Problematisation of Sex-Selective Conception and Abortion in India: Implications and Legal Responses
Keywords:
Sex-Selective Conception, Sex-Selective Abortion, Gender Injustice, Failures of ImplementationAbstract
Discriminatory practices against women have been a common problem in Indian society since many decades. This is attributed to the rudimentary factor of a patriarchal dogma that is deeply rooted in our society. Women were mostly treated as a liability on the family and hence, treated sans dignified existence. Consequentially, inhuman social evils like female infanticide and female foeticide have been rampant. To aggravate the already persisting problem, modern technology in the form of assisted reproductive technology is being misused today for sex-selective conception. On account of such gender discriminatory practices, the declining sex ratio in India is still persisting. To remedy the evil of gender injustice, the Constitution of India envisions an egalitarian society to empower women. The attainment of the goal of gender equality is one of the most crucial Constitutional goals. In India, sex-selective conception and sex-selective abortion has been prohibited by the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (Act 57 of 1994), the Medical Termination of Pregnancy Act, 1971 (Act 34 of 1971) and the Indian Penal Code, 1860 (Act 45 of 1860). The effective implementation of these laws is still not in sight. It is thus, a necessity to critically understand the gravity of the problems highlighted by taking into account of the social and cultural factors along with the existing legal framework.
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i
“Embryo” is defined as a developing human organism after fertilization till the end of eight weeks (fifty-six days)
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iii The Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (Act 57 of
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x The State of World Population is an annual report published by the United Nations Population Fund (UNFPA).
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xii Ibid.
xiii Allie Declares, India’s Skewed Sex Ratio and Its Long-Term Implications, Kennedy School Review, A Harvard
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xv Ibid.
xvi (2013) 4 SCC 1.
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xviii (2016) 10 SCC 265.
xix See generally, M.G. Badappanavar v. State of Karnataka, AIR 2000 SC 260; M. Nagaraj v. Union of India,
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xx M.P. Jain, Indian Constitutional Law, 937 (LexisNexis, Haryana, 7th edn., 2014, Reprint (Oct. 2016).
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xxii See Constitution of India, art. 39(d).
xxiii The Convention on Elimination of all Forms of Discrimination Against Women, 1979, art. 2(b).
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xxvi The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (Act 57 of
1994), s. 2(i) defines “pre-natal diagnostic procedures” as all gynaecological or obstetrical or medical
procedures such as ultrasonography, foetoscopy, taking or removing samples of amniotic fluid, chorionic villi,
blood or any other tissue or fluid of a man, or of a woman for being sent to a Genetic Laboratory or Genetic Clinic
for conducting any type of analysis or pre-natal diagnostic tests for selection of sex before or after conception.
xxvii The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (Act 57 of
1994), s. 2(k) defines “pre-natal diagnostic test” as untrasonography or any test or analysis of amniotic fluid,
chorionic villi, blood or any other tissue or fluid of a man, or of a pregnant woman, or of a conceptus conducted
to detect genetic or metabolic disorders or chromosomal abnormalities or congenital anomalies or
haemoglobinopathies or sex-linked diseases.
xxviii The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (Act 57 of
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xxix Central Supervisory Board is constituted under the Pre-conception and Pre-natal Diagnostic Techniques
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xxx The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (Act 57 of
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xxxi (2003) 8 SCC 412.
xxxii (2018) 3 SCC 229.
xxxiii (2013) 4 SCC 1.
xxxiv The Medical Termination of Pregnancy Act, 1971 (Act 34 of 1971), s. 3(2), (as amended in 2021).
xxxv The Medical Termination of Pregnancy Act, 1971 (Act 34 of 1971) (as amended in 2021), s. 3(2).
xxxvi Explanation 1 and 2 under Section 3(2), Medical Termination of Pregnancy Act, 1971 (Act 34 of 1971).
xxxvii The Medical Termination of Pregnancy Act, 1971 (Act 34 of 1971), s. 3(2), Explanation 2B.
xxxviii Section 5(1), Section 3(2), Medical Termination of Pregnancy Act, 1971 (Act 34 of 1971).
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