Abortion Law and the Unregulated Business of Female Sex-Selective Abortions in India

Dania Thomas

Lecturer in Law,
School of Law,
Keele University

[email protected]

Copyright © 2007 Dania Thomas
First published in Web Journal of Current Legal Issues

Summary

In 2005, the sex determination business in India was valued at over Rs. 5 billion. The pro-life/pro-choice frame of the contemporary debate on the current, upward trend in female sex-selective abortions overlooks this economic aspect. This paper examines the law regulating abortions and pre-natal sex-determination to reveal that the business of sex-selective abortions is unregulated. It specifically clarifies the process by which the law links the social demand for sons that require repeated female sex-selective abortions with the supply of reproductive services coherently (and not problematically) with the ongoing project of economic liberalisation. The analysis of the law in this paper does not provide a template for legal reform and is not a defence of rights. It sets out a conceptual framework to clarify the process by which the demand and supply continuum that underpins the market for reproductive services is sustained by repeated and frequent abortions, with unaccounted and disproportionate costs to maternal health.

Contents

Bibliography

Introduction

The recent media glare on the proliferating practice of female sex-selective abortions is distinctively pro-life - highlighting the disproportionate number of female foetuses aborted. The July 2007 episode of ‘We the people’ aired on a popular current affairs channel is the most recent instance (See also Sen A. 2003; and Aravamudan 2007).  The pro-life tone of the current debate is a slippery slope in that respecting the rights of the female child also questions the reproductive choices that women seeking abortions (abortion-seekers) make. This naturally has led to a concern expressed by feminist scholars that the pro-life emphasis may actually undermine the legalisation of abortion itself and thereby diminish reproductive choice(Menon 2004). Interestingly, medical practitioners involved in the debate also take the same view, albeit for different reasons, one of them being profit.  However, profits seldom feature in the heated pro-choice/pro-life debate and consequently the evidence that since liberalisation, sex-determination and sex-selective abortions have become big business grossing Rs. 5 billion, according to some estimates. This economic aspect is overlooked in the contemporary debate.

Liberalisation or the process by which tariff barriers between the Indian and the global market for reproductive services are dismantled, give women greater access to sex-determination technology. It is not surprising therefore, that it has also thrown up opportunities for the business of abortions to flourish, and indeed it has. However, profits from abortion represent only one aspect of the possibly, irreversible changes that liberalisation brings about in its wake.

In 2001, India recorded the lowest inter-census growth rate for the past fifty years. A phenomenon widely believed to account for this slow down is the rapidly decreasing female to male child sex ratio, attributed mainly to a significant upward trend in female sex-selective abortions. Population control is a welfare goal of the state and with liberalisation, markets seem to be successfully achieving goals that state-sponsored, birth control policies have failed to achieve. This raises the issue of the extent to which markets should co-opt the welfare functions of the state.

Activists working in the field of reproductive rights have constantly cited the norm 'son preference' as the reason behind the recent upward trend in the practice of female sex –selective abortions. Thus apart from increasing the profits of medical practitioners and going some way in slowing down population growth, markets are also fulfilling the social demand for sons. A demand that requires repeated female sex-selective abortions. This questions the supposed gender-neutral foundations of the market economy.

In addition to overlooking profits, the pro-life/pro-choice debate also overlooks the systemic changes engendered by liberalising the market for reproductive services.  In contrast to the individualism inherent in the pro-choice/pro-life debate, this paper argues that the upward trend in sex-selective abortions reveals a systemic problem that can be represented as follows.

Figure 1: A systemic problem

Figure 1 shows that the upward trend in female sex-selective abortions: repeated abortions increases profit, fulfils a social demand for sons and furthers a welfare goal: population control, can be represented as a systemic problem. The problem is not entirely about whether (abortion-seekers) are making the right reproductive choices by choosing to abort female foetuses or about the lives of the female foetuses aborted, but about systemic features of the legal, economic and political framework that engender a need for repeated sex-selective abortions. However, this is at a cost. The social (sons), political (welfare goals) and economic (profits) needs are fulfilled at a significant (and unaccounted) cost to maternal health – maternal mortality in India, is the second highest in the world: 22 per cent due to abortions of which 12 per cent are illegal. According to some estimates, this translates into about 660 thousand women dying every year, illegally, even though abortions have been legalised for nearly 30 years (Menon 2004). Further, the upward trend in female sex-selective abortions fulfils disparate needs as described above, and thereby obscures scrutiny of the birth control policies of the state. These erasures or silences in the contemporary debate around the issue form the context in which this paper examines the legal framework that regulates abortions and pre-natal, sex-determination technology (abortion law).

The practice, female foeticide or femicide is a two-stage process. The first stage involves the determination of the sex of the foetus in one of three ways: amniocentesis, chorionic villus sampling, or ultrasonography. The second stage consists of the therapeutic abortion (Patel,1996). Since 1971, abortion law in India was framed with a view to reduce population growth. In the absence or inadequate provision of abortion services by the state, abortion-seekers overwhelmingly access the market for reproductive services to determine foetal sex and to undergo sex-selective abortions.

The following section specifies the problem of sex-selective abortions. This is followed by an analysis of the Medical Termination of Pregnancy Act, 1971. Section four contextualises the preceding legal analysis within the ongoing project of economic liberalisation. This is followed by an analysis of the Pre-Conception and Pre-Natal Diagnostic (Prevention of Misuse) Act 2001. Section 6 sets out the conceptual framework that links the proliferating business of sex-selective abortions with the social demand for sons. This is followed by conclusions.

Female Sex-Selective Abortions: Specifying a Problem

This section sets out the evidence to support the claim that the current increase in female sex-selective abortions is significant and specifies the characteristic features of the current trend.  The current trend was inter alia established in a large (1.1 million households) survey in the Lancet and published in 2006. It revealed a direct correlation between prenatal sex determination, sex-selective abortions and declining Child Sex Ratio (CSR).  (Lancet 212)

The CSR is calculated as the number of girls per 1000 boys in the 0-6 age group. Since more boys than girls are born the world over under normal circumstances, there should normally be 950 girls to every 1000 boys. Anything below this indicates that girls are being killed either before or soon after they are born.

In 1991, there were 945 girls to every 1000 boys. However, by 2001, the number of girls in this ratio had fallen to 927. Based on conservative assumptions, the results of the Lancet survey established that the practice accounts for about 0.5 million missing female births yearly, translating over the past 2 decades into the abortion of some 10 million female foetuses.’ Under natural circumstances, given equal care, girls survive better than boys and so a CSR of 950 girls to 1000 boys usually evens out to about 1005 girls to 1000 boys. The CSR then remains more or less the same through the next few decades and given equal treatment, women are generally even better survivors than men.

For an earlier period, Sen’s ‘missing women’ revealed the widespread practice of female infanticide (Sen, 1992). It appeared that until the 1980’s, girl children usually died after they were born not while they were in the womb. By 2001, analysis of the census data show that, though more girl babies are surviving, as by then the adult sex ratio had improved marginally and the female child mortality rate had gone down. However, there was significant evidence that there was a drastic and unprecedented decline in the female babies being born. The declining CSR has characteristic features that indicate an overlap with liberalisation of the market for reproductive services as follows.

In addition, to establishing a link between declining CSR to increased female sex-selective abortions, the Lancet survey also identified women with one or two female children as being at high risk of undergoing sex-selective abortions. The category high risk indicates that access to sex-determination technology is required repeatedly and that abortion-seekers (and their families) have to co-operate with medical practitioners to ensure repeated access.  Thus, the medical practitioner (and through her increased access to sex-determination technology) seem to be playing a pivotal role in the recent trend. The centrality of the medical practitioner distinguishes this trend from the earlier reported practice of female infanticide, where traditionally village midwives instead of medical practitioners were involved and the practice itself required no access to sex-determination technology (Aravamudan 2007, 5) 

The second characteristic of declining CSR is its extensive geographic and demographic spread. Geographically, female infanticide was (and still is) prevalent in particular identifiable areas. In a state sponsored survey (in 1995) of rural households in Tamil Nadu, a southern Indian state, of the records of the Primary Health Centres revealed a “female infanticide belt” which accounted for “practically 70 per cent of all female infanticide”  (Aravamudan 2007, 24).  Further, the practice was confined to identifiable castes in the country, The same 1995 survey revealed that female infanticide was

In contrast, the CSR has declined and significantly across the entire country.  In certain states, the CSR had decreased by more than 50 points in 10 years. In Gurdaspur in Punjab for instance, there were just 729 girls to 1000 boys. In Mehsana, in Gujarat the figure stood at 752, in Salem in Tamil Nadu, it was 763 and in Ambala in Haryana 772. At the bottom of the ladder was Shahjahanpur a district in Uttar Pradesh with a CSR of 678 (Aravamudan 2007, 44). In 1991, there were no areas in India where there were less than 800 girls to 1000 boys but by the 2001 census, four states fell below a CSR of 800.

