Forced Abortion: The Non-Consensual Termination of Pregnancy

“Hello there! I’m here to provide you with a bit of information on what forced abortions are, its various facets, and the Indian laws relevant to this abuse. Experiencing abuse in any form is NOT OKAY, but what you are experiencing as a result of abuse is valid. What you, as a bystander, are going through while supporting a survivor is absolutely okay and typical too!  If you need additional resources or just someone to talk to, feel free to reach out to Imaara Foundation."

Written By: Kashmeera Balamurale

What is abortion and what are its types?

1. Abortion: An early termination of pregnancy, which can happen spontaneously or deliberately.

2. Spontaneous abortion: A woman suffering from miscarriage.

3. Induced abortion: A woman who ends her pregnancy through a surgical or medical method.

Abortion has been made legal in India under various circumstances. Currently, the law on abortion is regulated by the Medical Termination of Pregnancy Act 1971 (“MTP Act”).

Forced abortion:

• Causing a woman to abort a fetus through fraud, coercion, or threats.

• Uses a situation to their advantage where the pregnant person is unable to provide consent.

• Pursuant to Section 312 of the Indian Penal Code, whoever voluntarily causes a woman with child to miscarry, not done in good faith commits a crime (Hickok, 2022). The provision is read as follows:-

“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 imprisonment 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.”

* If a woman is quick with child, it means she is at an advanced stage of pregnancy.

What are the abortion rates in India?

Despite the MTP Act, abortion in India continues to occur at an alarming rate. It has been reported that India has one of the highest abortion rates in the world (Hodges, 2019) (Iyer, 2017). Approximately, 15.6 million abortions are committed annually in the country.

The statistics or numbers reported by the government does not include abortions that take place outside an approved facility or self-administered abortions. Many women resort to unsafe abortions, without a doctor’s supervision or medical counselling. Such alternatives have contributed significantly to maternal death over the years (Supra, n.d.).

When can a pregnancy be terminated in India?

Under the MTP Act, a pregnancy may be terminated by a registered medical practitioner, if:

In 2021, the MTP Act was amended to raise the maximum gestational limit at which a woman may obtain medical abortion.

Under the current provisions, a pregnancy may be terminated by a registered medical practitioner, if:

From the above provisions, a termination of pregnancy can only be carried out by a registered medical practitioner. A registered medical practitioner has been defined as a medical practitioner:-

• who possesses any recognized medical qualification under clause (h) of the Indian Medical Council Act, 1956;

• whose name has been entered in a State Medical Register; and

• who has experience or training in a gynecology and obstetrics.

[Section 3, The Medical Termination of Pregnancy (Amendment) Act, 2021.]

[Section 2, MTP Act, 1971.]

Where can a pregnancy be terminated?

A pregnancy under the MTP Act may only be terminated at:-

• a hospital established or maintained by the Government; or

• a place that is approved by the Government or District Level Committee constituted by the Government chaired by either the Chief Medical Officer or District Health Officer.

[Section 4, MTP Act, 1971.]

Who is eligible for a termination of pregnancy?

Those eligible for termination of pregnancy up to 24 weeks are:

• survivors of sexual assault or rape or incest;

• minors;

• woman with change of marital status during the ongoing pregnancy (widowhood or divorce);

• woman with physical disabilities;

• mentally ill woman;

• woman with fetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

• woman with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by woman.

In 2022, there were new developments introduced by the Indian judiciary with regards to the eligibility of women for termination of pregnancy. The Indian Supreme Court had in July 2022 ruled that all women, regardless of their marital status, are entitled to abortions up to 24 weeks into their pregnancies (Saraswati, 2022). The judgment was delivered after a plea by an unmarried 25-year-old woman was heard (Raha, 2022).

Now, as the law stands, even an unmarried woman can invoke the MTP Act for abortion up to 24 weeks.

[Rule 3-B, the Medical Termination of Pregnancy Rules, 2003.]

Why do forced abortions occur?

They mainly occur due to the sex of the fetus. With technological advancement, many have opted for a pre-natal sex determination. Multiple diagnostic techniques and tools (including ultrasounds) shows an accurate image of the sex of the baby before birth (Vaze, 2021).

Forced abortions are also widely known as sex-selective abortions or female feticide.

Sex-selective abortions occur because women are often perceived by society as:

• economic burden; and

• a liability;

Many Indian households prefer a male child over a female. They tend to believe that males have more societal value than a woman.

What are the consequences of sex selective abortions?

