7

S ex Selection and Medical

­Termination of Pregnancy

prohibition against sex selection

The Sex Ratio
The predominantly patriarchal, social, cultural, and religious set-up
founded on the principle that the family line runs through a male has
contributed extensively to the secondary status of women in India.
This has led to a strong desire to avoid the birth of a female child
in the family, resulting in an imbalance in the child sex ratio that is
increasing at an alarming rate in some of the states and union territo-
ries. Misuse of the techniques like amniocentesis to determine the sex
of the foetus and subsequent abortions if the foetus was found to be
female were highlighted by social activists in the 1980s.Thereafter, due
to the relentless efforts of activists and after intensive public debate all
over India, the Parliament enacted the Pre-natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Act on 20 September 1994,
and it was brought into operation from 1 January 1996. The act has
since been amended with effect from 14 February 2003 to make it
more comprehensive and renamed as ‘Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994’.1
The techniques of pre-conception sex selection have been brought
within the ambit of the act so as to pre-empt the use of such technolo-
gies, which significantly contribute to the imbalanced sex ratio.2 In
India, as per the 2011 census, there are 944 females per 1000 males.
While the overall sex ratio encompassing twenty-nine states shows an

Medicine and the Law. K. Kannan.

© Oxford University Press 2014. Published 2014 by Oxford University Press.
 Sex Selection and Medical ­Termination of Pregnancy 365

e­ ncouraging trend, the same is not true of the girl child in the age
group of 0–6 years. A defining indicator of the grim scenario is the
sharp increase in the imbalance in the child sex ratio (in the age group
0–6 years) over the last decade. The overall child sex ratio has shifted
from 945 females to a thousand males in 1991, to 927 in 2001, and
still further to 914 in 2011. Alarmingly, the urban areas, more literate
and therefore perceived as being more modern, have shown a huge
29-point shift from 935 in 1991 to 906 in 2001. Regional variations in
the sex ratio reflect the diverse levels of social obstacles that girls and
women face in different parts of the country. The situation is worse in
the north-western states of India, with Punjab recording the maximum
decline of 77 points, from 875 in 1991 to 798 in 2001, followed by
Haryana, Himachal Pradesh, Chandigarh, Delhi, and Gujarat. The top
three states in terms of the child sex ratio in 2001 were in South
India—Pondicherry, Kerala, and Lakshadweep.3

Socio-cultural Factors and Practices

An examination of the causes for the aversion to the girl child indicates
that they are rooted in rituals and perceptions that go back centuries: the
fear of having to pay for a girl’s dowry, the belief that for true s­alvation
a son should perform the last rites, the conviction that lineage and
inheritance run through the male line, and that a son will look after his
parents in their old age, whereas the daughters will belong to another
family.Tied up to all this is the old perception of seeing only men as the
bread earners. The subjugated position of women makes them vulner-
able to various forms of violence, both within and outside the family—
domestic violence, rape, sexual abuse, dowry harassment, and trafficking.
Perhaps the most horrifying form of this gender-specific violence is
female infanticide. Ironically, progress in science and technology and
the easy availability of new machines that are able to identify the sex of
the foetus, has spawned another form of violence—female foeticide, or
killing the girl child in the womb. For several parents, there is little or no
moral guilt attached to elimination of a foetus, as compared to killing the
girl child after she is born.These sex-selective abortions are preceded by
sex identification, which is done by amniocentesis, chorionic villus sam-
pling and, the most popular technique: ultrasonography. Interestingly,
none of these techniques and machines are new. Some of them have
366 Medicine and Law

been in use in India since 1975 but primarily for the determination of
genetic abnormalities, which is what they were created for. However,
over the past few decades they have been misused to determine the sex
of the foetus. If it is a female, an abortion inevitably follows.

The Physician’s Role

Unlike female infanticide, female foeticide requires a medical practi-
tioner to determine the sex of the foetus. This could have been a great
deterrent in effectively countering female foeticide if, from the very
beginning, doctors had refused to allow this technology to be used
for sex-identification and sex-selection. Unfortunately, several medical
practitioners have become willing or unwitting facilitators of foeticide,
colluding with parents and other relatives of the unborn child to do
sex determination tests. Easy, quick money was a motivation for some
of them, and a few others simply saw it as another medical service or
even a way of helping parents and stopping female infanticide.

Pre-conception and Pre-natal Diagnostic Techniques

­(Prohibition of Sex Selection) Act, 1994
Female infanticide was prohibited through legislation in pre-Indepen-
dence India. However, the law was toothless and there were few, if
any, convictions. The IPC, 1860, also had provisions of punishment
for causing miscarriage and similar offences, but these too were rarely
enforced. Three decades after Independence, as pre-natal diagnostic
techniques spawned female foeticide and an imbalanced sex ratio, the
government issued a directive in 1978 banning the misuse of amnio-
centesis in government hospitals or laboratories. The relentless efforts
of activists led Maharashtra to enact a law to prevent sex determination
tests—the Maharashtra Regulation of Pre-natal Diagnostic Techniques
Act, 1988. In 1994, after intensive public debate all over India, the
Parliament enacted the Pre-natal Diagnostic Techniques (Regulation
and Prevention of Misuse) Act on 20 September 1994. The act, which
came into operation from 1 January 1996, provided for the regula-
tion of the use of pre-natal diagnostic techniques for the purpose of
detecting genetic or metabolic disorders, chromosomal abnormalities,
and certain congenital malformations or sex-linked ­disorders; and the
 Sex Selection and Medical ­Termination of Pregnancy 367

prevention of the misuse of such techniques for the purpose of pre-

natal sex determination leading to female foeticide. It has provisions
for institutions that are responsible for policy-making and those which
are responsible for the implementation of the act. It elaborates on the
penalties for various offences and lays down who is to take cognizance
of complaints and how this is to be done.

The Amending Act of 2003

The act has been amended with effect from 14 February 2003 with a
view to make it more comprehensive, and renamed the Pre-conception
and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994 (PNDT Act).4 It brought within its ambit the techniques of pre-
conception sex selection to pre-empt the misuse of such t­echnologies.
It has explicit provisions for the use, regulation, and monitoring
of ultrasound machines to curb their misuse for detection of the sex
of the foetus. The act prohibits determination and disclosure of the
sex of foetus, as well as any form of advertising about facilities for pre-
natal determination of sex. It prescribes punishments for contravention
of its provisions imprisonment up to five years and a fine of up to
Rs 1,00,000. The act provides for prohibition of sex selection, before
and after conception,5 and regulation of prenatal diagnostic techniques
(for example, amniocentesis and ultrasonography) for detection of
genetic abnormalities by restricting their use to registered institutions.
It allows the use of these techniques only at a registered place for a
specified purpose and by a qualified person registered for this pur-
pose;6 prevention of misuse of such techniques for sex selection before
or after conception;7 prohibition of advertisement of any technique
for sex selection as well as sex determination;8 prohibition on sale of
ultrasound machines to persons not registered under this act;9 registra-
tion of genetic counselling centres, genetic labs, and genetic clinics;10
and punishment for violation of provisions of the act.11