Another significant change is in its class distribution, in that unlike female infanticide, declining CSR is not confined to any lower socio-economic class with low literacy or to rural areas. The 2001 census co-related the practice of prenatal sex-determination followed by selective abortion of female foetuses and socio-economic class. This revealed that CSR’s are skewed in higher socio-economic classes and urban areas.  South-west Delhi, one of the wealthier districts of the capital New Delhi, for instance, recorded a drastic fall from 904 girls to 1000 boys in 1991 to 845 girls in 2001. This situation has further deteriorated since the census figures were published. The capital city now ranks third lowest after Punjab and Haryana (Aravamudan 2007, 45). This trend was also seen in Chandigarh, Punjab where in the rural areas the number of girls in the CSR was 852 while in the urban areas the number fell to 844. There is also evidence that sex-selective abortions are not isolated, rural phenomena (like female infanticide was) but is fast becoming a proliferating, urban practice. In 1991, there were 948 girls to every 1000 boys in the rural areas. This was close to the benchmark figure. By 2001, this had come down to 934. Meanwhile, the number of girls in urban CSR has fallen from 935 to 903, almost doubling the fall in rural areas. (Aravamudan 2007, 46)  The trends reveal that overall the CSR declined more in affluent urban areas where literacy rates are high than in poor areas with low literacy (Aravamudan 2007, 9). Apart from evidence of the widespread practice of sex-selective abortions, another characteristic is that  ‘the deficit in the number of girls born as second children is more than twice as great in educated than in illiterate mothers’ (Lancet, 216).

An examination of evidence relating to declining CSR establishes that the medical practitioners play a pivotal role in the current upward trend in female sex-selective abortions. Medical practitioners continue to offer repeated access to sex-determination technology and continue to perform repeated and frequent sex-selective abortions.

This evidence indicates that though both the services are illegal (this is discussed in more detail later), the business of sex-selective abortions flourishes. This combined with the demographic indicators (urbanity, class and literacy) not only makes the problem profoundly economic but also indicates it as one that must be understood in the larger context of economic liberalisation.  The pivotal role of the medical practitioner raises concerns about the robustness of the reproductive choices that abortion-seekers make. Are they exercising agency and are these choices autonomous etc.? The following section analyses the law legalising abortions to show that the choices that abortion-seekers make are subject to population control: a larger welfare goal of the state. This reduces the scope of their choices when compared with situations in which their choices are not similarly subject to a larger goal.

The Medical Termination of Pregnancy Act: Engendering a Need for Repeated Abortions

This section analyses the Act legalising abortions: the Medical Termination of Pregnancy Act, 1971 (MTP). It clarifies how the Act engenders a need for repeated abortions and how this is fulfilled in its implementation. Briefly, the MTP sets out the conditions under which an abortion-seeker is entitled to an abortion. Only a medical practitioner can make a decision about whether an abortion-seeker fulfils the pre-conditions for a legal abortion. This section begins by specifying the rights that abortion-seekers have under the MTP and then discusses how the law is implemented.

‘Reduction in Population Growth’ - the overriding, welfare goal of the state, justified in the public good, was the reason why abortion was legalised in 1971. The MTP does not give abortion-seekers a pre-emptory right to an abortion.  A pre-emptory right is a right that will trump all other rights (Human Rights is one example of pre-emptive rights). In contrast the MTP makes population control, a consideration that will trump the right of an abortion-seeker to an abortion. Consequently, abortion-seekers cannot avoid giving an explanation set out in the MTP to avail of an abortion. She cannot simply state that it is an unwanted pregnancy. She is required to fulfil the conditions listed in the Act. Here a distinction must be made between a decision to abort and the performance of the procedure itself. Under the MTP, once an abortion –seeker consents to an abortion, the decision to abort is made by a medical practitioner and not an abortion-seeker.

In this utilitarian framework of rights, apart from certain exceptions, the state is not involved in policing abortions. The exceptional cases involve coercion or abortions performed without the consent of an abortion-seeker. Sections 312-316 of the Indian Penal Code, 1860 (Code), criminalises miscarriages without consent; death caused by acts done with intent to cause miscarriage or acts done with intent to prevent children being born alive or to cause death after birth.

The MTP requires a medical practitioner to decide whether an abortion-seeker fulfils the conditions laid down in the Act. For instance, after twenty weeks a pregnancy can be terminated only if two registered gynaecologist or obstetricians testify that it is immediately necessary to save the life of the pregnant woman, etc. Once the medical practitioner is satisfied that an abortion-seeker fulfils the conditions set out in the MTP, section 3.4(b) imposes a duty on her to perform an abortion only if she obtains the consent of the abortion-seeker.

