LEGALITY OF SEX-SELECTIVE ABORTION IN INDIA, UK, USA & CHINA:

COMPARATIVE STUDY

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Shaheen Banoo1*

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ABSTRACT

Sex-selection is a criminal offence in India whereby selective-sex abortion is banned, illegal

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and attracts penal provisions. Sex determination is banned in United Kingdom as well

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completely defying the cultural preference to a male child over a female child. The law
declaring gender-based abortions as illegal in the United Kingdom is similar to the law
prevalent in India wherein sex determination by use of pre-natal detection technology is
illegal and attracts penal penalties under the Pre-natal Diagnostic Techniques Act, 1995. The
er
United States of America does not have a single umbrella law banning sex-selective abortion
in the United States. Furthermore, it must be noted that there are only four countries in the
pe
world viz., China, Kosovo, Nepal and Vietnam have laws that explicitly prohibited sex-
selective abortion whereas, other countries check the practice of sex-selective abortion by
generally prohibiting sex selection through preconception and pre-implementation
techniques without any explicit laws prohibiting sex selective abortion. More so, sex selective
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abortion is illegal in China but prenatal sex determination is a widespread practice in China.

The paper discusses myriad imperative reasons to ban the most widespread available and
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accessible method that results in the natural sex distortion; the rampant sex selection
abortion and pre-natal determination of the foetus across varying jurisdictions.
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Keywords: Abortion, Sex-Selective Abortion, Legality of Abortion, Pre-Natal Sex

Determination, Illegal Abortion, PNDT Act
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1
* Shaheen Banoo, 5th Year, B.A. LL.B.(Hons.), Symbiosis Law School, Pune, Symbiosis International
University (India).

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3689069
 INDIA ON SEX-SELECTIVE ABORTION

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India has outlawed prenatal sex determination. In India selective-sex abortion is banned,
illegal and attracts penal provisions. The judgement Centre for Enquiry into Health and
Allied Themes (CEHAT) vs. Union of India and Others, 2003 presents an astonishing reality

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of the often glorified Indian society where even the well-to-do states like Maharashtra and
Gujarat records for under sex ratio. The judgement is a glaring example to portray and an
abysmal condition of females in the Indian society and the need to safeguard a human life via
judicial order.2

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It was in the year 2001, that the Central government received orders from the courts to spread

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awareness amongst the masses about the pre-natal sex determination and the consequences of
the practice with utmost zeal. As Ministry of Health and Family Welfare, Government of
India puts it, "sex selection is a criminal offence." The National Committee (National
Monitoring and Implementation Committee- NMIC) was duly formulated to monitor the
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implementation of the provisions of the Pre-natal Diagnostic Techniques Act, 1995. The
Supreme Court further directed that ultrasound machines would only be given to properly
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registered clinics is as a preventive measure for illegal determination of the sex of the foetus
by any medical practitioner.3

This is undoubtedly a path breaking step towards achieving gender justice in the society
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which is predominantly plagued by the patriarchal mindset for many centuries in the
country.4
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UNITED KINGDOM AND INDIA

It must be emphasised that abortion is based on sex determination is banned in United

Kingdom completely defying the cultural preference to a male child over a female child.
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Moreover, the UK government has made it clear that determination of the sex of an unborn
baby and proceeding an abortion on such reports are against the law of the country, and such
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2
Shradha Thapliyal, '#GenderJustCourts — Female Infanticide: CEHAT & Ors. Vs. Union of India'
(Medium.com) <https://medium.com/strategic-advocacy-for-human-rights/genderjustcourts-female-infanticide-
cehat-ors-vs-union-of-india-154e2d603ff3> accessed 20 April 2020.
3
Arindam Nandi, 'Banning Sex-selective Abortion in India: Evidence from a Policy Change' (Centre for Global
Pr

