Female foeticide

By Gayatri Loomba

The West Bengal National University of Juridical Sciences, Kolkata

Editor’s note:

Female foeticide is the gory practise of sex-selective abortion, which renders the girl child a victim of the highest degree of gender-rooted prejudice. This paper examines the factors leading to the continuance of this practice despite despite the existence of specific legislations aiming to criminalize and tackle it. It also looks into the sociological aspects behind such sex-selective abortions, with a glance at future consequences for the same. An analysis of the Pre-Conception and the Pre-Natal Diagnostic Techniques Act, 1994 is also made.

Introduction

“If it seems horrible to kill a man in his own house.., it ought surely to be more atrocious to destroy a foetus in the womb before it has come to light.” ~ Jean Calvin

“A woman upon being told that her child is healthy and beautiful looks away sullen. The nurse, pedantically, explains “It’s a girl. That’s why”.”[1]

The plight of Indian women and their undesirability in urban and rural backgrounds, amidst the economic and technological prosperity of the country, makes one question the belief of development serving as a panacea for gnawing social evils.[2] Female foeticide, or the gory practise of sex-selective abortion, renders the girl child a victim of the highest degree of gender-rooted prejudice and discrimination, and continues to be practised with fervour across the country, despite the existence of specific legislations aiming to criminalize and tackle the crime.[3]

Through this project, the author seeks to understand the reasons behind female foeticide in India and its consequences and also seeks to question the effectiveness of legal methodology as a means to eradicate the problem. The first part of the project deals with the sociological aspects of sex-selective abortion inclusive of the reasons of such atrocities and the implications and the future consequences of the same. Thereafter, a window is opened to the different statutes that aim to curb the problem, with special reference to the Pre-Conception and the Pre-Natal Diagnostic Techniques Act, 1994 (hereinafter, PCPNDT Act). The author analyses the efficacy of the legislations in light of the available statistical data, and concludes with propositions to help the statute reach its goal and ensure a better and safer haven for the girl child.

Female foeticide and legal initiatives

Causes and Implications

Female foeticide or the termination of the life of the foetus inside the womb of the mother, provided the foetus is found to be of a girl child, is one of the most horrendous practises of male autonomy found in patriarchal societies, like India. The ever declining sex ratio of the age group of 0-6 years of the country, since the 1990’s, is testimony to the prevalence of sex selection in the country,[4] whereby people ensure the probability of the offspring not being of the female sex[5] by making use of the plethora of medical technologies available in the market or resorting to murder of the infant girl child.[6]

The underlying inequalities between men and women, borne of cultural, religious and social influences and the undying desire for a male child provide for the basic reasons that promote the act.[7] Since time immemorial, women have been regarded as mere tools to be placed in the “custody of males from womb to tomb”[8] and special rituals like the Punsavan Sanskar accompanied with prayers like ‘birth of a girl, grant elsewhere: here, grant a boy[9]have been performed to “remove the semen and womb related deficiencies of the unborn child and to make it male’[10]. Till today, in terms of economic prosperity, male children are considered to be “assets” to the family as they prove to be future bread-earners of the family and are also capable of carrying the family name and lineage forward, as opposed to girl children who are considered to be ‘paraya dhan’ or a painful liability on the resources of the family to be raised to be married off into another family after paying a huge sum as dowry.[11] Male children are considered to be supporters of their parents in old age in contrast with the female children who are born only to contribute to the well-being of their matrimonial family.[12] Similarly, male children are the ones who are capable of performing religious rituals like ‘peend daan’ or the ‘lighting up of the funeral pyre’ which enable a person to attain salvation or Moksha.[13] When seen through the lens painted above, the girl child is left to be considered as a liability, leading families, who value children on the basis of the wealth and economic returns that they provide to the family in the long run, to prefer sons over daughters. This bias may at times be so exemplified so as to usher family members to kill or abort the female infant or foetus rather than holding responsibility[14] of their happy lives.[15] The instances of sexual violence against women, ranging from rape to dowry death[16], and their ill treatment through life in terms of the denial of adequate health care, education and medical facilities; have at times forced women to resort to the killing of their own daughters[17] in an attempt to save them from the ‘prolonged life of misery, inequality and suffering’.[18] A cumulative effect of the above reasons has also led to societal torture and rebuke of women[19] who give birth to a female child, strengthening the pre-existing notions of gender inequality and fuelling the practise of sex-selection further.[20]