The rights, liabilities and powers of both the medical practitioners who perform the operations and abortion-seekers arise in their economic transactions (contracts). The contract frames the correlative legal relationship between the medical practitioner and abortion-seekers (See Simmonds (2005) on Hohfeldian correlative legal relationships pp 275-280). The MTP confers on an abortion-seeker a claim-right to an abortion that reciprocally imposes two duties on the medical practitioner. First, to ascertain whether the abortion-seeker fulfils the conditions set out in the MTP and second to ensure that she then consents to the abortion. The contract between an abortion-seeker and a medical practitioner establishes the claim-rights she has and imposes enforceable duties on the medical practitioners (and not on the state). Thus the contractual framework regulates the actual practice of abortions (and not the state).

The MTP does not define consent.  The Act however makes it a prerequisite for legal abortions. For the contracts to engender a set of enforceable, binding obligations, the MTP implicitly relies on ‘consent’ as defined in section 13 of the Indian Contract Act, 1872.  Under contract law, “[t]wo or more person are said to consent when they agree upon the same thing in the same sense”. Thus the medical practitioner has to do very little to satisfy the requirement of consent in the MTP as the Act vests the medical practitioner with the power to decide when her duty to ensure consent is fulfilled. The MTP ensures that the abortion-seeker consents to an abortion once a medical practitioner satisfies herself that she fulfils the conditions set out in the Act. Consistently, the MTP also vests the medical practitioner with the discretion to define the terms ‘health’ ‘substantive risk’, ‘seriously handicapped’, ‘abortion’, ‘miscarriage’, ‘termination of pregnancy’ etc.

In its implementation, the MTP ensures that an abortion-seeker is liable to having her legal rights and relationships altered by a medical practitioner subject as she is to the powers guaranteed to the latter under its provisions. In other words, the MTP confers on medical practitioners powers. Hohfeld called ‘powers’ abilities to alter legal rights and duties or change legal relationships. Powers differ from claim-rights because they are not correlative to a duty in someone else. Hohfeld describes them as being correlative to a ‘liability’ in the other party, by which he means that the party is liable to have his legal situation altered by an exercise of his power.

It is important to note that the MTP does not confer on abortion-seeker powers to alter the legal relationship between herself and the medical practitioner or the latter’s rights, a right to avoid paying for a service she provides, for instance. This is because when it comes to abortions, abortion-seekers are subject to the overriding goal of the state: population control, while medical practitioners as market actors are not. This is a foundational inequality in the MTP and one that reveals its utilitarian premise. This utilitarian premise makes increased and frequent abortions instrumental in achieving the larger welfare aims of the state: population control and simultaneously puts medical practitioners in a position whereby they profit from the practice. The regulatory framework set out in the MTP is represented in Figure 2 below.

Figure 2: The Regulatory Framework of the MTP

Figure 2 sets out the regulatory framework of the MTP: repeated abortions to control population growth. To make this possible the MTP entrenches a foundational inequality in the legal relationship between abortion-seekers and medical practitioners.

In the period between 1971 and 1991, the population control strategy entrenched in the MTP did not have the desired effect: population continued to grow at a steady rate during the thirty-year period after abortions were legalised. Further, though the Act held out opportunities for the business of abortions to flourish, this did not happen as indicated by the broken line between repeated abortions and profit in Figure 2 above. 

This framework also reflects a vocal and influential school of thought amongst medical practitioners that justify increasing female sex-selective abortions to stem population growth. At a seminar in 1984, a government official for instance, stated that sex determination tests must be allowed since the population problem called for desperate measures. The Head of Obstetrics and Gynaecology at a government general hospital in Bokaro also echoed this sentiment when he argued that the priority is population control by any means. Further that amniocentesis should be used as a method of family planning and should be made available to everyone at a minimum cost or even free. (Menon 2004, 76). The following section examines the processes by which the regulatory framework established by the MTP linked the profits from the abortion business to population control.

Liberalisation: Linking profits to population control

In 1975, amniocentesis was first used as a means to determine foetal sex and with it   the recent trends in frequent and repeated female sex-selective abortions (The implications of the widespread availability of sex-determination technology are discussed in the following section). This eventually leads us to the current slowdown in population growth in the inter-census period 1991-2001. The repeated abortions performed in this period reveal that medical practitioners were using the opportunities afforded to them by the MTP albeit with a difference: only aborting female foetuses. The changes in the period leading up to the 2001 census not only indicates that the availability of sex-determination technology increased female sex-selective abortions, but that the medical practitioners were using the technology to fulfil a social demand for sons. The market response to this demand indicates a move away from concerns about population growth that underlies the MTP.  With liberalisation in 1991, the existing statutory framework set out in the MTP, unproblematically accommodated the upward trend in female-sex selective abortions and a consequent shift in the framework that regulates abortions during this period. This section maps this shift.