Persons Entitled to Registration

The pre-natal diagnostic technique itself could be carried out only if
a person who is qualified undertakes such an examination and records
in writing existence of any one or more of the conditions spelt out
368 Medicine and Law

under Clause (3) of Section 4. Section 5 prohibits the communication

of the sex of the foetus, which is again intended to prevent the misuse
of such information. Section 6 prohibits the determination of sex by
any genetic counselling centre or genetic laboratory or genetic clinic.
The provisions of the act are carried throughby the application of
the rules of the year 1996 and Rule 3 specifies the qualification of
employees for three categories of investigations: (1) genetic counselling
centre, (2) genetic laboratory, and (3) genetic clinic, ultrasound clinic,
or imaging centre. For each of these categories, the rules specify the
respective qualifications of persons who shall be employed. A genetic
counselling centre could not be established without a gynaecologist
or a paediatrician or a medical geneticist. A genetic laboratory shall
have a person who is either a medical geneticist or a lab technician
with certain degrees. A genetic clinic, ultrasound clinic, or imaging
centre shall have a gynaecologist with experience of performing at
least 20 procedures and a sonologist, imaging specialist, radiologist, or
registered medical practitioner with a postgraduate degree, diploma,
six months training, or a year’s experience in sonography or image
scanning, or there shall be a medical geneticist. The expressions ‘medi-
cal geneticist’, ‘gynaecologist’, ‘sonologist’, and ‘medical practitioner’
have all been defined. A ‘medical geneticist’ is defined under Section
2(g) as a ‘person who possesses a degree or diploma in genetic science
in the fields of sex selection and pre-natal diagnostic techniques or has
experience of not less than two years in any of these fields after obtain-
ing (i) any one of the medical qualifications recognized under the
Indian Medical Council Act, 1956 (102 of 1956); or (ii) a postgraduate
degree in biological sciences.’ A ‘sonologist’ or a ‘imaging specialist’ is
defined under Section 2(p), which reads as follows: ‘A “sonologist or
imaging specialist” means a person who possesses any one of the medi-
cal qualifications recognized under the Indian Medical Council Act,
1956 (102 of 1956), or who possesses a post-graduate qualification in
ultrasonography or imaging techniques or radiology.’ The appendix to
the rules sets out the forms under which the certificate of registration
shall be issued. Form A, which is a form of application for registra-
tion of an ultrasound clinic or imaging centre, requires a declaration
that the organization that installs the equipment has understood the
provisions of the act and all the employees have also been explained
under the act and the Rules. Form B is the certificate of registration
 Sex Selection and Medical ­Termination of Pregnancy 369

issued for a particular period of time, and Form C is for rejection of

application for grant or renewal of registration; Form D specifies the
form of maintenance of records by genetic counselling centre; Form
E by the genetic laboratory and Form F for genetic clinic, ultrasound
clinic or imaging centre.

Penalties
In Varsha Gautam (Dr) v. State of UP12 a sting operation caught a
doctor prepared to reveal details of the sex of the child to a woman
who wanted to abort it if it was a female. A criminal case was reg-
istered against the doctor for offence under the act. A petition to
quash the investigation was sought on the grounds inter alia that the
Appropriate Authority (AA) had not sanctioned the lodging of a
complaint, and that there had been no case made out. The Allahabad
High Court refused to interfere, stating that there was definite mate-
rial for investigation, and the sanction was necessary only when the
concerned court sought to take cognizance, and there could be no
bar of investigation under Section 28 of the act. Under the provisions
of the act, a Central Supervisory Board (CSB) constituted under the
chairmanship of the Union Minister for Health and Family Welfare
is empowered to monitor the implementation of the act. State-level
supervisory boards fulfil this responsibility in the states or union terri-
tories (UTs), where the act is implemented by the AAs constituted at
state, district, or sub-district levels. The state-or UT-level AA has been
made a multi-member body to facilitate implementation and moni-
toring. The AAs are empowered with the powers of a civil court for
search, seizure, and sealing of the machines, equipment, and records
of the violators. Their power extends to sealing premises and com-
missioning witnesses. It is now mandatory to maintain proper records
of the use of ultrasound machines and other equipment capable of
detecting the sex of foetus, and tests and procedures leading to pre-
conception selection of sex. The sale of ultrasound machines too has
been regulated by allowing such a sale only to the institutions regis-
tered under the act. The power to cancel registration, which the AA
could exercise under Section 20, could be initiated after a show-cause
notice suo motu, or on a complaint and pending enquiry could also
suspend registration. The show-cause notice may not be necessary
370 Medicine and Law

under circumstances where the genetic centre has itself admitted sex
selection and even justifies its action as necessary to ‘family balancing’
in prior proceedings in court.13 The act also empowers the AA to
report to the State Medical Council recommending action for sus-
pension of registration of a medical practitioner if charges are framed
by the court and till the case is disposed of; and on conviction, to
remove his name from the register of the council for a period of
five years for the first offence and permanently for the subsequent
offence.14 In Dr Preetinder Kaur v. State of Punjab,15 the Punjab and
Haryana High Court held that the power to lodge a complaint by
the AA exercised through the Project Officer, Enforcement Cell but
subsequently ratified by AA would amount to an irregular exercise
of power, but would not be illegal, vitiating the cognizance taken
by the court. With regard to irregular exercise, the court protected
the medical practitioner by causing a restraint against the AA from
making any recommendation for suspension of licence to the state
medical council till the conclusion of the criminal case.

Pre-conception Techniques Aiding Sex Preference

The above act regulates only the practice of sex determination dur-
ing the stage of pregnancy. It should be remembered that advances
in assisted reproductive technologies have provided parents with an
accurate method of selecting the sex of their children before concep-
tion. At this time, two methods that provide the best prospects for sex
selection are pre-implantation genetic diagnosis (PGD) of embryos
and sperm-sorting through flow cytometry. There is no law to regu-
late this practice. The ethical and legal dilemmas presented by pre-
conception methods of sex selection vary in many ways from those
presented by post-conception techniques. PGD may be resorted to
in order to avoid having a baby with a certain genetic disposition to
the particular sex that a parent wants to avoid. But sex preferences
are mostly non-therapeutic reasons and driven by cultural prefer-
ences of a particular sex. A prospective parent is likely to experience
less guilt choosing the sex of the child at the pre-conception stage
than terminating pregnancy to avoid having a child belonging to a
particular sex. The use of PGD also has relevance to how we value
embryos. Are we prepared to assign a high value principally by the
 Sex Selection and Medical ­Termination of Pregnancy 371

fact that the embryo has a p­ otential for life or are we prepared to
compromise our ethical stand by the fact that we have laws that even
enable termination of p­ regnancies? Perhaps the right of a woman to
choose what to do with the foetus has to be balanced with the right
of the foetus to survive. It is only that a foetus does not have the
ability to exercise an option while the person that carries it does. The
fundamental question is whether it is ethically appropriate to act as a
loving parent only to a child of particular sex. This argument is based
on notions that prospective parents who are overly concerned with
characteristics of their potential children are not prepared for the
unconditional love and acceptance that being a good parent entails.
These characteristics of the parent–child relationship can be harmed
by the attitude that children can be selected and designed based on
the parents’ notions of the ideal child or family.16 Additionally, there
is some concern that if parents begin to have a ‘designer’ attitude
toward their children, and select traits such as gender, they may feel
guilt and remorse if the child for which they selected certain char-
acteristics is born with other genetic abnormalities or fails to live
up to their notions of stereotypical gender roles.17 This can affect
their relationship with the child, as the child is a constant reminder
of its parents’ dashed hopes. The designer attitude is also seen as a
potential stepping stone for eugenics, which raises yet another reason
for regulating pre-conception sex selection.18
Renee C. Esfandiary observes, ‘The consideration of genetic make-
up when making reproductive decisions suggests that the value of an
individual is not based on their intrinsic worth, but instead is depen-
dent on their genetic makeup. Human dignity is compromised when
individuals know that they are the product of genetic manipulation.’19
Certainly, the state has some interest in protecting future children from
these kinds of harm, despite the fact that they are quite abstract. Here the
state’s concern about female infanticide and the logic for legislation
to prevent pre-natal diagnostic techniques from aiding sex preference
will also apply to pre-conception choice. A counter-argument could
be that in a country like India, where the population policy dictates
limiting the size of the family to not more than two, it would serve
the policy better if the parents are able to decide on the sex of the
children rather than continuously having children till the child of their
preferred sex arrives.
372 Medicine and Law

abortion
General
In India, the transition from a regime of proscription against abortion
by treating it as a criminal offence liable for punishment under the
IPC to legitimizing the practice as health and family planning measures
through the enactment of the MTP Act, 1971, has been fairly easy,
unlike in the West, where the movement towards legalizing abortion
has been tumultuous involving major heated public debates. According
to the IPC the offence falls under ‘Offences Affecting the Human
Body’, and provides that causing a miscarriage with or without consent
for a purpose other than saving the life of the woman is punishable.The
MTP Act makes for a quantum difference in approach, as if by a legisla-
tive sleight through a non-obstante clause, it decriminalizes abortion
without bringing an amendment to the IPC or abrogating the penal
provisions. The MTP Act sets some limitations regarding the circum-
stances when abortion is permissible, the persons who are competent
to perform the procedure, and the place where it could be performed.
Outside the ring of protection that the act draws, the IPC still operates.