The Indian markets saw the introduction of various low-cost and affordable technologies that accurately determined the sex of the foetus in the 1970’s. The medical fraternity, being conscious of the ingrained hatred towards the female child, vehemently started advertising detection of the sex of the foetus and consequent abortion in cases of detection of the female child by using banners that stated ‘Spend Rs. 500 now and save Rs. 50,000 later[21]. Female foeticide, thus replaced the act of infanticide and became the more acceptable and cleaner measure of getting rid of the female child as opposed to infanticide.[22] Proponents of sex-detection tests supported the opportunist steps of the medical circle, stating that women had the choice of determining the sex of their off-springs and that eventually with the limited “supply” of women in comparison to men in the society, their demand and thus status would increase.[23] The above mentioned views propelled foeticide further and led to a scenario of ever decreasing sex-ratios of the ages 0-6 of the country with the sex ratio of 2011 hitting an all-time low of merely 914 female births to 1000 male births as opposed to the world average of 950 female births to 1000 male births.[24]

This declining sex ratio conclusively evidenced sex-selection and presented itself as a potent omen of social upheaval. Scholars opined that a continued decline in the sex ratios would lead to a massive shortage of women in the demographics of the society which could result in “marriage squeeze” or “polyandry” at very early age. Apart from the vices that polyandry would present, child marriages would result in denial of proper opportunities for the proper and over-all development of the girl child who would have to take on the role of a mother and a wife at a tender age.[25] Such a scenario could well lead to increased incidents of sexual violence and trafficking of women and further denigrate the position of women in societal circles,[26] leading to an everlasting vicious circle. Scholars and sociologists also expressed concern about the reproductive health and psychological well-being of the women forced to abort their female foetuses frequently.[27]

In light of the above discussion and the fact of the myopic and static perceptions of the girl child, it becomes essential to call for immediate action against this discriminatory and derogatory practise and tame the evil of foeticide.

Legal initiatives and their efficacy

Legal initiatives to curb gender discrimination and its manifestations in the form of infanticide and foeticide have been in force since the inception of the practise. With the modernization of the medical industry and the use of technology for foeticide, there was a dire need to draw up new effective legislations to rein in the problem of sex-selective abortions.

The Female Infanticide Prevention Act, 1870, implemented by the British Government in the latter part of the nineteenth century was the first statute that aimed to deter people from murdering female infants by penalizing the action and laying down specific punishments for the same.[28] Though the Britishers supplemented their legal initiatives with the establishment of a Government Dowry fund to incentivize destitute parents to appreciate the female child[29] they were unable to yield prominent results as child-birth was considered a domestic matter which was hardly ever disclosed to the throne by means of registrations or information[30] and infanticide was buried as a family secret. Even Section 315 of the Indian Penal Code, 1860 that criminalized miscarriage caused without the consent of the pregnant woman proved to be futile with the requisite proof being difficult to obtain. The poor enforcement of the Dowry Prohibition Act, 1961 even after repeated amendments did little to make the girl child feel as a lesser burden.[31]