India liberalised its economy in 1991. Vijay Joshi and Little’s ebullient assessment of the structural adjustments that liberalisation entails note that the derestriction of domestic production and investment has gone a long way in the ten years since 1991 (Joshi and Little, 1997, 16).

The impact of these macroeconomic changes on the market for reproductive services (the widespread availability of pre-natal sex-determination technology, for instance) has been significant. It is arguably the case that the Indian market for reproductive services is now inextricably linked to the global market. (The evidence that the market for reproductive services has proliferated is examined later.) In any event, liberalisation sets the stage for medical practitioners to exploit the opportunities to profit from the business of abortions: more abortions (male or female) mean more profits.

The implementation of the MTP in India during this transition exposes the foundational inequality between abortion-seekers and medical practitioners on which it is premised in two ways. First, as the medical practitioner has the power to modify her legal relationship with an abortion-seeker, she can do so in a way that furthers her business interest. Secondly, the duty to obtain the consent of an abortion-seeker to perform an abortion merely requires a medical practitioner to satisfy herself that an abortion-seeker fulfils the conditions set out in the MTP. This low threshold of consent makes it easier for medical practitioners to approve repeated abortions (whatever the cost to maternal health). The MTP ensures that repeated abortions are instrumental in increasing the profits of the medical practitioner. The same framework now unproblematically requires the performance of repeated abortions to increase the profits of medical practitioner when earlier this was required to control population growth. This is one aspect of the shift in the framework that regulates abortions while another is unique to the ongoing project of liberalising the market for reproductive services.

Liberalisation is underpinned by systemic changes that entail shifts in existing regulatory frameworks and thereby introduces distinctive normative frames to state policy. For instance, to improve the quality of services, governments have been urged  to be ‘cost-effective’, and ensure ‘cost-recovery’, to reintroduce user fees and social marketing schemes;

In addition to removing tariff barriers to increase foreign investment, liberalisation also engenders conditions in which it is possible for markets to achieve some welfare goals more efficiently, cost-effectively etc., than the state. The state pulls back to allow markets to perform certain functions. This underlies another shift in the framework that regulates abortions as represented in Figure 3 below.

Figure 3: Mapping a Regulatory Shift

The regulatory shift that links profits to population control is indicated in Figure 3 above. This is different from the regulatory framework set out in Figure 2 in the preceding section where the MTP legalised abortions to ensure that repeated abortions were required to control population growth. The proliferating business of sex-selective abortions and the current slow-down in population growth indicates that the market for reproductive services is increasingly co-opting a welfare aim of the state: to control population growth. Population growth is now being controlled by the abortion business (for profit) as represented by the two arrows in Figure 3 above. The arrow linking repeated abortions to control population growth is broken to represent the withdrawal of the state from achieving one of its welfare aims. The present regulatory framework engenders this shift as the practice of abortions was regulated by the contractual relationship between the medical practitioners and abortion-seekers: a relationship in which the medical practitioner was more powerful than the abortion-seeker. Thus, with liberalisation, the interests of the medical practitioner (profits) predominates those of abortion-seekers. This is the basis on which a welfare aim of the state is being achieved. This section reveals a shift in the framework that regulates abortions after liberalisation. However, both Figures 2 and 3 only deal with frameworks that regulate abortions generally. As discussed in the previous section, the current problem is not about abortions generally but about female sex-selective abortions.

The following section examines the legal responses to the problem mainly to understand why the law has been ineffective and has in fact bucked the upward trend in female sex-selective abortions.

Illustrating the Effects of an Intervening Illegality

As mentioned earlier, in 1975 the All India Institute of Medical Sciences, a public hospital, conducted trials using amniocentesis to detect foetal abnormalities: sex-determination was now possible in India. During these trials, most of the couples that learnt that the foetus was female went in for abortions. The practice proliferated in public hospitals. To limit this trend, amniocentesis was restricted by the Indian Council for Medical Research, to cases of suspected genetic diseases. Between 1977 and 1985 three circulars to government departments at the centre and the states made the use of pre-natal, sex-determination for the purposes of sex-selective abortions a penal offence (Aravamudan 2007).