The Penal Provisions in the IPC

312. Causing miscarriage: Whoever voluntarily causes a woman with
child to miscarry shall, if such miscarriage be not caused in good faith
for the purpose of saving the life of the woman, be punished with im-
prisonment of either description for a term which may extend to three
years, or with fine, or with both; and, if the woman be quick with child,
shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.
Explanation: A woman who causes herself to miscarry, is within the
meaning of this section.
313. Causing miscarriage without woman’s consent: Whoever commits
the offence defined in the last preceding section without the consent
of the woman, whether the woman is quick with child or not, shall be
punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be
liable to fine.
314. Death caused by act done with intent to cause ­miscarriage: Who-
ever, with intent to cause the miscarriage of a woman with child, does
 Sex Selection and Medical ­Termination of Pregnancy 373

any act which causes the death of such woman, shall be punished with
imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine; ... and if the act is done without the
consent of the woman, shall be punished either with imprisonment for
life, or with the punishment above mentioned.
Explanation: It is not essential to this offence that the offender should
know that the act is likely to cause death.
315. Act done with intent to prevent child being born alive or to cause
it to die after birth: Whoever before the birth of any child does any act
with the intention of thereby preventing the child from being born
alive or causing it to die after its birth, and does by such act prevent
that child from being born alive, or causes it to die after its birth, shall, if
such act be not caused in good faith for the purpose of saving the life of
the mother, be punished with imprisonment of either description for a
term which may extend to ten years, or with fine, or with both.
316. Causing death of quick unborn child by act amounting to culpable
homicide: Whoever does any act under such circumstances, that if he
thereby caused death he would be guilty of culpable homicide, and does
by such act cause the death of a quick unborn child, shall be punished
with imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine.
Illustration: A, knowing that he is likely to cause the death of a pregnant
woman, does an act which, if it caused the death of a woman, would
amount to culpable homicide. The woman is injured, but does not die;
but the death of an unborn quick child with which she is pregnant is
thereby caused. A is guilty of the offence defined in this section.

MTP Act, 1971

when termination of pregnancy is permissible
The Act 34 of 1971 was passed on 10 August 1971 with the avowed
object to liberalize and to permit termination of pregnancy.20 This act
contains no provision inconsistent with the object of the Preconception
and Prenatal Diagnostic Techniques (Prohibition of Sex Selection)
Act, 1994,21 prohibiting prenatal sex determination.22 The act sets out
at least three circumstances when medical termination is permissible:
(1) to protect the mother’s health, strength, or life; (2) on humani-
tarian grounds such as when the pregnancy arises from a sex crime
like, rape; and (3) when there is a substantial risk, that is, the child, if
374 Medicine and Law

born, would suffer from deformities and diseases. The Supreme Court
made a substantial dent in the last situation, when it warned in Suchita
Srivastava v. Chandigarh Administration23 in the context of approving the
continuation of pregnancy of a mentally retarded person:
Empirical studies have conclusively disproved the eugenics theory that
mental defects are likely to be passed on to the next generation. The
‘Eugenics theory’ has been used in the past to perform forcible ster-
ilizations and abortions on mentally retarded persons. (See generally:
­Elizabeth C. Scott, ‘Sterilization of Mentally Retarded Persons: Repro-
ductive Rights and Family Privacy’, Duke Law Journal 806–65 [Novem-
ber 1986]) We firmly believe that such measures are anti-democratic
and violative of the guarantee of ‘equal protection before the law’ as laid
down in Article 14 of our Constitution. It is also pertinent to note that
a condition of ‘mental retardation’ or developmental delay is gauged on
the basis of parameters such as Intelligence Quotient (IQ) and Mental
Age (MA) which mostly relate to academic abilities. It is quite possible
that a person with a low IQ or MA may possess the social and emo-
tional capacities that will enable him or her to be a good parent. Hence,
it is important to evaluate each case in a thorough manner with due
weightage being given to medical opinion for deciding whether a men-
tally retarded person is capable of performing parental responsibilities.

Termination of certain pregnancies by registered medical practitio-

ners24 shall be possible where the length of the pregnancy does not
exceed twelve weeks if such medical practitioner is of the opinion,
formed in good faith that (1) 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 health25 or (2) there is a substantial risk that
if the child were born, it would suffer from such physical or mental
abnormalities to be seriously handicapped. Where the length of the
pregnancy exceeds twelve weeks but does not exceed twenty weeks, the
opinion to permit abortion or otherwise shall be taken by not less than
two registered medical practitioners.26 The limitation of the period of
gestation does not apply in a case where the termination of pregnancy
is, in the opinion of a medical practitioner, who may not even have
experience or training in gynaecology and obstetrics,27 immediately
necessary to save the life of the pregnant woman.28 The act specifies two
circumstances where the anguish caused by such unwanted pregnancy
may result in grave injury to the mental health of the pregnant woman:
 Sex Selection and Medical ­Termination of Pregnancy 375

(1) where any pregnancy is alleged by the pregnant woman to have been
caused by rape;29 (2) 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.30 Even in situations
justifying termination of pregnancy, the primordial requisite of securing
the consent of the woman cannot be dispensed with. However, if the
termination of pregnancy is carried out without consent, the doctor
shall become liable for criminal offence.31 In determining whether the
continuance of a pregnancy would involve risk of injury to the health,
account may be taken of the pregnant women’s actual or reasonable
foreseeable environment.32 In a case where pregnancy has resulted from
rape, it shall not be necessary for the woman to seek for permission
from the magistrate before whom the criminal case is pending before
committal. When such a petition was presented to preserve the foetus
to carry out the DNA test to identify the rapist, the Delhi High Court
in Mahima v. State,33 while reversing the order of dismissal of the peti-
tion by the victim, gave directions to preserve the foetus, conduct a
DNA test, and produce the report before the trial court. If it was not
possible to terminate the pregnancy for any reason whatsoever, then the
medical board was directed to conduct the DNA test by the prescribed
medical modes as a proof of conception by the accused.

