapter researcher has

discussed ‘Female Foeticide’ and its relevance to Medical Termination of Pregnancy.

4.11 ABORTION LAW AND GROWING MENACE OF FEMALE

FOETICIDE:

Nowadays ‘Female Foeticide’ is connected with rights of woman to abort a child. Some

people are of the opinion that if the right of woman over her own body not given to her,

then it violates her Human Right to life. But the question is that, whether this right over

her own body includes right to abort a child and to take away the life of one living

creature? This is really a point of discussion.

142As per Rule 6

107

From ancient India till today, there are two views regarding right of abortion of woman

or we can say that, right of woman to choose whether to continue pregnancy or not. The

group which supports the view that, Abortion is right of woman said that, woman is

fully empowered to choose whether to abort a child or to continue it. Because it is a

right of woman over her own body, and to restrict this right is against Human Rights as

well as Right to life given by Indian Constitution.

On the other hand, the Abortionists are of the view that, abortion is against the religion,

and it is against our spiritual belief because, to kill the child is against our religious

rules. So, the woman who choose to abort the child are not a good human being in eye

of God, and in the society.

Therefore, researcher at this end is of the view that though Abortion Law permitted in

specific circumstances but, today it is misused by medical fraternity as well, as couple

who are desirous as to have a male child. Hence it is need of the day to make the

PCPNDT Act so stringent and harsh, that no one can easily dare to come out of it. So

far as woman’s right over her body is concern then the answer is in affirmative means,

she has a right but, it should be come with reasonable restriction. It means she is having

right to abort in certain circumstances, but having no right to take away the life of

unborn child which is growing and normal in the mother womb. If she uses Abortion

Law to take away the life of unborn child after determining the sex then, it is not a

simple offence but we can say that it is amounting to murder.

Lastly medico-legal aspect of the ‘Female Foeticide’ is not only the Medical

Termination of Pregnancy Act is a different from the PCPNDT Act, but also to

understand in what circumstances termination of pregnancy is permitted. Abortion is

allowed on medical grounds only; it needs to study that aspect. Therefore, the researcher

has explained in detail the Medico-Legal aspect of ‘Female Foeticide’ in this chapter.

The researcher has discussed the genesis of ‘Female Foeticide’ so as to determine the

reasons that why this technology is misused by Doctors as well as society at large in

next chapter of this thesis.