The ban on amniocentesis in public hospitals prompted the private provision of the service in clinics all over the country. The widespread use of sex-determination technology to sex-selectively abort female foetuses prompted a civil society campaign against the practice by women’s groups and civil liberties and health movements. In 1984, a broad coalition was formed, the Forum against Sex Determination and Sex Pre-selection (FASDSP) whose primary purpose was a sustained campaign to ban sex – determination tests (Menon 2004, 74-81). After ten years of the campaign, the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 was framed. Ten years later, liberalisation ensured the proliferation of sex-determination technology: amniocentesis was now only one method by which foetal sex was determined. In response, a campaign against the proliferating practice culminated in a Public Interest Litigation in the Supreme Court calling for the 1994 Act to be extended to other sex-determination technologies. In response to orders from the Supreme Court in the matter, the Indian Parliament amended the 1994 Act in 2001. It is now known as the Pre-Conception and Pre-Natal Diagnostic Techniques Act (PCPNDT).

The PCPNDT extends the 1994 Act to cover pre-conception and pre-natal diagnostic techniques not covered by the 1994 Act. The amended statute brought under its purview some neglected areas like regulating the sale of equipment capable of detecting the sex of the foetus. It also specified under what circumstances diagnostic tests could be conducted on a pregnant woman and laid down certain strict rules regarding advertising of sex-selection techniques as well as services. Under the Act, it became mandatory for instance, to have a signboard in all ultrasound centres announcing that the detection and disclosure of foetal sex was illegal. The PCPNDT makes it illegal for a medical practitioner (this generic term covers clinicians who have access to sex-determination technology and can legally use the same) to divulge foetal sex or to carry out sex-selective abortions. Any contravention of the Act entails imprisonment and a fine.

In a framework similar to the MTP, the PCPNDT gives abortion-seekers a claim-right to access a pre-natal diagnostic technique say ultrasonography and it imposes two corresponding duties on a person qualified to use the sex-determination technology or perform a sex-selective abortion (medical practitioner) as follows. A duty not to reveal foetal sex and a duty not to perform a sex-selective abortion once the foetal sex is determined.

The PCPNDT is a statute that regulates and controls the use of diagnostic techniques for sex-determination and sex-selective abortions.  In the absence of any sex-determination prior to an abortion, the MTP will apply, (which as discussed in the preceding section) to achieve the larger good or welfare of the state namely population control and (after economic liberalisation) the sustenance of the market for reproductive services. In effect, abortion-seekers are still subject to the utilitarian foundations of the MTP. The PCPNDT merely declares the performance of certain acts, such as, revealing the sex of a foetus or the performance of a sex-selective abortion as illegal. Apart from this change, there is no modification in the kind of consent required from an abortion-seeker. There is no change in the power inequality between the medical practitioner and the abortion-seeker: the right to an abortion is still subject to the powers of the former. Thus, for all intents and purposes, repeated abortions are still required to control population growth and sustain the abortion business. This is contrary to the position taken by the women’s movement (as part of the FADSP). They claimed it as a victory: one that established a woman’s right to an abortion in a way that went beyond the MTP. This view has since been strongly criticised (Menon 2007, 77-80).

The abortion business has now diversified to include sex-determination and has become sex-selective. It is after the promulgation of the PCPNDT that the abortion business becomes the business of sex-selective abortions.  In the 13 years since the 1994 Act came into force, there has been one conviction - On March 28, 2006, a court in Haryana convicted a doctor and his assistant to a two-year jail sentence for carrying out sex-selective abortions. Moreover, the abortion business has flourished and population growth has slowed down. This section explores why the PCPNDT has failed to regulate the abortion business. Why have female sex-selective abortions become the business norm (instead of abortions in general)?

By declaring foetal sex-determination as illegal, the PCPNDT allows the state to directly intervene and regulate transactions between abortion-seekers and medical practitioners. The statute is not concerned with other non-sex-selective abortions or the frequency of abortions. This is still regulated by the MTP. The criminalisation of certain aspects of the abortion business could potentially have had a direct financial impact on the business, but it did not. The reasons behind this are explored in the next section.

Mapping the Demand and Supply Continuum

The beginning of the demand and supply continuum that underpins the sex-selective abortion business can be traced back to the period after the technology that made sex-determination possible became available in 1974.  In the twenty years leading up to  its criminalisation in 1994, medical practitioners publicly defended the practice on the  grounds that it was ‘the family’s right to make this personal decision…the mother will suffer if she has too many daughters and that the daughter will have a difficult life’ (Aravamudan 2007, 58). One gynaecologist questioned, “how can you deny [the mother] the right to have a one son instead of a third or fourth daughter?” and commented that

Medical practitioners also pointed out the unreasonableness of making female and not male sex-selective abortions illegal. Furthermore, doctors raised concerns that

The doctors who pioneered the use of amniocentesis in India claimed that

Hospitals that specialised in sex-determination services invoked the interests of the nation and claim to be doing the nation a service by ‘keeping some check over the accelerating population as well a give relief to the couples requiring a male child’(Aravamudan 2007, 60).

