A Cry Still Unheard: The Menace Of Female Foeticide In India “I am daughter of India. I am like your daughters who are playing in your premises, who are bringing laurels to the nation like Sunita Williams, Kiran Bedi, Kalpana Chawla, Sania Mirza etc. But there is a difference between me and all of you as I have been killed in the womb of my mother itself.”
Once in our lives, most of us must have heard that a child is a ‘gift’ from God. Though whatever biology may suggest, it is not an uncommon sight in India to see couples praying to be blessed with a child. But almost half of India, no longer considers it a blessing if that child happens to be a girl. The blessing soon becomes a curse and the ‘precious gift’ is done away with as soon as possible before extending another demand to God, that of a ‘male’ child. The doing away often includes either being ‘given’ in marriage to another toddler (or in some cases, to men twice or even thrice their age) or worse, slaying her even before she can take one free breath. Of late, technology seems to have facilitated this diabolical slaughter even before the birth of the child in the form of female foeticide. The term female foeticide means killing the female foetus in the mother’s womb. 24th September is celebrated as the International Girl Child Day.
When we celebrate progress, we know that it has been too slow. More than 50 yrs of independence, it is still a women’s face we see when we speak of poverty, of HIV/AIDS, of violent conflicts and social upheaval. Let us assert once again that each women and girl is a unique and at the same time valuable human being, who is entitled to equal opportunities and universally adopted human rights, no matter where she is born or where she lives.
According to the Indian government, 10 million girls have been killed, either before or immediately after birth, by their parents over the past couple of decades despite a law that the government enacted that bans scan tests forecasting the sex of the baby in the womb. The United Nations says an estimated 2,000 unborn girls are illegally aborted every day in India. Now is the time to energise efforts to put gender equality at the top of international peace and development agenda.
However, doubts are bound to be raised on the effectiveness of the legislation as the issue mainly relates to people’s attitudes and preferences. The desire for a son, for instance, is deep-rooted in both rural and urban areas. The problem of dowry and the choice of a son for social security have also contributed to the malady. However, these have led to serious gender discrimination and adverse demographic implications in many states. For instance, according to an estimate, parts of Haryana have witnessed a dip in sex ratio — 618 girls for 1,000 boys. On the whole, while the national sex ratio is 933 per 1,000 men, in Haryana, Punjab, Chandigarh and Delhi, it is below 900. This shows that the menace has reached alarming proportions even in urban areas.
Amongst the states, the northern state of Punjab tops the list in number of female foeticide cases reported over the last three years with Rajasthan coming next. The country as a whole reported 294 cases during the same period. According to figures released by the National Crime Records Bureau in Punjab, 81 cases were registered for female foeticide while for Rajasthan the corresponding number was 51. Madhya Pradesh registered 21 cases, Haryana 18 and Chattisgarh 24.In Rajasthan, the number of cases registered has shown a steady decline since the last three years with 25, 16 and 10 cases being registered in 2006, 2007 and 2008. The National Capital saw seven cases registered in 2006, four in 2007 and two in 2008. A medical expert in India says that an estimated 80,000 women die from legal abortions on an annual basis.
BACKDROP: STATUS OF WOMEN
The adverse sex ratio has been linked with the low status of women in Indian communities, both Hindu and Muslim. The status of women in a society can be determined by their education, health, economic role, presence in the professions and management, and decision-making power within the family. It is deeply influenced by the beliefs and values of society. Islam permits polygamy and gives women fewer rights than men. Among Hindus, preference for the male child is likewise deeply enshrined in belief and practice. The Ramayana and the Manusmriti (the Laws of Manu) represent the ideal woman as obedient and submissive, and always needing the care of a male: first father, then husband, then son.