extent of immunity to a medical practitioner

The medical practitioner who terminates a pregnancy in the manner
and under the circumstances mentioned under the act shall not be
liable to prosecute for any offence under the IPC in the light of the
express provision contained under Section 3(1). Section 8 also provides
immunity to a doctor for any damage caused or likely to be caused for
any act done in good faith under the act. The effect of the non-obstante
clause is clear and unambiguous. It becomes an overriding provision
and is to prevail over anything contained in any relevant existing law
that is inconsistent with the new enactment. A non-obstante clause is
a legislative device that is usually employed to give overriding effect
to certain provisions over some contrary provisions that may be found
either in the same enactment or another. The purpose is to avoid the
operation of all contrary provisions. It is equivalent to saying that in
spite of the provision or act mentioned in the non-obstante clause, the
376 Medicine and Law

enactment following it, will have its full operation or that the provi-
sions indicated in the non-obstante clause will not be an impediment
for the operation of the enactment.34
The immunity available to a medical practitioner under this act shall
not be given to any other person who may have prevailed on the woman
to terminate her pregnancy when proceeded against for offence under
the IPC.35 If the medical practitioner is not trained in gynaecology as
required under the act or if he has carried out the surgery negligently
or without consent, he shall become liable for conviction under Section
314, IPC36. A homeopath who had no proper training in gynaecology
and whose surgical intervention resulted in death of the woman was
found guilty and a fine of Rs 1,00,000 was directed to be paid by the
Supreme Court in Dr Jacob George v. State of Kerala,37 in consideration of
the fact that the woman was survived by a young child.

in the event of a minor or ‘mentally ill’

The pregnancy of a minor or ‘a mentally ill person’ under circum-
stances when termination is permissible shall be done only with the
consent in writing of her guardian.38 The guardian is defined as a per-
son who is having care of the person who is a minor or mentally ill,39
and may give consent only for the circumstances set down under the
act. Suppose that the circumstances do not exist, the girl is a minor, the
parent gives consent, and the minor wants to retain the foetus—the
termination of pregrancy shall not be undertaken. This was held so in
V. Krishnan v. G. Rajan alias Madipu Rajan and The Inspector of Police (Law
and Order),40 when a Division Bench of the Madras High Court said:
The prayer in the petition (by the parent of a minor who had married
a person without the consent of her parents and through whom she
had become pregnant) cannot be granted on the averments made in
the affidavit. The pregnant girl is capable of understanding the world
as well as the consequences of the pregnancy. Her opinion is of great
importance and the court should take that into account before con-
sidering the prayer of the petitioner. If termination of pregnancy is
ordered against the will of the girl, it will harm her mental health and
may also affect her physical health. It is her fundamental right to have
child ­having become pregnant.
 Sex Selection and Medical ­Termination of Pregnancy 377

The bench examined the religious views on teenage pregnancies

and the right of a guardian to determine pregnancy in global regimes,
and stated in the context of the Indian law:
The provisions of the Act do not confer or recognise any right on any
person to cause an abortion or termination of pregnancy. Even the
pregnant woman cannot terminate the pregnancy except under the cir-
cumstance set out in the Act. Even during the first trimester, the woman
cannot abort at her will and pleasure. There is no question of abortion
‘on demand’. Section 3 is only an enabling provision to save the regis-
tered medical practitioner from the purview of the Indian Penal Code.
Termination of pregnancy under the provisions of the Act is not the rule
and it is only an exception. The normal rule that the pregnancy should
continue to its term shall prevail unless a registered medical practitioner
in the case of a pregnancy not exceeding twelve weeks or two registered
medical practitioners in the case of a pregnancy exceeding 12 weeks but
less than twenty weeks, opine in good faith that the continuance of the
pregnancy would involve (i) a risk to the life of the pregnant woman,
or (ii) grave injury to her physical or mental health, or (iii) there is a
substantial risk that if the child were born, it would suffer from such
physical or mental abnormalities as to be seriously handicapped. Under
Section 3(2), there can be no termination of pregnancy if the length of
the pregnancy had exceeded twenty weeks. The only exception thereto
is found in Section 5, under which the pregnancy can be terminated
immediately to save the life of the pregnant woman at any stage of the
pregnancy, if the opinion of the medical practitioner is formed in good
faith. Under explanation I to (2), if the pregnancy is alleged to have been
caused by rape, the mental anguish resulting there from shall be pre-
sumed to constitute a grave injury to the mental health of the pregnant
woman.The Explanation only provides for a presumption which can be
rebutted in the facts and circumstances of the case. It is not necessary
for us to refer to Explanation II in the present case. Sub-section (4)(a) of
Section 3 provides that if the pregnant woman has not attained the age
of 18, or if she is a lunatic, the pregnancy shall not be terminated except
with the consent of her guardian in writing. Sub-section (4)(b) provides
that no pregnancy shall be terminated except with the consent of the
pregnant woman save as otherwise provided in Clause (a).

The Criminal Law Amendment made in 2013 alters the definition of

‘rape’ under Section 376 IPC and raises the age of consent to sex to
18. Consequently, it makes sexual intercourse with a woman less than
378 Medicine and Law

18 years of age who is not the spouse as constituting the offence, even
if she has consented to sex. Any pregnancy that results under such a
situation will legitimize termination of pregnancy by a doctor. Even
the information to the police given by the doctor about the identity
of the male who has caused the pregnancy cannot result in breach of
confidentiality, since the provision in the Evidence Act that gives pro-
fessional privilege against guideline issued by IMC Cabot overrides the
duty to report sexual offence against any ‘child’ by virtue of Section 9
of Protection of Children of Sexual Offences Act, 2012.
A mentally-ill person means a person who is in need of treatment
by reason of any mental disorder other than mental retardation.41 The
provision for consent by a guardian under the Medical Termination of
Pregnancy act does not apply to a mentally retarded person. In Suchita
Srivastava & Another v. Chandigarh Administration42 the Supreme Court
dealt with a case of  ‘mildly mentally retarded person’, a victim of rape
in a government-run home, where it refused permission sought from
the state administration for termination of pregnancy.The Court found
the ‘best interest principle’ to be applied in a given case would be to
examine what was in the best interests of the pregnant woman, and
if she wanted to retain the foetus, medical termination of pregnancy
would be impermissible. The substituted judgment principle would
not be justified for the court to overrule the decision of the mother
in a case where (1) the medical report suggested that there would be
no danger to the mother to carry the pregnancy to full term; (2) the
woman was already nineteen weeks advanced in pregnancy and (3)
when she wanted to retain the foetus.The woman was 19 years old but
had mental growth of an eight-to nine-year-old girl, yet, acting on the
medical report that she was capable of rote-memorization and imita-
tion, had learnt to perform basic bodily functions, and was capable of
simple communications, the Court held that the ‘best interests’ test
alone should govern the inquiry and not the ‘substituted judgment’
test, and consequently rejected the permission sought for termination
of pregnancy. In so doing, the Supreme Court also cited the principles
laid down in United Nations Declaration on the Rights of Mentally Retarded
Persons 1971 (G.A.Res. 2856 (XXVI) of 20 December, 1971, and in par-
ticular to Principle 7,which prescribed that a fair procedure should be
used for the restriction or denial of the rights guaranteed to mentally
retarded persons, should ordinarily be the same as those given to other
human beings. The Court observed:
 Sex Selection and Medical ­Termination of Pregnancy 379

In respecting the personal autonomy of mentally retarded persons with

regard to the reproductive choice of continuing or terminating a preg-
nancy the MTP Act lays down such a procedure. We must also bear in
mind that India has ratified the Convention on the Rights of Persons
with Disabilities (CRPD) on October 1, 2007 and the contents of the
same are binding on our legal system.
Referring to the peculiarities of the case, the Supreme Court
c­ ommented:
persons who are found to be in borderline, mild and moderate forms
of mental retardation are capable of living in normal social condi-
tions and do not need the intensive supervision of an institutionalised
­environment. As in the case before us, institutional upbringing tends to
be associated with even more social stigma and the mentally retarded
person is denied the opportunity to be exposed to the elements of rou-
tine living. For instance, if the victim in the present case had received
the care of a family environment, her guardians would have probably
made the efforts to train her to avoid unwelcome sexual acts. However,
the victim in the present case is an orphan who has lived in an insti-
tutional setting all her life and she was in no position to understand or
avoid the sexual activity that resulted in her pregnancy. The responsibil-
ity of course lies with the State and fact-situations such as those in the
present case should alert all of us to the alarming need for improving
the administration of the government-run welfare institutions.