Development) <https://www.cgdev.org/event/banning-sex-selective-abortion-india-evidence-policy-change>
accessed 22 April 2020.
4
Actionoid, 'Disappearing Daughters' ActionAidUK (IDRC CRDI)
<https://www.actionaid.org.uk/sites/default/files/doc_lib/disappearing_daughters_0608.pdf> accessed 23 April
2020.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3689069
 abortions are illegal in nature.5 The law declaring gender-based abortions as illegal in the
United Kingdom is similar to the law prevalent in India wherein sex determination by use of

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pre-natal detection technology is illegal and attracts penal penalties under the Pre-natal
Diagnostic Techniques Act, 1995.6

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It is pertinent to note that in the year 2014 the UK government issued fresh guidelines on
declaring gender-based abortions as illegal following 4700 infant girls found missing in the
ethnic communities in the UK, particularly British Asian community where a boy child is
given preference over a girl child. Furthermore, as per Britain law in order to carry out an

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abortion it is mandatory for two doctors to certify an abortion in compliance the terms of the
1967 Abortion Act. However, it must be noted that the doctors have a legal duty to certify

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such abortions in good faith only and they must not certify an abortion plagued with mala
fide intentions and motives, whatsoever.7
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NIPT VIS-A-VIS SEX DETERMINATION

NIPT stands for Non-Invasive Parental Testing used for screening the chromosomal
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conditions inter alia micro-deletions and trisomy disorders. However, the Non-Invasive
Parental Testing is now being used for sex-selective abortion owing to the fact that NIPT is
extremely accurate when it comes to determination of the sex of the foetus.
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It is an uncontested fact that due to its ease, accuracy and convenience of availability in
gestation Non-Invasive Parental Testing is being readily adopted in health care systems not
just in UK but across the entire world. However, the widespread use of the Non-Invasive
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Parental Testing has seen tremendous increase in the use of the testing for sex determination
which was aimed at rather focusing on screening for autosomal disorder in the first place.8
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5
'United Kingdom Bans Sex-Determination Based Abortions' (WorldPress Trust of India 24 May 2014
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<https://www.ndtv.com/world-news/united-kingdom-bans-sex-determination-based-abortions-563726>
accessed 23 April 2020.
6
Rikita Patel, 'Prenatal Tests are Misused for Sex-Selection in the UK' (BioNews 24 September 2018
<https://www.bionews.org.uk/page_138607> accessed 23 April 2020.
7
Adam Forrest, 'Early Gender Tests Leading to Selective abortions of Girls in UK' (Independant, UK 17
September 2018 <https://www.independent.co.uk/news/health/selective-abortions-gender-tests-girls-uk-labour-
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a8540851.html> accessed 23 April 2020.

8
Josie Griffiths, 'Gender Agenda-How Does Gender Selection Work is it Legal in the UK and is it the Same as
Early Foetus Gender Identification?' (TheSun 17 September 2018
<https://www.thesun.co.uk/fabulous/5360625/danielle-lloyd-gender-selection-legal-uk-early-foetus-
identification/> accessed 23 April 2020.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3689069
 The use of Non-Invasive Parental Testing is prevalent in the Netherlands, Belgium,
Switzerland, Denmark and Canada et cetera. With many advantages it must be emphasised

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that, Non-Invasive Parental Testing in many countries is easily accessible for sex
determination through private sector.9

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However, it must be noted that India has outlawed prenatal sex determination. Furthermore,
there is a big conundrum concerning the use of NIPT for sex determination in the UK
between the UK government and the Nullified Council.10

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USA AND INDIA

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The United States of America does not have a single umbrella law banning sex-selective
abortion in the United States.11 Furthermore, it must be noted that there are only four
countries in the world that have laws that explicitly prohibited sex-selective abortion
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whereas, other countries check the practice of sex-selective abortion by generally prohibiting
sex selection through preconception and pre-implementation techniques without any explicit
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laws prohibiting sex selective abortion.12