Sex-selective abortions, in many ways, exacerbate crimes against women. In Delhi, after a pre-natal determination which confirmed the fetus to be a female, the pregnant mother was forced to swallow down an abortion pill, without a doctor’s supervision (Families Want a Son at Any Cost, n.d.). In Mumbai, a 40-year-old woman had to go through 8 abortions to fulfil her family’s desire to give birth to a boy. She was administered with more than 1,500 hormonal and steroid injections. In Rajasthan, a woman had eight pregnancies in just 11 years of her marriage.

It also affects the physical and mental well-being of a woman. As a woman goes through multiple abortions, her body tends to grow weaker and she is more vulnerable to pelvic inflammatory diseases ( Side Effects and Risks of Abortion, n.d.). She may also experience anxiety and depression in the long run.

Importantly, forced abortions loot away a woman’s right towards her own body. She has little or no say at all in her reproductive choices. All decisions regarding her marital and family life is made by a third party, be it her own family members or medical practitioners.

Gender determination tests?

In 1994, the Indian government passed the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (‘PCPNDT’). This Act:

• prohibits sex selection, before or after conception;

• prevents misuse of sex determination which leads to female feticide.

• regulates pre-natal diagnostic techniques for the purposes of detecting:

- genetic abnormalities;

- metabolic disorders;

- chromosomal abnormalities;

- congenital malformations; or

- sex-linked disorders

In short, this Act illegalizes pre-natal sex determination of fetuses. Sex selection has been defined as [Section 2, PCPNDT]:

“any procedure, technique, test or administration or prescription or provision of anything for the purpose of ensuring or increasing the probability that an embryo will be of a particular sex.”

Section 3A prohibits any person (including a specialist or specialists) to conduct sex selection on a woman or a man or on both on any tissue, embryo, conceptus, fluid or gametes derived from from either or both of them.

Further, in Section 4(1) a pre-natal diagnosis is prohibited except for detection of any of the following abnormalities [Section 4(2), PCPNDT]:

• chromosomal abnormalities;

• genetic metabolic diseases;

• haemoglobinopathies;

• sex-linked genetic diseases;

• congenital anomalies;

• any other abnormalities or diseases.

There are further exceptions to the use pre-natal diagnostic test, which are [Section 4(3), PCPNDT]:

• age of the pregnant woman is above 35 years;

• the pregnant woman has undergone 2 or more spontaneous abortions or fetal loss;

• the pregnant woman had been exposed to teratogenic agents;

• the pregnant woman or spouse has a family history of mental retardation or physical deformities (spasticity or genetic disease);

• other conditions as specified by the Central Supervisory Board.

Though there are certain exceptions to the general rule, communication of the sex of the fetus to the pregnant woman or her relatives by words, signs or any other manner is still illegal [Section 5(2), PCPNDT].

Pursuant to Section 6, the determination of the sex of a fetus is prohibited by any pre-natal diagnostic techniques (including ultrasonography) [Section 6, PCPNDT].

What are the references for this article?

Bhumika Saraswati. (29 September 2022). India’s top court rules abortions up to 24 weeks legal, regardless of marital status. https://www.pbs.org/newshour/world/indias-top-court-rules-abortions-up-to-24-weeks-legal-regardless-of-marital-status#:~:text=NEW%20DELHI%20(AP)%20%E2%80%94%20India's,were%20limited%20to%2020%20weeks.

‘Families want a son at any cost.’: the women forced to abort female foetuses in India. Retrieved from https://www.theguardian.com/global-development/2021/dec/27/families-want-a-son-at-any-cost-the-women-forced-to-abort-female-foetuses-in-india.

Fr.Mark Hodges. (19 July 2019). India Has One of the Highest Abortion Rates in the World. Retrieved from https://www.hli.org/2019/07/india-has-one-of-the-highest-abortion-rates-in-the-world/.

Kimberly Hickok. (4 August 2022). What is an abortion? Retrieved from https://www.livescience.com/what-is-abortion.

Malathy Iyer. (12 December 2017). 1.6 crore abortions in India, 81% at home: Study. Retrieved from https://timesofindia.indiatimes.com/india/1-6-crore-abortions-a-year-in-india-81-at-home-study/articleshow/62030066.cms.

Rule 3-B, the Medical Termination of Pregnancy Rules, 2003.

Section 3, The Medical Termination of Pregnancy (Amendment) Act, 2021.

Shuma Raha. (20 July 2022). India’s abortion law: Why it fails mnay women. Retrieved from https://www.deccanherald.com/opinion/indias-abortion-law-why-it-fails-many-women-1128399.html.

Side effects and risks of abortion. Retrieved from https://fcws.org/side-effects-risks-abortion/.

Sonia Vaze. (2021). Un-Natural Sex Selection: Female Feticide in India. Retrieved from https://pha.berkeley.edu/2021/04/10/un-natural-selection-female-feticide-in-india/.