place where pregnancy may be terminated

No termination of pregnancy shall be made in accordance with the
act at any place other than a hospital established or maintained by the
government, or a place for the time being approved for the purpose of
this act by the government.43 A doctor carrying out the termination
of pregnancy in a hospital that is not approved under the act and the
relevant rules shall become liable for conviction under Section 314 of
the IPC.44

offences and penalties

The termination of a pregnancy by a person who is not a registered
medical practitioner shall be an offence punishable under the IPC.45
The IPC makes the voluntary act of causing miscarriage not done in
good faith for the purpose of saving the life of the woman an offence
380 Medicine and Law

punishable for a term which may extend to three years or with fine
or with both, and if the woman is in an advanced stage of pregnancy
shall be punished with imprisonment of either description, which may
extend to seven years and shall also be liable to a fine.46 The explana-
tion to this provision makes the woman who causes herself to miscarry
as falling within it. By virtue of Section 313, IPC, a person who causes
a miscarriage without the consent of the woman, whether the woman
is is in an advanced stage of pregnancy or not shall be imprisoned with
life, or with imprisonment which may extend to 10 years and also be
liable to a fine. Even an act done with the intent to prevent a child
being born alive or to cause it to die after death is punishable under
Section 315, IPC, with imprisonment that may extend to 10 years or a
fine, or both. An act done to terminate pregnancy that results in death
would be culpable homicide.47 If the woman is injured but does not
die, but the death of her advanced, unborn child is thereby caused, the
person will be guilty of the offence, which may extend to punishment
with imprisonment upto 10 years, and shall also be liable to a fine.48 To
the extent to which the provisions of the MTP Act allow for termina-
tion of pregnancy on certain stated grounds, the IPC provisions shall be
read down to cover only cases which are not excepted under the act.49

Ethics of Medical Termination of Pregnancy

The MTP Act does not address any ethical issues, but in legal regimes
that proscribe abortions, they stem from a moral standpoint that medi-
cal termination of pregnancy results in the death of a living being. The
fundamental question is what makes killing a human being wrong. We
may then consider whether these characteristics, whatever they might
be, apply to the earliest stages of human life in the womb.50 Explanations
that have roots in religion include the traditional Christian doctrines
such as that all humans are made in the image of God or that all
humans have an immortal soul.51
In Roe v. Wade52 the US Supreme Court decided, by a 7–2 major-
ity, that an implied constitutional right to privacy, whether based
on the 14th amendment concept of personal liberty or in the ninth
­amendment’s reservation of rights to the people, was sufficiently broad
to encompass a woman’s right to terminate her pregnancy.53 The Court
summarized its decision as follows:
 Sex Selection and Medical ­Termination of Pregnancy 381

(a) For the stage prior to approximately the end of the first trimester,
the abortion decision and its effectuation must be left to the medical
judgment of the pregnant woman’s attending physician.
(b) For the stage subsequent to approximately the end of the first
trimester, the State, in promoting its interest in the health of the
mother, may, if it chooses, regulate the abortion procedure in ways
that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest
in the potentiality of human life may, if it chooses, regulate, and even
proscribe, abortion except where it is necessary, in appropriate medi-
cal judgment, for the preservation of the life or health of the mother.

It delved into the history of abortion in Anglo-American criminal law,

and Justice Blackmun concluded that a right to abortion was consistent
with that history.54 As early as the mid-thirteenth century the common
law punished abortion after foetal formation as homicide. Foetal forma-
tion, or the point at which the foetus assumed a recognizably human
shape and was believed to be ensouled, was thought to occur some
forty days after conception. By the mid-seventeenth century, abortion
was prohibited as a ‘great misprision’ or serious misdemeanour. By the
early nineteenth century at the latest, the common law appears to have
prohibited abortion only after ‘quickening’. Quickening, which occurs
between the twelfth and the twentieth week of pregnancy, is the point
at which the mother first perceives foetal movement. The later com-
mon law may have chosen this point because it was the point at which
unborn life was believed to begin or because it was the point at which
it could be legally proved to have begun. In the 1992 case of Planned
Parenthood of South Eastern Pennsylvania v. Casey,55 the majority of the
Supreme Court, led by Justices Souter, Kennedy, and O’Connor, retained
and reaffirmed the central holding in Roe, but said that the Pennsylvania
law that required notification of abortion to the husband was invalid.

Legitimacy of Abortion: The Global Scene

The problem is not confined to the US and extends to other Anglo-
American jurisdictions where there is a legal right to an abortion.
Canada is a prime example. In 1988, the Supreme Court of Canada
affirmed a woman’s right to abortion and struck down provisions in the
Criminal Code that regulated abortion as unconstitutional.56 The court
382 Medicine and Law

also found it was unconstitutional to make an order restricting the

liberty of a pregnant mother who was addicted to a chemical substance
that was harming her foetus.57 Current German laws permit abor-
tion after mandatory counselling and a three-day waiting period. This
scheme was a political compromise necessitated by the re-unification
of Germany. Rather than criminalizing abortion, German law focuses
on counselling, employment security, social welfare, and financial sup-
port to persuade pregnant women to give birth to their children. In this
way, German law successfully achieves some degree of protection for
the unborn by obtaining voluntary recognition of personal responsibil-
ity and respect for the personhood of the unborn.58
In Ireland, the 146-year-old abortion law that banned the practice
underwent a change allowing for termination of pregnancy to alleviate
life threatening conditions, including a woman’s own threat to commit
suicide if refused a termination.59

Medical Termination of Pregnancy of Children in Womb with

Defects
The most critical decisions are the ones when the child in the womb
is diagnosed to have some mental or physical deformities when the
mother decides to terminate the pregnancy.60 Not only can we then ask
ourselves: Do we want a child? But with genetic information we can
ask ourselves: Do we want this particular child? This reframes the nature
of the parenting relationship, making our parenting conditional upon
the child meeting certain criteria.61 The issue now swings from health
concerns to avoiding disability. Within this understanding of disability,
genetic technology then becomes a tool not for promoting community
health but a mechanism of social control for avoiding the appearance of
difference.62 Even apart from the point of view of health and avoidance
of disability, with modern notions of individual liberty, many pregnant
woman believe that apart from them, no one else will have a right to
decide about what she wishes to do with the foetus. In today’s society,
some pregnant women deny the biological fact that they are mothers
until their baby is born. Late-term abortion is justified as a form of self-
defence to get rid of involuntary servitude and a form of slavery caused
by pregnancy.63 Instances of partial-birth abortion performed on foe-
tuses with chromosomal abnormalities, performed under the guise of
 Sex Selection and Medical ­Termination of Pregnancy 383

reducing suffering, threaten the best interests of the mother and infant.
It is suggested that an alternative for parents faced with the decision to
terminate their pregnancy is a perinatal hospice. A perinatal hospice
recognizes the value of bringing these infants to term by treating them
as beings conceived with a tangible future. This alternative is preferred
because of post-termination psychological distress and because biblical
teachings64 emphasize the dignity and worth of each foetus.65

No Right of Objection for Any Person Other than the

­Patient or Guardian
Janaway v. Salford Area Health Authority66 was a case of a conscientious
objector to abortion who was neither the patient nor any near relation
or even a doctor. A medical secretary refused to type a letter referring
patient for abortion by a doctor as conscientiously objecting to the
treatment proposed. The question was whether the request to the sec-
retary to type the letter meant any requirement to ‘participate in any
treatment’ in the context of the UK law of Abortion, Act, 1967, which
under Section 4(1) empowered a person participating in the treatment
to conscientiously object to the treatment. In consequence of her con-
tinued refusal to type any such letters, the authority dismissed her. On
an application for judicial review, she sought a declaration that by rea-
son of her conscientious objection she was not under a duty to carry
out work of such a nature.The House of Lords held that the expression
‘participate’ in Section 4(1) of the Abortion Act, 1967, should be given
its ordinary and natural meaning for it was not being used in a criminal
context and it had not been the intention of the Parliament to import
into Section 4(1) the criminal law concept of principal and accessory.
To ‘participate in any treatment authorised by this Act’ meant actually
to take part in treatment administered in a hospital or other approved
place in accordance with Section 1(3) for the purpose of terminating
a pregnancy.  The applicant in typing a letter that referred a patient to a
consultant with a view to a possible termination of a pregnancy under
Section 1 would not have been participating in treatment authorised
by the act.
In Doe, et al. v. Bolton, Attorney General of Georgia, et al.,67 the US
Supreme Court similarly held that Supreme Court will not pronounce
upon the propriety of a challenge by nurses, clergymen, social workers,
384 Medicine and Law

and nonprofit corporations favouring abortion reform to a state’s crimi-

nal abortion statutes where the issues they seek to litigate are sufficiently
and adequately presented by challenges to the statutes filed by a married,
pregnant woman who desires an abortion, and by a group of state-
licenced physicians against whom the statutes operate more directly.

notes
1  The challenge to the constitutional vires of the act was repulsed by a divi-
sion bench of the Bombay High Court in Vijay Sharma and Mrs Kirti Sharma
v. Union of India (UOI) through the Ministry of Law and Justice and Ministry of
Health and Family Welfare AIR (2008) Bom 29, 2007(6) All MR336, 2007(5)
Bom CR 710.
  2  Annual Report (2005) on the implementation of the Pre-conception and
Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, PNDT
Division, Ministry of Health and Family Welfare, Government of India.
 3  Census 1991 and 2001, Office of the Registrar General and Census
Commissioner, Ministry of Home Affairs Note.
  4  The act obtained enforcement thanks to Supreme Court’s directions in
Central Enquiry into Health & Allied Themes (CEHAT  ) v. Union of India (2003)
 

8 SCC 398 to the central and state governments and securing from them
affidavits giving details ofthe fact of constitution and notification of AAs under
the act to make the provisions functional by appointing individuals to man
the offices created for that purpose. A challenge to the constitutionality of
the act as offending Article 21 of the Constitution was rejected by a division
bench of the Bombay High Court in Vinod Soni v. Union of India 2005 Crl LJ
3408, 2005(4) RCR (Crl) 590, 2006(1) CrlCC 970. A subsequent selective
challenge to the some of the sections was also rejected by the Bombay High
Court in Vijay Sharma v. Union of India AIR (2008) Bom 29. In many states,
even AAs had not been notified who could initiate action in a criminal court.
The states have fallen in line one by one after the directions from Supreme
Court and the high courts. See also Hemaanta Rath v. Union of India AIR
(2008) Ori 71 for directions issued to the state for notification of AAs under
the act within a time frame.
  5  Section 3A of the act.
  6  Section 4, ibid.
  7  Section 6, ibid.
  8  Section 22, ibid.
  9  Rule 3A, inserted vide GSR, 109 (e) dt 14-2-2003.
10  Sections. 18 and 19.
 Sex Selection and Medical ­Termination of Pregnancy 385

11  Section 23.

12  2006(2) FJCC 377.
13  M.I. Clinic Pvt Ltd v. Appropriate Authority, PNDT Act,AIR (2005)
Bom 26.
14  Section 23, PNDT Act.
15  2010(2) RCR (Civil) 211.
16  See Vicki G. Norton, ‘Unnatural Selection: Non-therapeutic Pre-
implantation Genetic Screening and Proposed Regulation’, UCLA L. Rev.
41(1994): 1581, 1600, 1604–6. She notes the concern that parents will use
reproductive technology to produce children who will satisfy the parents’
financial and emotional desires, not the child’s best interests.
17  Eric T. Jeungst quotes the President’s Commission for the Study of Ethical
Problems in Medicine and Biomedical and Behavioral Research as stating,
‘taken to an extreme, this attitude treats a child as an artifact and the repro-
ductive process as a chance to design and produce human beings according
to parental standards of excellence’. See ‘Prenatal Diagnosis and the Ethics of
Uncertainty’, in Monagle and Thomasma (eds), Health Care Ethics, Critical Issues
for the 21st Century (Rockville, Maryland: Aspen Publishers Inc., 1988), pp. 15,
23. Gail Vines asserts that sex selection may give parents a feeling of control
over reproduction, but leaves them less able to cope when things go wrong. See
‘The Hidden Cost of Sex Selection’, New Scientist (1 May 1993): 13.
18  Rachel E. Remaley, ‘The Original Sexist Sin: Regulating Preconception
Sex Selection Technology’, Health Matrix 10: 249.
19  Esfandiary, argues in favour of the interests of children in preserving indi-
viduality; see ‘The Changing World of Genetics and Abortion:Why the Women’s
Movement should Advocate for Limitations on the Right to Choose in the Area
of Genetic Technology’, Wm. & Mary J.Women & L.4 (1998): 499, 500.
20  The challenge to the constitutional validity of the act before the Calcutta
High Court in Murari Mohan Koley v. The State and Anr (2004) 3Cal LT609
on the ground that the act violated Article 21 of the Constitution was dis-
missed. A similar challenge before the Rajasthan High Court in Nand Kishore
Sharma and Ors. v. Union of India (UOI  ) and Anr, AIR (2006) Raj166 (2006)
WLC(Raj)UC411 also failed.
21  See further commentaries on the act in Chapter 2. The MCIR regards
sex determination as constituting unethical medical practice.
22  Bharatbhai Dhanjibhai Modi v. Collector and Ors, AIR (2008) Guj106,
(2008) GLH(1)772, (2008)2GLR1128.
23  (2009) (5) RAJ 306, (2009) (4) RCR (civil) 259, (2009) (4) RCR (crl)
233.
24  Section 2(d): ‘Registered medical practitioner’ means a medical practitio-
ner who possesses any recognized medical qualification as defined in Clause
386 Medicine and Law

(h) of Section 2 of the Indian Medical Council Act, 1956 (102 of 1956),
whose name has been entered in a state medical register and who has such
experience or training in gynaecology and obstetrics as may be prescribed by
rules made under this act. In Doe et al. v. Bolton, Attorney General of Georgia,
et al. 410 US 179; 93 S. Ct. 739; 35 L. Ed. 2d 201; 1973 US LEXIS 112, the
Supreme Court ruled that only hospitals accredited by the Joint Committee
on Accreditation of Hospitals could perform abortions to be unconstitutional
as being not reasonably related to the purposes of the statute. It also ruled
that a state criminal abortion statute’s requirement that two licenced physi-
cians concur that the judgment of a pregnant female’s doctor that an abortion
should be performed is unconstitutional has no rational connection with the
patient’s needs, and unduly infringes on the physician’s right to practice.
25  Section 3(2)(i).
26  Section 3(2)(ii).
27  Explanation to Section 5.
28  Section 5.
29  Explanation 1 to Section 3(2).
30  Explanation 2 to Section 3(2).
31 In Dr Nisha Malviya and Another v. State of MP2000Cri LJ671, the com-
plainant victim of rape denied having consented to the termination of a preg-
nancy. It was held to have caused the disappearance of important evidence of
rape punishable under Section 201, IPC read with 314, IPC.
32  Section 3(3).
33  2003VIAD (Delhi)510, 106(2003)DLT143.
34  Dr Usha Sharma v. State, Delhi High Court in Crl MC No. 2773/2004
and Crl M No. 8782/2004 Decided On: 17.11.2006.
35  Shri Bhagwan Katariya and Others v. State of MP 2001(4)MPHT20 (CG).
36  State represented by P.P., of High Court v. Dr Joaquim Antonio D’Silva 2000(5)
Bom CR 609.
37  1994(2)ALT(Cri)134,1994(43)BLJR410,1994CriLJ3851,1994(2)Crimes
100(SC), JT1994(3)SC225, 1994(1) KLT 872 (SC), 1994(2)SCALE563, (1994)
3SCC430, [1994]3SCR486, 1995(1)UJ620(SC).
38  Section 3(4).
39  Section 2(a). In the US, the state laws that originally required consent for
abortion for a minor from her parent slowly became less rigorous when the
states enacted laws that prohibited the physicians from performing an abortion
on a pregnant minor until 48 hours after a written notice of the pending abor-
tion is delivered to her parent or guardian.The passage of Mass. Gen. Laws Ann.
ch. 112, § 12S, which required minors to get parental consent for an abortion,
prompted a constitutional challenge to the provision by a physician and some
others joining him that the consequences of denying a minor the right to
 Sex Selection and Medical ­Termination of Pregnancy 387