These countries includes China, Kosovo, Nepal and Vietnam.13 More so, China, India and
Nepal are the countries having laws that prohibits medical professionals and others involved
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in the practice of revealing the sex of the foetus, on the other hand Sweden permits
termination of a pregnancy based on the sex of the foetus and explicitly allows sex-selective
abortion.14
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9
'Gender and Genetics' (Genomic Resource Centre) <https://www.who.int/genomics/gender/en/index4.html>
accessed 23 April 2020.
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10
Hilary Bowman‐Smart, Julian Savulescu, Christopher Gyngell, Cara Mand, Martin B. Delatycki, Sex
Selection and Non‐Invasive Prenatal Testing: A Review of Current Practices, Evidence, and Ethical Issues
[2014] Volume 40, Issue 4 Parental Diagnosis 398, 407.
11
Bonnie Steinbock, 'Preventing Sex-Selective Abortions in America: A Solution in Search of a Problem' (The
Hastings Centre 04 April 2017) <https://www.thehastingscenter.org/preventing-sex-selective-abortions-
ep

america-solution-search-problem/> accessed 20 April 2020.

12
Sital Kalantry, 'Harmful Anti-Sex-Selective Abortion Laws are Sweeping U.S. State Legislatures: Why Do
Some Pro-Choice People Support Them?' (2018) SSRN
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3138601> accessed 20 April 2020.
13
Brian Citro, Jeff Gilson, Sital Kalantry and Kelsey Stricker, 'Replacing Myths with Facts: Sex-Selective
Abortion Laws in the United States' (2014) Cornell Law Faculty Publications. Paper 1399
Pr

<https://scholarship.law.cornell.edu/facpub/1399/?utm_source=scholarship.law.cornell.edu%2Ffacpub%2F1399
&utm_medium=PDF&utm_campaign=PDFCoverPages> accessed 20 April 2020.
14
Kenan Farrei, ' Where Have All the Young Girls Gone? Preconception Gender Selection in India and the
United States' (2002) IND. INT'L & COMP. L. REV. <https://mckinneylaw.iu.edu/iiclr/pdf/vol13p253.pdf>
accessed 20 April 2020.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3689069
 It must be emphasised that the United States of America has witnessed proliferation of
banning of sex-selective abortion laws past 2009. However, as on today there are only eight

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states in the USA where sex-selective abortion is explicitly banned to regulated sex-ratios at
birth. Often, it is believed that male-biased sex ratios at birth is only found in countries like
India, China, Kosova, Vietnam and Korea.15

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However, data shows that countries having predominantly white population viz., Armenia and
Liechtenstein have lowest sex-ratios and not just the Asian countries' India and China, per
se.16 It is pertinent to note that sex selection tantamount to more sons which duly perpetuate

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the notion of two genders and the preference assigned to male gender.17

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CHINA AND INDIA

India and China are world's most two populous country and it is no new knowledge that sex
selective abortion and pre-natal determination of foetus is most common and rampant in India
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and China leading to distortion of natural sex ratio that has resulted in a gender imbalance
that the countries are inarguably facing. China has recorded its worst sex ratio in the year
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2005 where data suggests the birth of only 100 females as against 118 male births in number.
In the aftermath despite China has lifted its one child policy, the population in China still
continues to stagnate in view of fewer women to produce babies.18

It is pertinent to note that sex selective abortion is illegal in China but prenatal sex
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determination is a widespread practice in China.19 However, China has been adopting

