A failure of ethics and legislation

August 10 1971 was a historic day in more sense than one. A path breaking legislation was enacted by Parliament called the Medical Termination of Pregnancy Act. It was supposed to herald an era which would eliminate unwanted or forced pregnancies, or going to quacks that resulted in post natal trauma.

It was also for the first time anywhere, that failure of contraception was legally accepted as a valid reason for termination of a pregnancy, irrespective of the fact that the woman was undergoing her first or subsequent pregnancy, or whether or not she had any surviving children. The consent of the woman was required in writing and a medical practitioner had to form an opinion in good faith that the pregnancy being terminated was either life threatening or its continuance would cause grave physical or mental injury to the woman. In fact, all he had to do was to tick an option on a printed form without even recording the clinical reasons for doing so. It was as simple as that. Everybody got the impression that abortion had been legalized, whereas the Act only specified certain conditions under which a pregnancy could be terminated. Most doctors, lawyers and social workers are still under that wrong impression today.

Women activists hailed this as a big step in empowering their kind. It was anything but that, as the choice to be exercised by the woman was in name only; the Act had left that choice with the medical practitioner. That the act was passed with the intent to also control the population is understandable, but this part of the Act which covered the failure of contraception was to cause devastation of such magnitude that the Child Sex Ratio(CSR) in the age group of 0 to 6 dropped sharply from 962 females per 1000 males in 1981, to 927 in 2001, that is a drop of 35 points in 20 years compared with a drop of 14 points for the previous 20 years from1961 to 1981. The rate of decline had accelerated by 150%.

Had the lawmakers envisaged this, they would have thought twice. Female foetuses were being selectively aborted in very large numbers on grounds of failure of contraception in blatant contravention of the spirit of the Act. Ultrasony arrived in the early 1980s which explains the sudden drop thereafter, though the Act itself became law in 1972. Sex could be determined anytime after 12 weeks and a simple tick or a signature in blue or black ink in an ultrasound clinic could mean a death sentence. The male child syndrome which has always been prevalent in India was now a realizable, low cost option. Advances in technology, legislation gone badly wrong, and a disregard for ethics by the noble profession together achieved for India the dubious distinction of having one of the lowest CSRs in the world.

There was no need to undergo the entire term of pregnancy as also the process of childbirth before getting to know whether it was a girl or a boy. Very convenient, very clean, very cheap. It was like a win win situation for all; the family, the clinic, the doctor and the woman who for the first time by herself or coerced by her family could actually opt for the sex of the child by repeatedly conceiving and aborting. Never mind that her mental and reproductive health was being battered in the process. There was a proliferation of clinics in the 1980s to determine sex and abort thereafter. That most of the clinics were not approved as per the provisions of the Act, and therefore illegal, did not matter; as the public perceived that abortion had been legalized. A law which was essentially passed to curb illegal abortion ended up doing exactly the opposite. The tragedy is that this has not been recognized by the government, activists and NGOs who are in this field of work.

The 2001 Census

The Census' findings of Child Sex Ratios are particularly damning. It reveals a deadly arc spanning counter clockwise from Himachal in the North to Maharashtra in the West, which has become a vast killing field. This geographically contiguous area also includes the states of Punjab, Haryana, Rajasthan, and Gujarat. UP and MP also cling to this area but to a lesser extent. One welcome observation is that every state of the North East (where under-development is wide-spread) is well above the national average and the average of every other state including Andhra which is the highest at 964 inspite of a literacy rate just above Bihar, UP and Rajasthan.

Just as there is an arc in the Northern and Western parts of the country, it has a polar opposite that extends from the South towards the East, in which the drop in the CSR is well below the national average. This arc constitutes all the Southern states as well as Orissa, West Bengal and Bihar. The major part of the killing field is the so called developed and industrialized belt where the per capita income as well as the literacy rate (except for Rajasthan and UP) is well above the national average.

The only state where there has been a positive growth in the CSR is Kerala; no surprises here, since the structure of society is matrilineal and the dominant political philosophy is Marxist even though the Congress is in power today. The ratio has increased in the last decade by 5 points to 963. West Bengal is the only state where the overall sex ratio has steadily risen over the last 40 years and has contributed positively to the Indian average.

It is estimated that had the CSR stabilized in 1981 there would have been an additional 3 million girl children in the head count taken in 2001. A study conducted on 7000 abortions recorded in Pune showed that a single male foetus had been aborted. Some studies have suggested that up to ten times the number of officially reported abortions are performed in rural areas under primitive conditions, and in unregistered clinics in urban areas. This figure is impossible to verify. This foeticide on a horrendous scale has led to the steep drop in the CSR. Translated into sociological impact, this would imply an increase in the incidence of sexual crime against women and children as also increased hostility between males leading to breakdowns in families, disorder in day to day life, forced homosexuality and a rise in the incidence of HIV. The standard text on Indian Social Problems will need substantial revision.

The legislative dimension

The problem was identified in the 90’s, when the 1991 Census showed a marked decline in the CSR. Activists and concerned organizations decided to target sex determination rather than the primary cause which was the legislation itself. This was possibly due to a misplaced apprehension that women’s rights would be affected. Unfortunately, the PNDT (Pre-Natal Diagnostic Technique) Act which was enacted in 1994 and its later versions, meant to prevent pre natal sex determination proved to be ineffective pieces of legislation.
External Link: Census of India

Beginning with an incorrect understanding of the Medical Termination of Pregnancy Act, we have travelled a long way down a horrific path, and there appears no end in sight to the carnage of the girl child. What is needed now is to re-examine the applicability of the Act in the area of contraceptive failure, and begin again with a fresh perspective. It is worth reproducing the operative section of the Act in its entirety.

WHEN PREGNANCIES MAY BE TERMINATED BY REGISTERED MEDICAL PRACTITIONERS

• (1) Notwithstanding anything contained in the Indian Penal Code, a registered medical practitioner shall not be guilty of any offence under that code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

• (2) Subject to the provisions of Sub Section (4), a pregnancy may be terminated by a registered medical practitioner :- (a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or (b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

  Explanation I - Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

  Explanation II - Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

• (3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman’s actual or reasonable foreseeable environment.

• (4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years is a lunatic, shall be terminated except with the consent in writing of her guardian. (b)Save as otherwise provided in Clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.

The Act continues hereafter with regard to the place where the pregnancy may be terminated and the need for approval. The problem is with Explanation II, the language of which actually encourages a practitioner to terminate pregnancy on account of failure of contraception. Let us understand that failure of contraception is very rare and yet can be used as an excuse to go on trying to conceive till a male child results. Studies conducted by the government as well as a number of NGOs had indicated in the early 90s that almost all pregnancies were terminated on this very ground. This should have indicated that things were going wrong.

If the state feels that a pregnancy is to be terminated as a result of failure of contraception as a population control measure or even as a matter of choice, then would it not be appropriate to have two or more surviving children before such termination takes place? The language of Explanation II states that failure of contraception may be presumed to constitute a grave injury, and not shall be presumed to constitute a grave injury as in Explanation I with regard to Rape. This implies that a doctor could refuse termination on grounds of failure of contraception unless the pregnancy was life threatening or likely to cause grave mental injury. The state had passed the onus to the medical practitioner who had to decide each case on its merits in good faith.

This discretion was not exercised, as the statistics have quite amply revealed. How can a healthy pregnancy cause grave mental injury to a healthy married woman who is conceiving for the first time or is the mother of one child unless there are exceptional circumstances? Clearly, there is need for introspection by the medical fraternity regarding sex determination as well as termination within the meaning and intent of the Act.

A small modification to this Act could resolve the issue to some extent. At the end of Explanation II, delete the full stop and add a comma followed by ‘ provided proof is furnished that at least two surviving natural or legally adopted children are a part of the pregnant woman’s family. Exceptions may be considered by recording reasons for doing so.’ This clause would only then be complete. All other clauses would remain applicable. What proof is to be furnished can be specified in the rules which are enacted subsequently. Also, there should be a stay on termination of pregnancies on grounds of contraceptive failure unless they are within the meaning of the Act and the proposed modification, else, if the law is subsequently modified, it would amount to our complicity in adding to the statistics.

This simple modification of Explanation II would have a far reaching effect in arresting this decimation of the female population. A woman would still have recourse to all the provisions of the Act even if was her first pregnancy. The restriction would be applicable as a guideline, only when the clause of failure of contraception was invoked with a view to avoid families pressurizing a woman to produce a male child as also to clarify the position of the state to all citizens including doctors. The discretion to refuse the abortion would still rest with the practitioner even if the woman had two or more children. The clarification which has been suggested in no way modifies the Act itself. Since termination on account of failure of contraception may be permitted only after two children generally and in certain exceptional cases otherwise, there would be little need to get the sex of the child determined.

This modification of the Act would primarily protect the interest of the woman as she would not be coerced either by tradition or family to undergo repeated pregnancies as has been happening for more than two decades now. Abortions conducted on a massive scale in unregistered clinics is the major problem area which needs to be addressed urgently. All legislation has completely failed. We can begin the process only by recognizing this fact. Failed laws need to be reviewed. Social reform will hopefully follow.