make a decision regarding her pregnancy were grave, the district court held
the law to be bad. The Supreme Court vacated the judgment and directed
the decision from the State Supreme Court in the decision cited as (Bellotti,
Attorney General of Massachusetts, et al. v. Baird et al. 443 US 622; 99 S. Ct. 3035;
61 L. Ed. 2d 797; 1979 US LEXIS 17).Utah Code Ann. § 76-7-304(2), which
required parent’s consent of abortions under certain circumstances, was held to
be constitutional and an action that sought to prohibit the governor and the
attorney general from enforcing it was dismissed by the US Supreme Court
in HL v. Matheson, Governor of Utah, et al. 450 US 398, 101 S.Ct.1164. In Kelly
A. Ayotte, Attorney General of New Hampshire, Petitioner v. Planned Parenthood of
Northern New England, et al., 546 US 320; 126 S.Ct. 961; 163 L. Ed. 2d 812;
2006 US LEXIS 912; 74 USLW 4091; 19 Fla. L. Weekly Fed. S 67, the US
Supreme Court upheld the constitutional validity of Prenatal Notification
Prior to Abortion Act except for the failure to provide an emergency health
decision permitting a physician to perform an abortion in a medical emer-
gency without parental notification.The court held: First, states have the right
to require parental involvement when a minor considers terminating her
pregnancy. Second, a state may not restrict access to abortions that are ‘neces-
sary, in appropriate medical judgment for preservation of the life or health of
the mother’. Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833, 879,
112 S.Ct. 2791, 120 L. Ed. 2d 674 (plurality opinion). Third, New Hampshire
has not taken issue with the case’s factual basis: In a very small percentage of
cases, pregnant minors need immediate abortions to avert serious and often
irreversible damage to their health. New Hampshire has conceded that, under
this Court’s cases, it would be unconstitutional to apply the act in a manner
that subjects minors to significant health risks.
In an earlier decision rendered in 1997 in Martin D. Lambert, Gallatin
County Attorney v. Susan Wicklund et al., 520 US 292; 117 S.Ct. 1169; 137 L.Ed.
2d 464; 1997 US LEXIS 2077; 65 USLW 3662; 97 Cal. Daily Op. Service 2232;
97 Daily Journal DAR 4159, the Supreme Court had upheld the validity of
Montana code requiring parental notice, so long as the law provided adequate
exceptions in cases (i) where the minor had a court appointed guardian, the
minor is sufficiently mature to decide whether to have an abortion; (ii) there
is evidence of a pattern of physical, sexual, or emotional abuse of the minor
by one of her parents, a guardian, or a custodian; or (iii) the notification of a
parent or guardian is not in the best interests of the minor. Similar reasoning
was adopted while holding parental notification required under Ohio law
to be constitutionally valid, Ohio v. Akron Center for Reproductive Health et al.
497 US 502; 110 S. Ct. 2972; 111 L. Ed. 2d 405; 1990 US LEXIS 3302;
58 USLW 4979. The Supreme Court, however, ruled as unconstitutional the
Minnesota law that required both the parents to be notified as constituting
388 Medicine and Law

an ­unreasonable intrusion on choices concerning the arrangements of the

household in Hodgson et al. v. Minnesota et al. 497 US 417; 110 S. Ct. 2926; 111
L. Ed. 2d 344; 1990 US LEXIS 3303; 58 USLW 4957.
40  HCMP No. 264 of 1993/HCP No. 1450 of 1993 decided on 2.12.1993.
41  Section 2(b) of the MTP Act.
42  (2009) 9 SCC 1, 2009(5) RAJ 306.
43  Section 4.
44  Surendra Chauhan v. State of MP AIR (2000) SC 1436, (2000) (1)
ALD(Cri)869, 2000CriLJ1789, JT (2000) (3)SC507, (2000) (2)MPHT421,
RLW2000(2)SC340, (2000) (2)SCALE513, (2000)4SCC110, (2000)
2SCR515, (2000) (2)UJ898(SC).
45  Section 5(2).
46  IPC, Section 312.
47  See Section 316, IPC. This includes a doctor is not authorized to termi-
nate pregnancy, although the woman had consented to medical termination,
Surendra Chauhan v. State of MP(2000) 4 SCC 110, 2000 SCC (Crl) 772.
48  Explanation to Section 316, IPC.
49  See Section 3(1): ‘Not withstanding anything contained in the Indian
Penal Code (45 of 1860), 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.’
50  The following information was available to the Supreme Court of USA
when it was deciding Roe v. Wade 410 U.S. 113, 35 L. Ed. 2d 147;93 S. Ct. 705
(1973), which it secured as opinions of experts:
When does the heart begin to beat?
At 18 days [when the mother is only four days late for her first menstrual
period], and by 21 days it is pumping, through a closed circulatory system, blood
whose type is different from that of the mother. J.M. Tanner, G. R. Taylor, and
the editors of Time-life Books, Growth (New York: Life Science Library, 1965)
When is the brain functioning?
Brain waves have been recorded at 40 days on the Electroencephalogram
(EEG). H. Hamlin, ‘Life or Death by EEG’, JAMA (12 October 1964): 120.
Brain function, as measured on the Electroencephalogram, ‘appears to be
reliably present in the fetus at about eight weeks gestation’, or six weeks after
conception. J. Goldenring, ‘Development of the Fetal Brain’, New England Jour.
of Med., (26 August 1982): 564.
When does the developing baby first move?
‘In the sixth to seventh weeks. . . . If the area of the lips is gently stroked,
the child responds by bending the upper body to one side and making a quick
backward motion with his arms.This is called a ‘total pattern response’ because
 Sex Selection and Medical ­Termination of Pregnancy 389

it involves most of the body, rather than a local part.’ L. B. Arey, Developmental
Anatomy, 6th edition (Philadelphia: W. B. Sanders Co., 1954).
At eight weeks, ‘if we tickle the baby’s nose, he will flex his head backwards
away from the stimulus.’ A. Hellgers, M.D., ‘Fetal Development, 31’, Theological
Studies, 3(7) (1970): 26.
Another example is from a surgical technician whose letter said, ‘When we
opened her abdomen (for a tubal pregnancy), the tube had expelled an inch-
long fetus, about 4-6 weeks old. It was still alive in the sack. “That tiny baby
was waving its little arms and kicking its little legs and even turned its whole
body over.” ’ J. Dobson, Focus on the Family Mag., (August 91): 16.
When are all his body systems present?
By eight weeks (two months). Hooker and Davenport, The Prenatal Origin
of Behavior (University of Kansas Press, 1952).
When does he start to breathe?
‘By 11 to 12 weeks (three months), he is breathing fluid steadily and con-
tinues so until birth.
At birth, he will breathe air. He does not drown by breathing fluid with-
in his mother, because he obtains his oxygen from his umbilical cord. This
breathing develops the organs of respiration.’ ‘Life Before Birth’, Life Magazine,
(30 April 1965): 13.
‘Maternal cigarette smoking during pregnancy decreases the frequency
of fetal breathing by 20%. The “well documented” higher incidence of pre-
maturity, stillbirth, and slower development of reading skill may be related
to this decrease.’ 80 F. Manning, ‘Meeting of Royal College of Physicians &
Surgeons’, Family Practice News (15 March 1976).
‘In the 11th week of gestation fetal breathing is irregular and episodic.
As gestation continues, the breathing movements become more vigorous and
rapid.’ C. Dawes, ‘Fetal Breathing: Indication of Well Being’, Family Practice
News (16 March 1976): 6.
Episodic spontaneous breathing movement have been observed in the
healthy human fetus as early as ten weeks gestational age. Conners et al.,‘Control
of Fetal Breathing in the Human Fetus’, Am J. OB-GYN (April 89): 932.
And 11 weeks (nine weeks post-fertilization). Cunningham,Wm. Obstetrics
(1993): 193.
See J.C. Willke, ‘Why Can’t We Love Them Both’, Chapter 12, ‘Fetal
Development’, at http://www.abortionfacts.com/online_books/love_them_
both/why_cant_we_love_them_both_12.asp#How%20e arly%20do%20some
%20organs%20form?
51  ‘Ethics’, Encyclopedia Britannica Online, sub verso, http://www.britan-
nica.com/eb/article-252583 (last visited 8 August 2010).
52  410 US 113, 35 L. Ed. 2d 147;93 S. Ct. 705 (1973).
390 Medicine and Law

53  Charles I. Lugosi powerfully argues against the judgment on the premise
that the 14th amendment was intended to protect people from discrimina-
tion and harm from other people. Racism is not the only thing people need
protection from. As a constitutional principle, the Fourteenth Amendment
is not confined to its historical origin and purpose, but is available now to
protect all human beings, including all unborn human beings. The Supreme
Court can define ‘person’ to include all human beings, born and unborn.
It simply chooses not to do so. Science, history, and tradition establish that
unborn humans are, from the time of conception, both persons and human
beings, thus strongly supporting an interpretation that the unborn meet
the definition of ‘person’ under the 14th amendment. The legal test used
to extend constitutional personhood to corporations, which are a­rtificial
‘persons’ under the law, is more than met by the unborn, demonstrating that
the unborn deserve the status of constitutional personhood. There can be no
‘rule of law’ if the Constitution continues to be interpreted to p­ erpetuate
a discriminatory legal system of separate and unequal for unborn human
beings.‘Conforming to the Rule of Law: When Person and Human Being
Finally Mean the Same Thing in Fourteenth Amendment Jurisprudence’,
Issues L. & Med. 119: 22.
54  This view has been stoutly contested in the article, John Keown, ‘Back
to the Future of Abortion Law: Roe’s Rejection of America’s History and
Traditions’, Issues in Law & Medicine (Nat’l Legal Center for Medically
Dependent & Disabled, 2006). He concludes with resounding historic mate-
rial for his conclusion, ‘the primary purpose of the prohibition on abortion,
both at common law and by statute, has been the protection of the unborn.
There is, moreover, cogent evidence that the law’s disapproval of abortion
has reflected social mores. Professor Dellapenna’s recent exhaustive study
concludes: ‘all groups in society (viewed collectively, even though some indi-
viduals dissented within any given group), including women, people of color,
lawyers, doctors, clergy, journalists, and others, supported the prohibition of
abortion until very recent times.’
55  505 US 833, 846 (1992).
56  R. v. Morgentaler (No. 2), [1988] 1 SCR 30 (Can.).
57  Winnipeg Child and Family Servs. v. G., [1997] 3 SCR 925 (Can.).
58  Judgment of the First Senate of 25 February 1975, 39 Bverf GE 1, aff’d,
Judgment of the Second Senate of the 28 May 1993, 88 Bverf GE 203, trans.
in Robert E. Jonas and John D. Gorby, ‘West German Abortion Decision: A
Contrast to Roe v. Wade’, Marshall J. Pract. & Proc.9 (1976): 605.
59  The change in law was triggered by an angry global response to the
tragic death on 28th October 2012 of Savita Halappanavar, a woman of Indian
origin, who had a miscarriage but denied abortion inspite of the fact that her
 Sex Selection and Medical ­Termination of Pregnancy 391

17 weeks foetus was not viable because the law did not permit abortion when
the foetus had a beating heart..
60  In this climate, where the lives of people with disability are not valued,
the tradition of neutrality in genetic counselling actually operates to sup-
port eugenic practices. See Dorothy Wertz and John Fletcher, ‘Sex Selection
Through Prenatal Diagnosis: A Feminist Critique’, in Helen Bequaert
Holmes and Larau Purdy (eds), Feminist Perspectives in Medical Ethics (Indiana:
Indiana University Press, 1992), p. 241.
61  Jennifer Fitzgerald, LL.B. ‘Geneticizing Disability: The Human Genome
Project and the Commodification of Self ’, Issues L. & Med.14 (1998):147. She
also argues that if we understand disability, along with gender, race, and class,
as part of the other created by the dominant paradigm, practices such as selec-
tive abortion then become something other than mere health issues.Working
from an understanding of these frameworks of disability, these practices
become qualitatively different from practices such as simply providing rubella
immunizations to young women. They are embedded in the desire to root
out difference, to take life simply because it differs from the norm, because it
belongs to the other. T  he motivation goes beyond community health for the
desire to eliminate the difference exists even where the difference is something
as unthreatening to one’s health as a cleft palate.
62  Christopher Newell,‘Some Ethical Issues Associated with Genetic Engineering
for People with Disabilities’, Australian Disability Rev. (February 1992): 79.
63  Nancy J. Hirschmann, ‘Subversive Legacies: Learning From History/
Constructing the Future: Abortion, Self-defense and Involuntary Servitude’,
Tex. J.Women & L. 13(2003): 41.
64  ‘Who gives man his mouth? Who makes him deaf or mute? Who gives
him sight or makes him blind? Is it not I, the Lord?’ Exodus 4:11. See also John
9:3 (Specific biblical instances of such divine prerogative include the case of
the man born blind ‘so that the work of God might be displayed in his life’).
65  Byron C. Calhoun, James S. Reitman, and Nathan J. Hoeldtke, ‘Perinatal
Hospice: A Response to Partial Birth Abortion for Infants with Congenital
Defects’, Issues L. & Med.13(1997), p. 125. According to them, perinatal death
presents an occasion to acknowledge and mourn our collective mortality and
to contemplate the potential value and purpose of all life. A perinatal hospice
supports parents through their grief when their infant dies and maximizes the
opportunity for authentic mourning. Despair over the prospect of suffering
and death often leads to the discovery of new meaning in life, even when it
is deformed and all too brief: ‘It is better to go to a house of mourning/than
to go to a house of feasting,/for death is the destiny of every man;/the living
should take this to heart.’ Such authentic mourning can transform one’s initial
response to overwhelming suffering into the conviction that ‘Anyone who
392 Medicine and Law

is among the living has hope—even a live dog is better off than a dead lion!’
The example of a loving and supportive delivery of a newborn with trisomy
18 with multiple anomalies who succumbs moments after birth illustrates this
opportunity to ‘take to heart’ the implications of mortality and transform the
dread and grief of this experience into new meaning.
66  (1989) AC 537.
67  410US 179; 93 S.Ct. 739; 35 LEd 2d 201; 1973 US LEXIS 112.