measures to have a check on sex selective abortions whereby as per the new rule, it is
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mandatory for any woman who is pregnant for over 14 weeks; must get the approval of
abortion from three medical professionals verifying that an abortion is medically needed
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15
'Banning Abortions in Cases of Race or Sex Selection or Fetal Anomaly' (Guttmacher Institute January 2020)
<https://www.guttmacher.org/evidence-you-can-use/banning-abortions-cases-race-or-sex-selection-or-fetal-
anomaly> accessed 20 April 2020.
16
Stefano Gennarini and J.D. 'Study Finds 23 Million Females are Missing Due to Sex-Selective Abortion'
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(Centre for Family and Human Rights, New York 02 May 2019) <https://c-fam.org/friday_fax/study-finds-23-
million-females-missing-due-sex-selective-abortion/> accessed 23 April 2020.
17
Sujatha Jesudason and Anat Shenker Osorio MAY 31, 2012Sex Selection in America: Why It Persists
and How We Can Change It (The Atlantic 31 May 2012)
<https://www.theatlantic.com/politics/archive/2012/05/sex-selection-in-america-why-it-persists-and-how-we-
can-change-it/257864/> accessed 20 April 2020.
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18
Kiran Pandey, 'Selective abortions killed 22.5 million female foetuses in China, India' (DownToEarth 17
April 2019) <https://www.downtoearth.org.in/news/health/selective-abortions-killed-22-5-million-female-
foetuses-in-china-india-64043> accessed 20 April 2020.
19
Jing-Bao Nie, 'Limits of State Intervention in Sex-Selective Abortion: The Case of China' [2010] Culture,
Health & Sexuality Vol. 12, No. 2 205, 219.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3689069
 before any procedure that needs to be done.20 Furthermore, another noticeable point is that
the sex of a child could only be discernible after 14 weeks of pregnancy in China ensuring

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regulation of misuse of pre-natal sex determination techniques.

Thus, it can be concluded that China and India have through and through banned the practice

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of pre-natal diagnosis of sex and sex selective abortion involving non-medical purposes.21
The family planning policies in the late 1970s in China had a completely different outlook as
to what China’s family planning policies are in today’s time and shape. Earlier China’s
family-planning policies included the use of abortions besides contraceptives and sterilisation

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process in order to restrict population growth in the country. However, with the advent of
ageing population and altering demographics China has lifted its one child policy in order to

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neutralise its gender imbalance of 30 million more men as compared to women signalling a
significant policy change after decades of the stringent one child policy.22

Additionally, sexist stereotypes and discriminatory practices are the logical fallout to the
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menace of gender imbalance, the foundation of which rests on first, devaluing women in the
society second, the preference given to a male child. Secondary problem to this issue relates
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to proliferation of violence against women and the increased demand for sex trafficking in
view of fewer women in any society. Therefore, it is imperative to ban the most widespread
available and accessible method that results in the natural sex distortion is the rampant sex
selection abortion and pre-natal determination of the foetus.
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The menace of sex selective abortion is not rooted in the practice itself but at the failure of
any nation to concede that this very practice disturbs the very structure of liberty by denying
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equal protection to the female of the population of the country under the law. Prevention of
gender discrimination in the form of curbing sex selective abortion should be the priority for
which immediate and concrete action is needed to abort the propensity towards the advancing
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gendercide that the human race is invariably embarking upon. It must be emphasised with
great vigour that Eberstadts notes that “failure to address sex selective abortion at home and
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20
'China’s Excess Males, Sex Selective Abortion, and One Child Policy: Analysis of Data from 2005 National
Inter Census Survey' (2009) BMJ 2009;338:b1211 <https://doi.org/10.1136/bmj.b1211 > accessed 20 April
2020.
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21
Jing-Bao Nie, 'Limits of State Intervention in Sex-Selective Abortion: The Case of China' [2010] Culture,
Health & Sexuality Vol. 12, No. 2 205, 219.
22
Lily Kuo, 'China: New Rules to Prevent Sex-Selective Abortions Raise Fears' (The Guardian 22 June 2018)
<https://www.theguardian.com/world/2018/jun/22/china-new-rules-jiangxi-province-prevent-sex-selective-
abortions> accessed 20 April 2020.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3689069
 abroad is a failure to address the role of a woman in society and the effect of sex selection on
human relationships.” 23

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CONCLUSION & SUGGESTIONS

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Female infanticide has been prevalent in India for the longest time, however, female foeticide
is comparatively a new practice that has adversely affected the sex ratio of females to males.
The practice of female foeticide denies a girl, the right to be born let alone other
discrimination and inequality that the Indian culture is plagued with. Moreover, parental sex
detection technology have often been considered as a major reason for the proliferation of

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selective abortion of female offspring, which is a penal offence in India.24

