High Court of Allahabad

22.02.2016

Saksham Foundation Charitable Society v. Union of India

MANU/UP/2097/2014

Preventing sex-selective abortions

1994 saw the introduction of two pieces of legislation that hoped to stem the practice of terminating pregnancies mid-term if the child to be born was female. These were the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and the Pre-natal Diagnostic (Techniques Regulation and Prevention of Misuse) Act, 1994. Their objectives were twofold: preventing pre-natal sex determination leading to female foeticide, of course, but also to not hinder diagnosis for the purpose of detecting genetic or metabolic disorders or other abnormalities. Challenges over the years to the validity of the Acts, largely dispelled by courts, have coloured themselves in the most inventive of suasions. In 2005, for instance, the Bombay High Court dismissed a petition by a married couple that claimed the Sex Selection Act of 1994 contrary to their personal liberty under Article 21 of the Constitution. It held that “the right to life or personal liberty cannot be expanded to mean that the right of personal liberty includes the personal liberty to determine the sex of a child which may come into existence”. Another much more recent claim at the Allahabad High Court went so far as to claim the Acts impinging on the rights of the unborn child under Article 21. Moreover, a doctor in the know of the sex of the unborn child only had the moral duty to not disclose the same, permitting abortion of the foetus by the ‘unaware’ parents. The petition was dismissed; however, the court refrained from expressing opinion on legislative policy, finding itself not “justified in interfering with the wisdom of Parliament in implementing a legislative policy in a particular manner.”

Relevant

Amy Antoinette Mcgregor & Anr. v. Directorate of Family Welfare, Govt. of NCT of Delhi & Anr. MANU/DE/3898/2013
Vijay Sharma & Anr. v. Union of India & Anr. MANU/MH/0668/2007
Vinod Soni and Anr. vs. Union of India (UOI) MANU/MH/0293/2005
Article 21 Constitution of India Act

Section 5 PNDT Act, 1994

Tags : Sex selection constitutionality ultrasound

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