Legislative - Dimension

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.

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.

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 because 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.

Since it was doctors and demographers that formed the most vocal lobby in promoting the MTP Act, it was their concerns that found representation in the clauses of the Act. The Act confers a monopoly on medical opinion in matters related to the length and type of pregnancy. Accordingly pregnancies upto 12 weeks require the authorization of one doctor, while those between 12 and 20 weeks need the opinions of two doctors. Given the context in which the Act was passed, the 1971 MTP Act legalizes and regulates medical practices related to abortion but fails to provide women with the means to control their reproduction.

One of the clauses states that an MTP may be conducted where any pregnancy occurs as a result of failure of any device or method used by any married women or her husband for the purpose of limiting the number of children. This makes it quite clear that the state would be happy for abortion to be used as a means of population control. It is also interesting to note the specification of the term 'married woman'. This locates pregnancy within the context of marriage, thus incorporating cultural notions of chastity into the Act. Although, legally, unmarried women are not denied access to an MTP, social sanctions against pre-marital sex may take the form of doctors' censure or even refusal to perform an abortion. Such women if they cannot afford private medical services may choose to go to quacks rather than use public health services for fear of social censure and sanctions.

This is also documented by the Report of the Committee on the Status of Women in India (1974). In their suggestions for changes in the MTP Act, they recommend the need to clarify, for the benefit of those doctors who are reluctant to perform abortions on unmarried girls, that rape is not the only grounds to justify termination in case of unmarried girls, nor is there any legal obligation on the doctor to inform the police of an operation done in a rape case. Furthermore, they argue that it has to be reinforced that the consent of the patient's husband is not required for termination.

The Report of the Committee on the Status of Women in India suggested several other changes that were needed in the MTP Act. They pointed out that while the consent of minors over the age of twelve was necessary for other surgical procedures, according to Section 3, sub section (4) (a) of the Act, consent of a minor girl was not required for the MTP. They suggested that this distinction was uncalled for and may lead to guardians compelling young girls to undergo this operation even when they do not want it. The consent of the patient should be essential. This clause also applies to lunatic women of any age.

Furthermore, they pointed out that Section 8 of the Act, provides an overriding precaution to the doctor for any damage caused by the operation. Since no such protection is given is given for other operations, this seems an unnecessary clause and may lead to negligence. It may, therefore, be dropped. The Act has yet to be amended, and this is so even after other Acts regulating the use of MTP have been passed. While it is important that women have the right to terminate their pregnancies at will, the statements made by the government seem to imply that the MTP Act is perceived as a means of population control. Rather than being a means for women to control their own bodies and increasing their reproductive choices the Act may actually function to reduce their choices by allowing the state to carry out a subtly coercive family planning programme. It is clear that there is an urgent need for the premises and assumptions of the MTP Act to be re-examined and it's clauses to be altered in order to prevent its misuse and to ensure that it enhances and not reduces women reproductive rights and control over their bodies.