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As unfortunate as it appears, the birth of a female child in India is often viewed with the lens
gigantic financial ruin and start of extreme hardship for a poor any Indian family. It is
because of this reason a lot of poor people opt for sex-selective abortions because of the
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rampant dowry system prevalent in Indian culture at the time of marriage and further that the
poor Indian family dreads. Therefore, the researchers suggests that in order to bring about
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substantial changes it is important to carry out structural changes onto the root cause of these
issues stemming from the patriarchal Indian society belief.25

Thus, a complete abolition of dowry not just in letters but spirit would go a long way in
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easing the birth of a girl child in India as a lot of parents worry about the financial hardship
that they have to bear to fulfil the dowry requirements as per the societies demands et cetera.
A detailed study about preference for a boy child over a girl child in India records many
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reasons.26

It is often believed that, “raising a girl child is tantamount to watering a plant in the
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neighbour’s garden.” Furthermore, there exists preferential bias towards birthing a son that
eventually begets social status and acceptance in the in-laws' family. Moreover, as per Hindu
believes it is only a son who could give fire to the pyre and the demand for smaller families
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23
Anna Higgins, J.D., 'Sex-Selection Abortion: The Real War on Women' (Charlotte Lozier Institute 13 April
2016) <https://lozierinstitute.org/sex-selection-abortion-the-real-war-on-women/#_ftn29> accessed 20 April
2020.
24
Ahmad N, "Female Feticide in India" [2010] 26(1): NCBI 13, 29.
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25
UNFPA, 'Trends in Selective Abortions of Girls in India' (United Nations Population Fund, 2011)
<https://www.unfpa.org/resources/trends-selective-abortions-girls-india> accessed 20 April 2020.
26
'Preventing Gender-Biased Sex Selection' (ISBN 978 92 4 150146) World Health Organisation
<https://apps.who.int/iris/bitstream/handle/10665/44577/9789241501460_eng.pdf?sequence=1>accessed 20
April 2020.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3689069
 are inter alia many reasons for a deep-rooted preference for boys. Therefore, to eradicate all
such bias complete cultural and social overhaul is a must to defeat patriarchy and bias for a

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boy child over a girl child.27

The Indian society has a lot of stigma attached on the birth of a girl child. Right from her

iew
birth, the parents are worried about the dowry they have to pay to the bridegroom’s family
and the unimaginable financial hardship that they have to undergo in order to get their
daughters married which itself is a herculean task amidst other expenditures.

Therefore, in order to assess the reason behind gender-based inequality it is important to

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decode the cultural setting of the society to understand how to mindset of the people operates

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in such society. Thus, it is contended that in India patriarchy is deep-rooted which is the
prime cause of abortion based on selective sex, where a boy is preferred over a girl.28 The
very notion of considering girl as the property of her husband is wrong as it begets gender-
based inequality. Gender-based equality should be aimed in order to eradicate the practice of
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killing female foetus and widespread female infanticide.

Further, it is opined that a strong economy with decreased poverty is the need of the hour as it
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translates into better and stable income for the members falling in the lower strata which
would prevent poor people to opt for sex-selective abortion. It must be emphasised that lesser
financial constraints in the family would reduce and eventually eliminate the menace sex-
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selective abortion, thereby improving the sex ratio of the country gradually. Thus, moral
condemnation and legal prohibition should be every countries' official position and legal
weapon in the arsenal to fight the jeopardy of sex-selective abortion.
tn

REFERENCES
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1. Actionoid, 'Disappearing Daughters' ActionAidUK (IDRC CRDI)

<https://www.actionaid.org.uk/sites/default/files/doc_lib/disappearing_daughters_0608.pdf>
accessed 23 April 2020.
ep

27
Kamlesh Madan and Martijn H. Breuning, 'Impact of Prenatal Technologies on the Sex ratio in India: An
Overview' Genet Med (2014) 16(6): 425–432. <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4052431/>
accessed 24 April 2020.
Pr

28
'India Witnesses One of the Highest Female Infanticide Incidents in the World: Study' (Down to Earth 19
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infanticide-incidents-in-the-world-54803> accessed 25 April 2020.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3689069
 2. Adam Forrest, 'Early Gender Tests Leading to Selective abortions of Girls in UK'
(Independant, UK 17 September 2018

ed
<https://www.independent.co.uk/news/health/selective-abortions-gender-tests-girls-uk-
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iew
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women/#_ftn29> accessed 20 April 2020.
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v
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ot

search-problem/> accessed 20 April 2020.