In the years that preceded the PCPNDT, the abortion business embarked on a visible media campaign that both articulated and reinforced social norms such as son preference. There were billboards and posters on train stations advertising sex-determination tests together with an abortion for Rs.70. They stated ‘Invest Rs. [rupees] 500 now, save Rs.50, 000 later’ (id.) These were designed to encourage prospective parents to sex-selectively abort and thereby save on a future dowry.

Clinics advertised their sex-determination services and as the number of clinics grew, competition pushed down the prices of the service, making them more affordable to the lower middle class. From 1982 to 1987, the number of clinics for sex- determination increased from less than 10 to 248 in Mumbai alone. A study of clinics in Mumbai revealed that out of 8000 abortions in six hospitals preceded by amniocentesis, 7,999 were female foetuses. Between 1978, and 1982, according to one study, 78,000 female foetuses were aborted after sex-determination tests in one hospital, while none of the 250 male foetuses were aborted even when there was evidence of a genetic problem (id.). Prior to the promulgation of the PCPNDT, information of this kind was relatively easy to find. After the practice was criminalised in 1994, the public campaign stopped, but the sex-determination and sex-selective abortion business (sex-selective abortion business) flourished albeit underground.

In the meantime, liberalisation entailed the removal of tariff barriers between the national and the global market for reproductive services, significantly increasing the   sex-selective abortion business. By 2000, ultrasound technology had proliferated and become highly sophisticated. Mobile sonography machines were available widely and they had ‘become so sleek and compact that they would now be stowed away in the boot of a car.’ Studies conducted revealed that quite a few scanning centres were actually owned and operated by non-trained personnel (Aravamudan 2007, 66). At the beginning of 2004, there were 1621 ultrasound sonography centres in Karnataka for which registration were granted by the state. Over 25 per cent of them had neither an owner nor an operator who was qualified to use the machine, in direct contravention of the PCPNDT (Aravamudan 2007, 68). In Maharasthra, a study conducted established a clear correlation between the number of sonography centres and a decline in CSR. The average number of girls in the CSR for districts with more than 100 sonography centres was 901, and for districts with less than 100 sonography centres, the number of girls was 937 (id.). In May 2005, there was evidence that many “doctors in Punjab were keen to make a quick buck … aborting male foetuses when parents approach them for ante-natal sex determination.”  Apparently the doctors offered a package deal costing Rs 8000 and Rs 15,000. Before the PCPNDT Act, the test cost Rs.500 (id.). By 2005, ultrasound scanning for sex determination had become a Rs.5 billion industry (Aravamudan 2007, 69). 

The upward trend in sex-selective abortions and the flourishing abortion business are linked. The regulatory framework established by the MTP underpins this linkage. The evidence that the sex-selective abortion business is flourishing even after the practice has been criminalised indicates two things: there is a demand for sex-selective abortions and the medical practitioners and abortion seekers are strategically avoiding the law to meet this demand. If the latter does not, then section 23 (2) of the PCPNDT will criminalize both her and her family. This mutual, strategic, avoidance is not only necessary to sustain the proliferating business of sex-selective abortions but it reveals a fissure between legal ordering or the formal law (which by all accounts has failed) and the underground system of private orderings (in which the sex-selective abortion business flourishes). Private Orderings is a phrase used to describe empirical instances of community institutions serving economic functions beyond the law. A historical instance of such orderings was first theorised in Grief (1993). The private orderings in this case study relies on Richman, (2005). In this paper, Barak Richman describes the Jewish community institutions that underpin the diamond trade as a private ordering that arose to overcome the limitations of the formal courts. The private orderings that sustain the market for sex-selective abortions are entrenched on account of the intervening illegality imposed by the PCPNDT.

The conceptual framework finally looks like this.

Figure 4: The Fissure between Legal and Private Ordering

The upper - part A of Figure 4 represents the domain of legal ordering: where clinics are licensed, legal compliance of certain provisions of the PCPNDT (such as the public notice boards in clinics declaring that both sex-determination and sex-selection are illegal) is ensured, sex-determination technology is legally imported, its use licensed etc.

