Francois Decaillet

Finding Foetuses: Examining India’s Little-Known Abortion Laws

Two weeks ago, nineteen aborted female foetuses were found in trash bags near a sewer in the western state of Maharashtra. Indian police were in the area investigating the death of a 26-year-old woman allegedly pressured into an abortion, who died after receiving one from an unlicensed clinic nearby. The clinic supposedly offered illegal sex-determinations along with abortions, and while abortions are legal in India, abortions solely because of the foetus’s gender are not. Police arrested the woman’s husband and issued a manhunt for the doctor running the clinic, a homeopath without a surgical license, who went missing after the foetuses’ detection.

This discovery of discarded female foetuses, while shocking, is hardly new for India. Other recent cases include the discovery of 15 female foetuses in the drains of Maharashtra’s Beed district in 2009, and of eight female foetuses in a plastic bag near a lake in the central Indian state of Madhya Pradesh in 2012. These incidents prove illegal sex-determination and abortion procedures are still practiced in India, although the true scale of illegal and unsafe abortions likely remains hidden.

India struggles with female foeticide and unsafe abortions despite considerable progress in progressive laws. Initial legislation, like the Indian Penal Code of 1862 and Code of Criminal Procedure of 1898, drew their inspiration from the British Offences Against the Person Act of 1861, outlawing abortion as a crime for which both the woman and abortionist could be punished – unless the abortion was performed to save the woman’s life. Years later in 1966, the Shah Committee, appointed by the Indian government, carried out a comprehensive review of the socio-cultural, legal, and medical aspects of abortion, and recommended legalising abortion to prevent harming women’s health and ultimately, their lives. This led to the Medical Termination of Pregnancy Act (MTP), passed by parliament in 1971, legalising abortion in all Indian states except Jammu and Kashmir. In those initial years after the legalisation of abortion, the number of terminated pregnancies only increased marginally, by about 8 to 10 per cent. However, by 1990, less than 10 per cent of the estimated total number of abortions were reported to the government. Since the legalisation of abortion, additional legislation has been passed regulating the training, record keeping, and application process of abortion facilities. Most recently, the Medical Termination of Pregnancy Amendment Act of 2002 and amendments of 2003 decentralised the regulation of abortion facilities from the state to district committee level, and instituted punitive measures for owners of abortion facilities lacking government approval, ranging from two to seven years imprisonment. These laws emphasise the legality of abortion in many situations, and work to ensure the standards of facilities.

Francois Decaillet
Image courtesy of Francois Decaillet, © 2013, some rights reserved.

While abortion may technically be legal in India, sex-determination tests for the purpose of later aborting female foetuses are not. The Prenatal Diagnostic Techniques Regulation and Prevention of Misuse Act (PNDT) of 1994, and its subsequent amendment in 2002, prohibit facilities to advertise sex-determination tests, require the facilities to be government-registered, and forbid health workers from conducting tests that reveal the foetus’s sex to the parents. India implemented this legislation in the hopes of counteracting the current gender imbalance. A widespread social preference for boys means many couples may want to abort unwanted girls. According to the Invisible Girl Project, a US-based NGO, on average one girl is aborted every minute ‘just because she is a girl.’ The most recent Indian census in 2011 showed the decline of the sex ratio, finding that for every 1000 boys there were 914 girls for children aged 0 to 6. In comparison, the 2001 census showed for every 1000 boys there were 927 girls for the same age group. In Maharashtra, where the 19 foetuses were found, their 2001 ratio was 913 girls for every 1000 boys, and in 2011 only 883 girls for every 1000 boys. These unbalanced numbers are definitely influenced by sex-selective abortions.

The reasons behind this cultural preference for sons remains the cause of heated debate, and some cite the financial burden of dowries required to marry off daughters as being a component for the preference of male offspring. Despite being illegal, the dowry custom is still a norm, leading girls to be seen as a huge cost with little return. Others reference the perceptions of men as traditional breadwinners, and the cultural expectation that wives care for their husbands’ ageing parents as an influence of this trend. Sex-selection is common among India’s affluent and educated, as well as those of Indian descent living abroad. This trend is reflected in the variations of sex ratios between Indian states. For example, women kidnapped for bride trafficking come from states with more balanced sex ratios (including Assam, Jharkhand West Bengal, and Odisha), while India’s more conservative and affluent states can afford ultrasound tests and selective abortions, resulting in a sharper gender imbalance, and a need for bride-trafficking services. The cultural preference for sons has created a strong gender imbalance in India, and shortage of potential brides, leading to a rise of kidnapping and forcing young girls into prostitution and bride trafficking as unexpected consequences.

Despite India’s progressive abortion legislation, huge numbers of unsafe abortions are still performed. In 2013, the BBC reported that every two hours a woman died from an abortion that went ‘horribly wrong.’ These deaths from unsafe abortions are caused by a combination of poor quality of care in largely public facilities, ineffective enforcement of legislation, unregulated growth of exploitive private sector services, and general misinformation about India’s abortion laws. Many assume abortions are illegal, leading many rural or small town doctors to worry they will face action for performing abortions. India also struggles to effectively enforce laws surrounding abortion facilities and sex-determination tests. Corruption, in both public and private facilities that charge ‘informal’ and exorbitant fees that exploit the vulnerability of women seeking abortions and their limited awareness of the law, is also an issue. Individual states often impose additional layers of non-essential regulations onto abortion facilities. Maharashtra, for example, requires a blood bank within 5 kilometres of any abortion facility, despite this being an impractical and unnecessary measure.

The additional regulations, misinformation surrounding India’s abortion laws, and cultural preference for sons contribute to the large number of unsafe abortions in India, and the continued illegal abortion of female foetuses. India needs stronger enforcement of its anti-sex-determination and abortion facility laws, decreased financial exploitation of women seeking abortions, and improved information on the abortion laws to decrease the number of dangerous and illegal abortions, especially in rural areas. If these problems are not addressed the country will continue to struggle with unsafe abortions and pregnancy terminations motivated by the foetus’s gender.

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