The 1970’s ushered a new crisis in the already despair-ridden social scenario with the introduction of varied pre-natal diagnostic techniques and the passage of the Medical Termination of Pregnancy Act, 1971(MTP Act). While the pre-natal techniques, like amniocentesis or ultrasonography, were initially introduced for the detection of congenial deformities like thalassemia or sickle cell anaemia[32], they eventually started being used by the medical practitioners as tools for the detection of the sex of the foetus for the purposes of sex-selective abortion.[33] With therapeutic abortion up to twenty months of pregnancy legally allowed under the MTP Act and the facility available free of charge in government clinics and hospitals, female foeticide became extremely frequent[34] and sex-detection became a fruitful business to be advertised and invested in.[35] Various feminists and human rights groups started campaigning against the violence lashed on the female foetus and in 1988, the Maharashtra government gave way to their demands by enacting the Maharashtra Regulation of Prenatal Diagnostic Techniques Act, 1988 (MRPDT Act).[36] Following the example of the Maharashtra legislature the Central Government modelled the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT Act). The Preamble of the Act stating “the prevention of the misuse of such techniques for the purpose of pre-natal sex determination leading to female foeticide” made the intentions and the scope of the Act very clear as did the provisions which stated that pre-natal techniques could only be used for the detection of genetic abnormalities[37] of the foetus provided the pregnant woman was proved to be above the age of thirty-five, or shown to have undergone two or more spontaneous and not therapeutic abortions, where she had been exposed to teratogenic substances or where her family had a history of mental retardation or physical deformities.[38]The Act prohibited encouragement for the use of procedures for sex detection[39] as also penalized and imprisoned the medical practitioners found to be indulging or advertising[40] in sex determination or sex-selective abortion[41] with a term of three years and a fine of up to ten thousand rupees.[42] Seeing how foeticide found itself at the core of the issue of medical ethics and the closed-door relationship between the doctor and the patient, the Parliament introduced Clause 7.6 in the Medical Council Act, 1956 which made the conduction of “sex determination tests undertaken with the intent to terminate the life of a female foetus” an act equivalent to “professional misconduct.. rendering him liable to proceedings”[43] as well as the removal of his name from the Medical Council for at least a period of two years.[44] However, the implementation of this Act which necessitated the formation of the Central Supervisory Board[45] was tardy and lackadaisical with the Act only coming into operation two years after its enactment.[46] The lack of Government initiative in enforcing the provisions of the Act or ensuring deterrent convictions even after the lapse of five years, resulted in various public interest litigations filed by the Centre for Enquiry of Health and Allied Themes[47]. The petitioners not only raised voices against the “apathy of the states” but also the casual attitude towards licensing of ultrasound centres[48] and the inaction towards the illegal ultrasound machines used for sex-selection. The Supreme Court passed a multitude of orders regarding the implementation of the Act and the necessity of the Central and State Advisory Boards to earnestly spread awareness about the ills of female foeticide[49] to ensure that the Act became more than mere ink on paper.[50] The Court also took cognizance of the various ‘pre-conception techniques’ like the Ericsson Method, and the Pre-Implantation Genetic Diagnosis Method which enabled to fix the sex of the fetus even prior to conception, that were sprouting up through medical circles.[51] Therefore, under the orders and directives of the Court, a more powerfully amended version of the Act was introduced in the Parliament in 2003 termed the Pre-Conception and Pre-Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. The Act expanded the ambit of the PNDT Act by prohibiting sex-selection before or after conception,[52] increasing the penal and fiscal liabilities in cases of default[53] and bringing “vehicles carrying ultrasound machines”, as was popular in those times, into the ambit of medical clinics or centres capable of regulation under the Act.[54] Keeping with the technologically advanced times, advertisements of sex-selection and detection through the internet and other modes of interaction were also banned[55] and successful convictions made on the ground.[56] Though the Act prohibited communication of the sex of the foetus “to the pregnant woman and her relatives by the means of signs or words”[57], the same was not properly regulated with the Act failing to curb the usage of colloquial phrases or the indicative display of numbers like “6 for boy and 9 for girl foetus” thus leading to abortions.[58] The implementation of revised Act remained slow for the most part, with very few convictions based on sting operations more than due inquiry[59], though the Supreme Court and High Courts kept issuing beneficial judgments to promote the strict implementation of the Act through the means of various public interest litigations[60] and suo-moto actions[61]. The limited implementation of the Act was met with resistance from the public expressed through law suits challenging the constitutionality of the Act. The proponents of sex-selective abortions not only stated that the Act went against the Right to Life and Personal Liberty as envisaged in Article 21 of the Constitution by denying them the right to choose the family they desire, but also was discriminatory to women who believed the female foetus to be a source of mental anguish and hence wanted abortion under the MTP Act.[62] The courts however maintained the legality of the Act, reprimanding the petitioner for advocating ill feelings towards the girl child and insulting and humiliating the dignity of womanhood.[63] They further declared that the unborn child had a greater right to life and development and discriminatory killing of female fetuses could not in any way be adjusted in the compass of Article 21.[64]

Therefore, if enacted sincerely, the Act may prove to be the harbinger of safety and dignity for all of womankind.

Conclusion

The ever falling sex ratios of different states[65]  and the limited convictions and prosecutions under the PCPNDT Act bring to limelight the necessity of mobilizing political will and ensuring proper implementation of the provisions of the Act as a step forward in curbing the evil of foeticide. However, as the crime is borne more of the skewed perceptions of the society rather than any notion of delinquency, it is essential to attack the problem with a multi-prong and multi-sectoral approach. Not only is it important to empower women by providing them with the opportunity to develop in all spheres of life through education, health care facilities, and equal opportunities, but also to ensure that other crimes related to womanhood, like Dowry deaths, rape, etc. are successfully eradicated. It is believed that financial incentives by means of cash transfers to the parents of the girl to educate her or help in her marriage finances through schemes like Dhan Lakshmi, or Laksmi Yojna Cetra[66] could prove to be helpful in changing the perception of women as mere liabilities, and drive a plethora of reactions leading to betterment of the position and status of women in the society.[67] Some argue that measures as harsh as the amendment of the MTP Act prohibiting abortions after the first twelve months of pregnancy after which sex-detection is possible should be taken at-least till the time female foeticide is obliterated.[68]

To conclude, the author feels coordinated action plan that uses all the above discussed methodologies; financial, social and legal; is the best way to ensure that India becomes a safe harbour for the girl child and this deplorable social exigency remains only a distant sad memory forever.

