lawyers in India

Female Foeticide: Need To Change The Mindset of People

Written by: Banashri.B.Savanoor B.A.,LLB(Hons) Graduate from Karnataka University
Medico-legal in India
Legal Service
  • 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.

    Growing menace of Female Foeticide:

    The social, cultural and religious fiber of India is pre-dominantly patriarchal contributing extensively to the secondary status of women. The patrilineal social structure based on the foundation that the family runs through a male and makes male a precious commodity that needs to be protected and given special status. Another important pillar of the patriarchal structure is marriage wherein women are given sub-ordinate status having no say in the running of their life or any control over their body or bodily integrity.

    Marriage is also considered as a process where by the burden of the father is passed on to the husband for a very high price. The dowry or groom price is so staggeringly high irrespective of the class structure that generations may have to toil to repay the debts incurred during marriage. All of this has contributed to a low status for women in the society to such an extent that even the birth of a girl child in a family is sought to be avoided. A deleterious fall out of the subjugated position of women is their vulnerability to violence, rape, sexual abuse dowry harassment, domestic violence, trafficking etc with little or no mechanisms of combating the same either by way of effective laws and implementation or civil society action. Various methods were found to eliminate the girl child after her birth like starving her, crushing her under bed or giving poison etc.

    Pertinently the responsibility for killing the child was fixed on the mother/women as she was considered responsible for bringing the girl child into existence. The causes for elimination of girl child indicate that the reasons are similar and different depending upon the geographical location in which female infanticide is practiced. An exorbitant dowry demand is one of the main reasons for female infanticide. Some of the other reasons are the belief that it is only the son who can perform the last rites, lineage and inheritance runs through the male line, sons will look after parents in old age, men are bread winners etc. Strong male preference and the consequent elimination of the female has continued to increase rather than decline with the spread of education.[1]

    The recent technological developments in medical practice combined with a vigorous pursuit of growth of the private health sector have led to the mushrooming of a variety of sex-selective services. This has happened not only in urban areas but deep within rural countryside also. Female infanticide in most places has been replaced by female foeticide. Female foeticide or sex selective abortion is the elimination of the female foetus in the womb itself. The sex of the foetus is determined by methods like amniocentesis, chrion villus Biopsy and now by the most popular technique ultrasonograghy. Once the sex of the foetus is determined, if it is a female foetus, it is aborted. The increase in female foeticide has seen the proportionate decrease in female sex ratio which has hit an all time low especially in the 0-6 age group and if this decline is not checked the very delicate equilibrium of nature can be permanently destroyed.[2]

    Sex-determination tests and female foeticide:

    The most commonly used sex-determination test is ammnicentesis.It was used as an aid to detect any abnormality in the unborn child. But over the years it has been used to determine the sex of the foetus. In India since 1978 the test is being used as a sex determination or sex preselection test. Since then the test has become extremely popular and has led to a mushrooming of private clinics which perform the test all over the country. Earlier doctors employed the controversial amniocentesis test done between 14-18 weeks to determine the sex of the foetus. The ultrasound technique has also been improved.

    The sex of a foetus can be determined by more sophisticated machines within 13-14 weeks of pregnancy by trans-vaginal sonography and by 14 to 16 weeks through abdominal ultrasound. These methods have rendered sex determination cheap and easy. Some sophisticated method like Ericsson Method which separates the X and Y Chromos from the sperm and then Injects back only Y chromos into the womb to ensure a boy have also been developed. And they cost around Rupees 15,000 to 25,000.[3]

    The cultural preferences for sons rather than daughters have skewed sex ratios in India. Census data show a consistent drop in the sex ratio (933F:1000M).The intensity of sex ratio imbalance in the 0-6 age group in some states are Punjab (793),Haryana(820),Himachal Pradesh(897),Gujarat(878)The menace of Female foeticide started emerging and spreading all over northern and western India and later on all over the country. Today female foeticide is no more an urban phenomenon, rural people are also getting more and more involved in it and come all the way long to cities to get these tests done.

    Whether Female Foeticide is Justied or not?

    These unscrupulous murders of female or girls is justified on two grounds. First, it reduces the population and second is that the poor parents will be saved from the expenses which they would have to incur in the marriage of their daughter if she had born. So the murder of a female foetus is considered to be a solution to two major problems i.e. population problem and dowry. But how far are these grounds justified. India was the first country to adopt family planning as an official programme to reduce the birthrate. But population of the country is still growing. One of the reasons for the growth of population in India is the desire for a son. Today the sex-determination tests have provided an easy way out to know whether or not a woman will get a son.

    Each time a woman gets pregnant she can have the sex of the foetus determined and get it aborted if it happens to be a female child. Abortion was punishable under Indian Penal Code but it was legalized with the passing of Medical Termination of Pregnancy Act, 1971.This act along with its revised rules was envisaged as a mile stone in the modernization of Indian society through laws. Doctors are against the ban on amniocentesis because it will lead to an underground practice in the field.

    None of these arguments given in favour of the continuance of sex determination tests holds good. It is true that people should have every right to plan their families. If a man has a daughter and he wants son let him have it. But difficulty lies if he wants son only. How far it is correct to permit him to do so. The sex determination test is used to destroy the female foetus than to control the number of children or to have a child of the sex of one's choice. In India the choice is always male child and it is the female only that is unwanted child.

    Though it is the individual interest that is paramount but he has a duty towards the society also as a member of the society. The argument that banning the test would lead to underground practice does not mean that no law should be passed to check it. And the argument that it is a symbol of female emancipation is a nullity. Because how far is it just to be too liberal to one generation of women that they have right even to have the children of their own choice and too cruel to the other generation to which the very right to take birth and come into existence be denied. If female foeticide is continued the way it is continuing, it will render all the women and child health programmes a nullity.[4]

    PNDT (Regulation and Prevention of Misuse) Act-1994:

    Due to excessive female infanticide in the northern and western states of India there were strong agitations and protests to curb the evil of female foeticide.The state of Maharashtra became the first in country to ban pre-natal sex determination through the enactment of Maharashtra regulation of prenatal diagnostics techniques act. Similar efforts at the national level resulted in the enactment of the Central pre-natal diagnostic techniques (Regulation and prevention of misuse) Act 1994.

    The act has two aspects viz., regulatory and preventive. It seeks to regulate the use of pre-natal diagnostic techniques for legal or medical purposes and prevent misuse for illegal purposes. The act provides for the setting up of various bodies along with their composition powers and functions. There is a central supervisory board, appropriate authorities and advisory committees.[5]

    Enforcement and effectiveness:
    In India, the policy environment is supportive of the reproductive choices of women and men. The medical termination of pregnancy act is legal and it allows for induced abortions where pregnancy carries grave injury to women's health. A negative outcome of the PNDT act was that the practice of sex determination was driven nonetheless and the availability of services proliferated correspondingly. Ultra sound machines continued to be widely available and simple to use. In such an environment it is very difficult to enforce a law which sought to control information that travels through informal channels and can operate secretly. Law cannot control the information that is conveyed through a mere smile or frown face. Unsurprisingly the enforcement if law becomes weak. there is still utmost controversy as to whom will serve as the watch dog to control the misuse of the practice of female foeticide and its implementation is difficult and considering it can only be the doctor who carries out the abortion or mother of the foetus who can be punished. This is very ambiguous as many women are indeed forced by family members to go ahead with an abortion of a female foetus. Thus once again putting the life of thousands of women in danger. Other reasons for limited effectiveness of the law include lack of political will to ensure enforcement. Experience has shown that in general the role of legislation is subverting a social practice is limited.[6]

    The ministry of health and family welfare had proposed a series of amendment to the 1994 act. Although there was a central act regulating and preventing the misuse of pre-natal diagnostic techniques the menace of female foeticide continued. So there was need for much more stringent rules to curb this evil. These were given parliamentary approval. The act was amended in 2002 and in 2003 Rules were framed by the central government under section 32 of the act. These rules may be called Pre-conception and pre-natal diagnostic techniques (Prohibition of sex selection) rules 1996.