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tn

Sex-Selective Abortion Laws in the United States' (2014) Cornell Law Faculty Publications.
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Pr

Data from 2005 National Inter Census Survey' (2009) BMJ 2009;338:b1211
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ed
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er
Evidence, and Ethical Issues [2014] Volume 40, Issue 4 Parental Diagnosis 398, 407.
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pe
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ot

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tn

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20. Josie Griffiths, 'Gender Agenda-How Does Gender Selection Work is it Legal in the
rin

UK and is it the Same as Early Foetus Gender Identification?' (TheSun 17 September 2018
<https://www.thesun.co.uk/fabulous/5360625/danielle-lloyd-gender-selection-legal-uk-early-
foetus-identification/> accessed 23 April 2020.
ep

21. Kamlesh Madan and Martijn H. Breuning, 'Impact of Prenatal Technologies on the
Sex ratio in India: An Overview' Genet Med (2014) 16(6): 425–432.
<https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4052431/> accessed 24 April 2020.
Pr

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3689069
 22. Kenan Farrei, ' Where Have All the Young Girls Gone? Preconception Gender
Selection in India and the United States' (2002) IND. INT'L & COMP. L. REV.

ed
<https://mckinneylaw.iu.edu/iiclr/pdf/vol13p253.pdf> accessed 20 April 2020.
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iew
abortions-killed-22-5-million-female-foetuses-in-china-india-64043> accessed 20 April 2020.
24. Lily Kuo, 'China: New Rules to Prevent Sex-Selective Abortions Raise Fears' (The
Guardian 22 June 2018) <https://www.theguardian.com/world/2018/jun/22/china-new-rules-
jiangxi-province-prevent-sex-selective-abortions> accessed 20 April 2020.

v
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re
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er
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27. Rikita Patel, 'Prenatal Tests are Misused for Sex-Selection in the UK' (BioNews 24
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29. Sital Kalantry, 'Harmful Anti-Sex-Selective Abortion Laws are Sweeping U.S. State
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31. Stefano Gennarini and J.D. 'Study Finds 23 Million Females are Missing Due to Sex-
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32. Sujatha Jesudason and Anat Shenker Osorio MAY 31, 2012Sex Selection in
America: Why It Persists and How We Can Change It (The Atlantic 31 May 2012)

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3689069
 <https://www.theatlantic.com/politics/archive/2012/05/sex-selection-in-america-why-it-
persists-and-how-we-can-change-it/257864/> accessed 20 April 2020.

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34. 'United Kingdom Bans Sex-Determination Based Abortions' (WorldPress Trust of
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BRIEF ABOUT AUTHOR

Shaheen Banoo is a published author of the Book titled "The 5C's of Law: Corporate Law,
Contract Law, Criminal Law, Civil Law & Cyber Law." She has served as the senior
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researcher to the prestigious International Association of Schools for cross-country law
teaching programme. She has collaborated with people from different universities of the
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world viz., Hautes Etudes Appliques du Droit University, France, Cavendish University
Uganda, and JSW Law School, Bhutan to write extensively on contemporary issues of law
withal. She has copious reputed publications to her credit videlicet research paper acceptance
from International Association of Law Schools, United States of America that attest to her
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dynamism and verve for legal research and writing. She is final year law student from
Symbiosis Law School, Pune (Symbiosis International University, India). She has gargantuan
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inclination apropos Banking Law and serves as a Legal Intern at Reserve Bank of India
(RBI), India's central bank.
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This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3689069