Edited by Neerja Gurnani

[1]Justice Y.K. Sabharwal, ‘Education of Female Foeticide’ <http://supremecourtofindia.nic.in/speeches/speeches_2006/eff.pdf>  accessed 25th November, 2013

[2]Ibid.

[3]Indu Grewal, J. Kishore, ‘Female Foeticide in India’ (International Humanist and Ethical Union, 1st May,2004) < http://iheu.org/content/female-foeticide-india> accessed 24th November, 2013

[4] Sonia Bhalotra, ‘Where Have All the Young Girls Gone? The Rise in Female Foeticide in India’ (Ideas for India, 7th November 2012) <http://www.ideasforindia.in/article.aspx?article_id=71> accessed 24th November, 2013

[5] Section 2(o) of the Pre Conception and Pre Natal Diagnostic Techniques Act, 1994

[6] ‘Female Foeticide: Causes, Effects and Solutions’ (30th March, 2012) <http://silverstararrow.hubpages.com/hub/Female-Feticide-Causes-Effects-and-Solutions> accessed 24th November, 2013

[7] Ibid.

[8] Suprna n(6)

[9] Ibid.

[10]Ganeer Mohammad, ‘Female Foeticide-The Bitter Truth’ (16th July, 2012) < http://www.islamhinduism.com/hinduism/analysis/245-female-foeticide-the-bitter-truth-hindu-scriptures> accessed 24th November, 2013

[11] ‘Case Study: Female Infanticide’ <http://www.gendercide.org/case_infanticide.html>  accessed 24th November, 2013

[12]Ashish Bose, ‘Fighting Female Foeticide’, (36) Economic and Political Weekly, (8th September 2001)

[13]Dr. KC Jena, ;Female Foeticide in India: A Serious Challenge for the Society’ <http://orissa.gov.in/e-magazine/Orissareview/2008/December-2008/engpdf/8-17.pdf>  accessed 24th November, 2013

[14] Ayana Gray, ‘Sex-Selective Abortion, Female Infanticide, And their Lasting Effects in China and India’ < http://www.tcr.org/tcr/essays/EP_TCR_21_1_F10_Infanticide.pdf> accessed 24th November, 2013

[15] Ibid.

[16] BB Savanoor, ‘Female Foeticide: Need to Change the Mindset of People’ <http://www.legalserviceindia.com/article/l292-Female-Foeticide.html> accessed 24th November, 2013

[17] Ibid.

[18] ‘Female Foeticide: Causes, Effects and Solutions’ (30th March, 2012) <http://silverstararrow.hubpages.com/ /Female-Feticide-Causes-Effects-and-Solutions> accessed 24th November, 2013

[19]‘A Girl’s Right to Live’, Conference of NGO’s with Consultative Status with the United Nations, < http://www.crin.org/docs/Girl’s%20infanticide%20CSW%202007.txt> accessed 24th November, 2013

[20] Supra n(18)

[21] Lakshmi Lingam, ‘Sex Detection Tests and Female Foeticide: Discrimination Before Birth’ < http://www.womenstudies.in/elib/foeticide/fo_sex_detection.pdf> accessed 24th November, 2013

[22]Chetan Sharma, Divya Jain, ‘Technology and its Impact on Female Foeticide in India’ (Government Technology, 18th May 2005) < http://www.govtech.com/e-government/Technology-and-its-Impact-on-Female.html> accessed 24th November, 2013

[23] Ibid. hub

[24] ‘Census of India 2011: Child Sex Ratio Drops to Lowest Since Independence’ (The Economic Times, 31st March, 2011) <http://articles.economictimes.indiatimes.com/2011-03-31/news/29365989_1_ratio-males-girl-child> accessed 24m th November, 2013

[25] Kate Gilles, Charlotte Feldman Jacob, ‘When Technology and Tradition Collide’: From Gender Bias to Sex Selection’ < http://www.prb.org/pdf12/gender-bias-sex-selection.pdf> accessed 24th November, 2013

[26] Ibid.