    Judicial Responses:
    Reports reveal that baby girls are neglected, malnourished or even killed at birth. Anecdotal evidence suggests that sex selecting clinics and the abortion of girls re still wide spread. Tougher legislation have made it possible for the authorities to crack down staging raids on pre-prenatal clinics to check records and look for evidence of illegal sex selection. Officials admit that it is hard to find evidence. Pre-natal scans to check for abnormalities are legal and it can be impossible to prove that a doctor has infact used one to reveal baby's sex. The recent study has reported that India has lost 10 million girls over the last two decades. After the enactment of the act in 1994, in the year 2006 there was first conviction. Where a doctor and a lab technician were sentenced to two year of imprisonment under the act.

    Public interest litigation was also file in Supreme Court by concerned health activists. Centre for enquiry into Health and allied themes [CEHAT] v. Union of India. AIR 2001 SC 2007.

    In response to the petition, the court issued in notices to the central and state governments to file replies to central government. The central Supervisory board, State Governments under the administrations. And to appoint appropriate authorities at district and sub-district level. Directions stated that the list of the members appointed should be published in the print and electronic media. Appropriate authorities were further directed to send a quarterly report to the central supervisory board. public awareness against the practice of pre-natal sex determination.

    Supreme Court directed state governments to take further steps to enforce the law and the secretary. Department of family welfare was directed to file an affidavit indicating the status of actions taken. Supreme Court directed 9 companies to supply the information of the machines sold to various clinics in the last 5 years. Details of about 11,200 machines from all these companies and fed into a common data base. Addresses received from the manufacturers were also sent to concerned states and to launch prosecution against those bodies using ultrasound machines that had filed to get themselves registered under the act. The court directed that the ultrasound machines/scanners be sealed and seized if they were being used without registration. Three associations' viz., The Indian Medical Association [IMA], Indian Radiologist Association [IRA], and the Federation of Obstetricians and Gynecologists Societies of India [FOGSI] were asked to furnish details of members using these machines. Since the supreme court directive 99 cases were registered and in 232 cases ultrasound machines, other equipment and records were seized Today there is an estimated 25000 ultrasound machines in the country, of these 15000 have been registered. State governments have communicated to the central government in writing the according to official reports received, they are satisfied that sex determination services are no longer being provided in their respective states.[7]

    However, it is widely believed that while these services are no longer openly available their clandestine availability and utilization continues all over the country. The observation of the National inspection and Monitoring Commission confirm this situation and endorse the need for stricter enforcement of laws.

    Yatra Naranthya Pujyathe Raman The Tatra Devatha” has been our culture. In our country a girl is worshiped as a Devi on one hand and denied her existence on the other as if she has no right to live. Time has perhaps come for us to get rid of male chauvinism and treat children as gifts of nature regardless of their gender. We cannot imagine a society in the future where there will be only males and no females. The society will be full of crimes and evils. Only if legislations enacted in this behalf are not sufficient. Orthodox views regarding women need to be changed. The PNDT Act should penalize and punish the violators of this crime strictly. The pernicious acts of female foeticide and coercive abortions have to end before women becomes endangered species.

    [1] Manjeet Rathe, Eradicate Scourge of Female Foeticide,People's Democracy,Vol XXV,No 39,September 30
    [2] Manmeet Kaur, Female Foeticide: A Sociological Perspective, The Journal of Family Welfare,Vol 39(1),March 1993
    [3] Sangeeta Cheetu, Growing Menace of Female Foeticide in India, ,Indian Socio-Legal Journal,Vol XVII (1 and 2),1991
    [4] Pre-natal Diagnostics Techniques (Regulation and Prevention of Misuse) Act 1994
    [5] The Pre-birth Elimination of Females in India, Ending the Practice: Changing the Mindset, A National Advocacy Strategy Draft, June 17,2002
    [6] Gautam Chikermane, To Save the Girl Child Invest Indian Express, March 30,2006
    [7] Pamela Philipose, Women versus Girls, Indian Express, April 5,2006

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