Abortion in Hindu Law
Abortion in Hindu Law.
Neither abortion nor birth control is acceptable to many Hindus whose tradition, as reflected in ancient texts, is pro-natal and family oriented.
The Classical Hindu Texts.
Hindu philosophy regards procreation of a son as a holy and spiritual act (Manusmriti 5.138), virtually a religious obligation in joint family contexts, where a Hindu male should ideally father and leave behind a son to carry on the family line and perpetuate the line of ancestors.
It remains disputed whether classical Hinduism contained strong prohibitions against abortion or not. References in the Atharvaveda indicate that abortion was known in the Vedic age (c.1500 b.c.e.). The classical texts portray causing an abortion or miscarriage as a more or less grave sin, requiring penances. Feticide was classified as murder, and especially the killing of a Brahman embryo (Manusmriti 11.88) was treated as a grave offense. The Manusmriti also declared a woman who had procured abortion as an outcaste or murderer of her husband. Yājn-avalkyasmriti 1.72 indicates that a woman who killed her unborn child should be abandoned. Similarly strong views against abortion are recorded throughout the dharmaśāstra literature. More recent legal contexts reflect such ancient Hindu principles when abortion by a pregnant woman without the consent of her husband is considered as cruelty and a ground for divorce under the Hindu Marriage Act of 1955.
Under Colonial Rule.
Under colonial rule, section 312 of the Indian Penal Code of 1860 did not use the term “abortion” but made causing miscarriage a crime punishable by up to seven years’ imprisonment and a fine, also punishing a pregnant woman who caused herself to miscarry. “Miscarriage” is an Indian folk term for spontaneous abortion. The Indian Penal Code permitted miscarriage only on the narrow ground of saving the life of the pregnant woman. Making abortion so restrictive was probably inspired by Victorian morality and traditional Hindu pro-natalism. It could also be justified by arguing, firstly, that performing an abortion could be dangerous to the mother due to lack of advanced medical facilities; secondly, it negatively affected population growth, considered necessary for the welfare of society. As the result of restrictive abortion policies, many women seeking abortion were put at the mercy of unscrupulous informal practitioners.
The Indian government after independence (1947) continued to follow the restrictive approach toward abortion of the Indian Penal Code. However, as illegal abortions increased, often resulting in the woman's death or severe medical complications, Indian family planning became fully integrated with public health schemes during the second half of the sixties, especially with maternal and child health programs operated through primary health centers in rural and urban family planning centers. It has been estimated (Indian Express, New Delhi, February 16, 1982) that four to five million abortions were then induced every year, out of which more than three million were illegal. Accepting the recommendations of the first United Nations evaluating mission, which visited the country in 1965, the Indian Parliament provided a variety of contraceptive methods for free and also decided to liberalize abortion laws. In 1971 it passed the Medical Termination of Pregnancy Act, allowing women to have a legal abortion on more liberal grounds. Under section 3 of this act, a pregnancy can be terminated medically, as before, when the life of the pregnant woman is at risk, but now also if the pregnancy was the result of rape or occurred due to failure of a family planning device. Safeguards were provided against medical malpractice, so under the 1971 act an abortion can only be performed legally by registered medical practitioners. Though the 1971 act was designed primarily as a health measure, empirical studies reveal that most abortions were now performed by medical practitioners because of alleged failure of a family planning device. Thus, the act was being used by medical practitioners as well as an increasing number of families as a family planning measure.
Added complications arose because Hindu society tends to give preference to sons. Advanced medical technology, coupled with more liberal abortion law, now gave status-conscious Indian families the chance to eliminate daughters before birth, rather than risking payment of large dowries. Selective female feticide made an appearance despite traditional reservations against abortion and is strongly reflected in census reports of the sex ratio in India. In 1971, it was 931 females per 1,000 males, declining to 927 in 2001. Modern technology that allows parents to identify the sex of the fetus, coupled with corruption and moral degradation among law enforcers and the medical profession, have meant that the sex ratio is becoming ever more unbalanced. According to the 2001 census, the most prosperous and affluent states of north India—Punjab and Haryana—have the lowest sex ratio in India, 793 and 820 females per 1,000 males respectively.
The Prenatal Diagnostic Technique (Regulation and Prevention of Misuse) Act of 1994 allowed amniocentesis to discover birth defects such as chromosomal abnormalities and genetic metabolic diseases, but this procedure also revealed the sex of the fetus. Hence, this legally sanctioned medical innovation further encouraged selective elimination of female fetuses. Following public agitations, the Indian central and state governments banned such sex determination tests by enacting further legislation. The Supreme Court also issued some guidelines, asking state governments to register all sonography machines and monitor their working. Nonetheless, much selective feticide is still going on. One view is that since the 1971 act legalized abortion, and it is being resorted to as a family planning measure, it should be permitted. If abortion is legal, then female feticide is also legal, according to this reasoning. Despite legislation banning this practice, private clinics everywhere carry on sex determination tests secretly and perform abortions, thus continuing to affect the sex-ratio adversely.
[See also Dowry in Hindu Law.]
Agnihotri, Satish Balram. Sex Ratio Patterns in the Indian Population: A Fresh Exploration. New Delhi and Thousand Oaks, Calif.: Sage Publications, 2000. An exploration of sex-ratio imbalances.Find this resource:
Coward, Harold G., Julius J. Lipner, and Katherine K. Young. Hindu Ethics: Purity, Abortion, and Euthanasia. Albany: State University of New York Press, 1989. Mainly ethical study on traditional reservations against abortion.Find this resource:
Sehgal, B. P. Singh. Women, Birth Control, and the Law. New Delhi: Deep & Deep, 1991. Detailed study of birth-control laws in India.Find this resource: