Female FoeticideWith Reference to Legal Senario

Submitted by: Pranav Khanna [Student PURC Ludhiana]

Introduction: Female infanticide has been a common practice in our country since centuries. Indian census has always shown a gendered imbalance. This marked gap between boys and girls, which has nationwide implications, is the result of decisions made at the most local level- the family. Sex selective abortion is a fairly recent phenomena but its root can be traced back to the age old practice of female infanticide.

One of the greatest threats to our contemporary civilization is the menace of skewed sex ratio. The increasing imbalance between men and women is leading to many crimes such as illegal trafficking of women, sexual assaults, polygamy and dehumanization of society. These acts have been increasing making this world unsafe for women. Female foeticide is one of the most nefarious crimes on this earth; perhaps what is detestable is that the people who commit crime belong to the educated class. To this menace our ancestral and biased view about male child, lack of education, ever increasing population and dowry have been good propellants. Some measures and their enforcement have to happen immediately. The ineffectiveness of the Pre-Natal Diagnostics Techniques (Regulation and Prevention of Misuse) Act is very much evident. Hence there needs to be quick reformation in the attitude of people to look beyond the legacy and transform this world as a better place to live in.

Son maniaIndian society, like most of the societies world over, is patrilineal, patriarchal andpatrilocal. According to Manu, a man has to be reborn as a man to attain moksha(redemption). A man cannot attain moksha unless he has a son to light his funeral pyre. Also, it says a woman who gives birth to only daughters may be left in the eleventh year of marriage. Obviously, it shows the gender bias in our male-dominated society.2 The age old preference for sons is motivated by economic, religious, social and emotional desires and norms that favor males and make females less desirable. Parents expect sons—but not daughters—to provide financial and emotional care, especially in their old age; sons add to family wealth and property while daughters drain it through dowries; sons continue the family lineage while daughters are married away to another household; sons perform important religious roles; and sons defend or exercise the family’s powerwhile daughters have to be defended and protected, creating a perceived burden on the household.3 This stereo-type notion of women as “burden” is one of the main reason behind female foeticide and infanticide.

What is female foeticide?

Female foeticide is a practice that involves the detection of the sex of the unborn baby in the womb of the mother and the decision to abort it if the sex of the child is detected as a girl. This could be done at the behest of the mother, or father, or both or under family pressure. This detection of the sex of the baby is done through three methods: (a) amniocentesis; (b) chronic villus sampling and (c) ultrasonography.

Legislative actions:To arrest this evil, the Forum against Sex Determination and Sex Preselection (FASDSP) a broad forum of feminist and human rights groups, was formed in 1984, and it has been lobbying for legislation to ban the practice. In 1988, the state of Maharashtra passed an Act banning prenatal diagnostic practices. In September 20, 1994 the Parliament had enacted the Pre-Natal Diagnostic Techniques (Regulation & Prevention of Misuse) Act, which came into force from January 1996. Later, the Act was amended with effect from February 14 2003 and was renamed the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act).

Ground reality:The ban on the government hospitals and clinics at the centre and in the states, making use of pre-natal sex determination for the purpose of abortion — a penal offence — led to the commercialization of the technology; private clinics providing sex determination tests through amniocentesis multiplied rapidly and widely. These tests are made available in areas that do not even have potable water, with marginal farmers willing to take loans at 25 per cent interest to have the test. People are encouraged to abort their female fetuses through advertisements in order to save the future cost of dowry. The portable ultrasoundmachine has facilitated doctors to go from house to house in towns and villages.4 Despite the law being there, due to lack of proper implementation, very few cases are registered. Under the two main laws (Medical Termination of Pregnancy (MTP) Act 1971 and the Pre Natal Diagnostic Techniques (PNDT) Act 1994, the Indian government has conceded that abortion may be carried out if there is (a) danger to the life of the mother in child birth, (b) if the child is at risk of being born handicapped, or (c) if the women has conceived the child as a result of rape. Women are also allowed the right to abortion if they wish to do so in the interest of keeping the family small. PNDT Act only focuses on regulation and control is techniques of pre-natal sex determination, not the access to abortion in any form. That is, the Act does not concern itself with selective abortion of female fetuses as such, but rather, with medical procedures to detect the sex of the foetus,which can lead to femicide. However, it is often seen that the decision of abortion is taken after the detection that the unborn child is female, especially if it is the second or third female child. It must be mentioned here that abortion has entered the lexicon of feminist struggle through a very different trajectory from that followed in the West. Here, the ‘right’ to abortion has never been at the centre of much debate since it is seen as a measure to control population growth.5 Since poverty is seen as a by -product of rising population, for developing countries like India, population control measures has been a

central focus of government programmes for economic development. The Medical Termination Act was passed in 1971 amidst Parliamentary rhetoric of choice and women’s rights, but it was clearly intended as a population measure, as several MPs pointed out during the debate on the Bill.6 Here, it is worth mentioning that a vocal and influential school of thought still justifies the selective abortion of female fetuses as aform of population control. Their argument is that to permit abortion of female fetuses would stop couples from continuing to have children until the desired son was produced.

Indeed, the statistics are startling. Numerous studies analyzing theskewed sex ratio demonstrate the extent of this shocking practice. At birth, thereought to be around 105 or 106 male children for every 100 female children, andthis proportion is about the same everywhere in the world. The ratio then slowlychanges and women, who are much healthier and more likely to survive thanmen, end up outnumbering the men. In places like in Europe and NorthAmerica, the ratio of women to men is typically around 1.05 or 1.06, or higher.5

In India, the 2001 census reveals that the overall sex ratio is 933 femalesfor every 1000 males, showing a marginal increase of 6 points from the 1991census of 927. However, this is a very sorry state indeed and we are doingmuch worse than over a hundred years ago when the sex ratio was 972 in 1901,946 in 1951 till the 933 today. This deterioration in women's position resultslargely from their unequal sharing in the advantages of medical and socialprogress.6

The child sex ratio is another story altogether. This child sex ratio hasshown a steady decrease since 1961 and shows no signs of improving. Fromthe 976 in 1961, we moved to 964 in 1971. In 1981, we evidenced a furtherdecline to 962 and even further to 945 in 1991. Today the child sex ratio is 927,a full 18 points drop. This can only mean one thing. More and more baby girlshave either been aborted or killed as infants since 1961 and that this trend

continues strong even today. Indeed, an improvement in the child sex ratio hasonly been marked in one state, Kerala, and two Union Territories, Lakshwadeepand Pondicherry. Everywhere else, there is a decrease in the number of girls.The greatest offenders in this area are the northern and the westernstates, with Punjab and Haryana leading the pack. In Punjab, the child sex ratiohas decreased by 77 points to a new and horrifying low of 798 females to a 1000males, and Haryana has seen a decrease of 60 points, meaning there are nowonly 819 females to a 1000 males. Other offenders high on this list are HimachalPradesh, Delhi, Chandigarh and Gujarat. What is also disturbing is that thistrend is also noticeable in other states, which evidenced a relatively healthy childsex ratio in 1991 and has now radically decreased.

Eradication of Situation:Unfortunately, various schemes to counter this situation brought out by manystates as well as at the central level have been ineffective in reducing the extentof this problem. However, we cannot let our despair or the extent of the problembe the justification for inaction. At this stage, removal of this practice mustinvolve: Focus on the humanist, as well as scientific and rational approach

and a move away from the traditional teachings which support such a practice; Empowerment of women and measures to deal with other

discriminatory practices such as dowry, etc.; Ensuring development of and access to good health care services; A strong ethical code for doctors; Simpler methods for complaint registration for all women,

particularly those who are most vulnerable; Publicity for the cause through the media and increasing awareness amongst the people through NGOs and other organizations; Regular appraisal and assessment of the indicators of the status of

women such as sex ratio, female mortality, literacy and economic participation.

Of course, we must recognize that infanticide is a crime of murder andpunishment should be given to both parents. There ought to be stricter controlover clinics that offer to identify the sex of a fetus and stronger check onabortions to ensure that they are not performed for the wrong reasons. Doctorsmust also be sensitized and strong punitive measures must be taken againstthose who violate the law. To conclude, I would just like to say that this is not somuch a legal problem as it is a social disease. We need to truly rid ourselves ofthis son-obsession and understand that our lives would be just as fulfilling, if notmore, if our children were to be girls. This is not to say that the law can play norole. We must all work together to ensure that each and every baby girl is givenher due.

ConclusionFemale feticide is one extreme manifestation of violence against women. Unfortunately, as Kerala High Court Chief Justice K K Usha mentioned in a seminar that genderspecific laws like MTP Act 1971 which aims at empowering women has been grossly misused for female foeticide after carrying out legally banned pre-natal sex determination tests to meet the desire of the family to have a male child.10 Misuse of law, wrong implementation of law has added to the woe of female foeticide. Firstly, it must be realized that even a full proof law is just beginning of a struggle to curb notorious practice like female foeticide. As Haksar points out that law reform cannot be divorced from the more fundamental struggle to transform social values.11 Moreover, it is necessary to understand that progress of science and technology is mandatory for the progress of a nation, but what matters most is its manifestation and beneficial application. Female foeticide is a reflection of what happens when technologies are misused. The only long term solution is to change attitudes. Government, civil society and media should work hand in hand to combat this inhuman practice. The society as a whole should ensure that the girl is safe, secure, educated, economically and emotionally independent. Worsening sex ratios is bound to have a devastating effect on the human civilization. Time has arrived to declare a crusade against female foeticide, both on individual and collective level, to stop elimination of unborn daughters only because of their sex.

Submitted By:Pranav KhannaPURC LudhianaLAW Deptt.