[27]Supra n(3)

[28] Section 4 and 5 of the Female Infanticide Prevention Act, 1870.

[29] Rita Patel, ‘The Practise of Sex Selective Abortion in India: May you Be the Mother of a Hundred Sons’ <http://cgi.unc.edu/uploads/media_items/the-practice-of-sex-selective-abortion-in-india-may-you-be-the-mother-of-a-hundred-sons.original.pdf> accessed 24th November, 2013

[30] Ibid.

[31]‘Implement Dowry Prohibition Act’ (The Hindu, 4th May 2005) <http://www.hindu.com/2005/05/04/stories/2005050404321500.htm> accessed 24th May 2013

[32] ‘Prenatal Diagnosis’ <http://library.med.utah.edu/WebPath/TUTORIAL/PRENATAL/PRENATAL.html> accessed 24th November, 2013

[33]Supra n(29)

[34]Ibid.

[35]‘Evidence based Causes of Female Foeticide Among Economically Well Off Communities in Punjab: Strategies to Change the Mindset’ <http://wcd.nic.in/research/Ffew207.pdf> accessed 24th November, 2013

[36] Supra n(29)

[37]Section 4 of the PNDT Act, 1994

[38]Ibid.

[39]Ibid.

[40] Section 22 of the PNDT Act, 1994

[41]Section 6 of the PNDT Act, 1994

[42] Section 23 of the PNDT Act, 1994

[43] See generally Clause 7.6 of the Code of Ethics Regulations, 2002 as available on <http://www.mciindia.org/RulesandRegulations/CodeofMedicalEthicsRegulations2002.aspx> accessed 24th November, 2013

[44]Section 23(2) of the PNDT Act, 1994

[45]Supra n(3)

[46]CEHAT v Union of India (2001) 5 SCC 577

[47]Ibid.

[48]Ashish Bose, ‘Curbing Female Foeticide’, (37) Economic and Political Weekly 8, 23rd February 2002

[49]CEHAT v Union of India (2001) 5 SCC 577

[50]Shalini P Joshi, ‘Compilation and Analysis of Case Laws on Pre-Conception and Pre-Natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994’<http://india.unfpa.org/drive/Compilation_and_Analysis_of_Case_Laws_on_Pre_Conception.pdf> accessed 24th November, 2013

[51] ‘The PCPNDT Act: Answers to Frequently Asked Questions’ <http://india.unfpa.org/drive/FAQsforMedicalProfessionals.pdf> accessed 24th November, 2013

[52]Section 3A and 3B of the PCPNDT Act, 1994

[53] Section 23 of the PCPNDT Act, 1994

[54] Section 2(d) of the PCPNDT Act, 1994

[55] Explanation to Section 22 of the PCPNDT Act, 1994

[56]Mumbai Municipal Corporation V Chaya Rajesh, Criminal Case No. 10169/MS/2004

[57]Section 5 of the PCPNDT Act, 1994

[58]‘SatyamevJayate:Female Foeticide-6th May, 2012’: A TV Series based on social evils gnawing India, available at <http://www.youtube.com/watch?v=NG3WygJmiVs> accessed 24th November, 2013

[59] Refer: State v Dr. Anil Sbhani and Ors., Case No. RB 298/2 of 2001 in the District Court of Faridabad, Haryana.

[60]Hemanta Rath v Union of India AIR 2008 Orisssa HC 71

[61]Court on its Own Motion v State of Punjab, Civil Petition No. 17964 of 2007

[62]Vijay Sharma v Union of India AIR 2008 Bom 29

[63]Ibid.

[64]VinodSoni v Union of India 2005 Cri LJ 3408 (Mumbai)

[65]‘Girl Child Sex Ratio In India has Fallen to 919 in 2011: Report’ The Indian Express, 3rd November 2013 <http://www.indianexpress.com/news/girl-child-sex-ratio-in-india-has-fallen-to-919-in-2011-report/1190598/> accessed 24th November, 2013

[66] ‘Special Financial Incentive Schemes for the Girl Child in India’ , < http://www.unfpa.org/gender/docs/sexselection/UNFPA_Publication-39772.pdf> accessed 24th November, 2013

[67] Ibid.

[68] P. Sundaramma, ‘Does Abortion Abet Female Foeticide’ (The Hindu, 14th June, 2012) <http://www.thehindu.com/opinion/open-page/does-abortion-law-abet-female-foeticide/article3459939.ece> accessed 24th November, 2013

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