The lower - part B of Figure 4 represents the domain of private ordering in which the sex-selective abortion business flourishes. The social demand for sex-selective abortions leads to the supply of both sex-determination and frequent and repeated, sex-selective abortions. Medical practitioners and abortion-seekers co-operate and thereby engender the private ordering to ensure a supply and demand continuum leading to increased profits (and population control). In the case of sex-selective abortions, the private ordering is so entrenched that it has its own language!  This is evidenced in sex-determination clinics where medical practitioners have evolved their own specific ‘area’ code linked to the tradition and jargon of the part of the country in which they are located. In parts of north India, for instance, ‘laddu’ translates as son and ‘barfi or daughter. If a woman was asked to come back on Monday, it meant she was carrying a son. If she was asked to return on Friday, it meant that the foetus was female and he would have to abort it etc. (Aravamudan 2007,74).

The co-operation between the medical practitioner and abortion-seekers and the flourishing sex-selective abortion business reveals how social and market norms such as son–preference, efficiency respectively underpin the market for sex-determination and sex-selective abortions. Consequently, prenatal sex determination tests and sex-selective abortions may be seen as a more morally acceptable option in the domain of private ordering than the earlier practice of female infanticide, for instance. Female infanticide required parents to perform elaborate rituals to cleanse themselves of the guilt associated with the practice (Patel 1996). One reason for a marked preference for this technology is that the soul does not enter the foetus until the end of the first trimester. This is one cited reason why sex-selective abortions in the first trimester may be preferred to infanticide after birth (id.). The fissure between domains A and B indicates that the PCPNDT notwithstanding, the sex-selective abortion business is unregulated. More significantly however, the fissure indicates that in a post-liberalised economy, the MTP and the PCPNDT have unproblematically made population control, son preference and profit the inseparable goals of the global market for reproductive services.

This case study also requires the recognition that markets are essentially, social practices. Though this recognition may not be as innocuous as it sounds. Unlike other social practices, markets require people to submit their resources and in the case of abortion-seekers their bodies to the simple imperative of demand and supply. This submission is necessary not merely to fulfil a woman’s individual interests (as Dr Malpani in the recent episode of ‘We the Nation’ would have us believe) but to achieve goals such as profit of powerful market players, population control and wealth maximisation, all more worthy than our own. In other words, as abortion-seekers have no choice but to become market actors their bodies become (unproblematically) instrumental in the achievement of goals larger than their own. Interestingly, the view that a woman’s body is normally subject to fulfilling the interests of her family, caste etc is brought home forcefully by Mahasweta Dewi (1997) a popular woman activist and author.

Conclusions

This paper traces the role that the MTP and the PCPNDT play in the market for reproductive services in a transition economy. This analysis of the law moves the public debate in India away from the pro-choice/pro-life frame and rearticulates it as systemic problem that implicates abortion law. This problem does not only raise pro-life/pro-choice concerns as the contemporary debate would have us believe, but does require that the experiences of women who undergo repeated abortions be made a part of the debate.

The analysis of abortion law in this paper reveals that since population control is the foundational imperative of the MTP, its implementation requires repeated abortions, to sustain the present slow-down in population growth. It also reveals a foundational inequality in its regulatory framework: abortion-seekers are subject to demands of the larger public good while medical practitioners are not. This inequality entails profits. This may be an incentive for the business of sex-selective abortions but the profits also require an examination of whether exchanges between abortion-seekers are exploitative, thereby denying women the full benefit of accessing the market for reproductive services.

The repeated abortions required to slow-down population growth also obscures concerns about maternal health and an examination of the birth control policies of the state. The upward trend in sex-selective abortions reveals a regulatory gap: the business of sex-selective abortions flourishes and in the process disproportionately affects abortion-seekers and exposes the fallacy of the gender-neutral agenda of economic liberalisation.

Activists like George Sabu and Leela Visaria have highlighted the repercussions of the unregulated business of sex-selective abortions. Activists have re-drawn the battle lines in recognition of the evidence that abortion laws have mediated the impact of liberalisation and that this impact is gendered, affecting women in specific ways. The activist approach developed from the ground up is premised on the recognition that economic globalisation does not merely displace the rights framework but irremediably distorts it. Secondly, these distortions expose regulatory free zones in which markets sustained by oppressive social norms proliferate. The disadvantage that abortion-seekers face can only be understood at the intersection of social, economic and political forces. It is in this vein that Rosalind Petchesky endorses DAWN’s (an activist NGO) ‘holistic’ approach. This approach combines rights and needs to specifically address the impact that privatisation and commodification has on women (Petchesky, 2000).

The analysis of the law in this paper does not provide a template for legal reform and is not a defence of rights. It sets out a conceptual framework to clarify the process by which the demand and supply continuum that underpins the market for reproductive services is sustained by repeated and frequent abortions, with unaccounted and disproportionate costs to maternal health.

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