The birth of a son is regarded as essential in Hinduism and many prayers and lavish offerings are made in temples in the hope of having a male child. Modern medical technology is used in the service of this religion-driven devaluing of women and girls. Women and Developments in Reproductive Technology Abortion was legalized in India in 1971 to strengthen humanitarian values (pregnancy can be aborted if it is a result of sexual assault, contraceptive failure, if the baby would be severely handicapped, or if the mother is incapable of bearing a healthy child). Amniocentesis was introduced in 1975 to detect foetal abnormalities but it soon began to be used for determining the sex of the baby. Ultrasound scanning, being a non-invasive technique, quickly gained popularity and is now available in some of the most remote rural areas. Both techniques are now being used for sex determination with the intention of abortion if the foetus turns out to be female. These methods do not involve manipulation of genetic material to select the sex of a baby.
The Census 2001 figures reveal that the child sex ration for the age group of
0-6 years is comparatively lower in:- a) Punjab (798),
b) Haryana (819),
c) Chandigarh (845),
d) Delhi (868),
e) Gujarat (883),
f) Himachal Pradesh (896)
g) Rajasthan (909)
as compared to the national average pf 927 girls per thousand boys. Though there is no established causal relationship between adverse sex ratio and spurt in cases of sex related crimes, this could be one of the factors resulting in some forms of violence against women.
TECHNOLOGICAL ADVANCEMENTS ENHANCING THE MENACE
Some of the worst gender ratios, indicating gross violation of women’s rights, are found in South and East Asian countries such as India and China. The determination of the sex of the foetus by ultrasound scanning, amniocentesis, and in vitro fertilization has aggravated this situation. No moral or ethical principle supports such a procedure for gender identification. The situation is further worsened by a lack of awareness of women’s rights and by the indifferent attitude of governments and medical professionals. Recent preconception gender selection (PGS), however, includes flow cytometry, preimplantation gender determination of the embryo, and in vitro fertilization to ensure the birth of a baby of the desired sex without undergoing abortion.
Also, the introduction of a United States patented sex determination kit called ‘Baby Gender Mentor Home DNA Gender Testing Kit’ have raised fears about back-door foetus determination tests. The kit, priced at $275 was popularly known as ‘Jantar Mantar’ in rural Punjab. It had a built-in-equipment for collecting and sending a finger-prick blood sample to a Massachusetts laboratory from where confidential results were sent via e-mail within 48 hours. Technology is advancing but, alas, the thinking is still barbaric.
LEGAL PROVISIONS COMBATING IT
1) INDIAN PENAL CODE
Sections 312-316 of the Indian Penal Code (IPC) deals with miscarriage and death of an unborn child and depending on the severity and intention with which the crime is committed, the penalties range from seven years to life imprisonment for fourteen years and fine.
Section 312. Causing miscarriage
Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both, and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Explanation:- A woman who causes herself to miscarry, is within the meaning of this section.
Section 313. Causing miscarriage without woman’s consent
Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with [imprisonment for life] or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 314. Death caused by act done with intent to cause miscarriage-
Whoever, with intent to cause the miscarriage of woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term may extend to ten years, and shall also be liable to fine.
If act done without woman’s consent:- And if the act is done without the consent of the woman, shall be punished either with [imprisonment for life] or with the punishment above mentioned. Explanation: – It is not essential to this offence that the offender should know that the act is likely to cause death.
Section 315. Act done with intent to prevent child being born alive or to cause it to die after birth
Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
Section 316. Causing death of quick unborn child by act amounting to culpable homicide
Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
A, knowing that he is likely to cause the death of a pregnant woman, does an act which, if it caused the death of the woman, would amount to culpable homicide. The woman is injured, but does not die, but the death of an unborn quick child with which she is pregnant is thereby caused. A is guilty of the offence defined in this section.
Until 1970 the provisions contained in the Indian Penal Code (IPC) governed the law on abortion. The Indian Penal Code 1860 permitted ‘legal abortions’ did without criminal intent and in good faith for the express purpose of saving the life of the mother. Liberalisation of abortion laws was also advocated as one of the measures of population control.
2) THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971
The Medical Termination of Pregnancy Act was passed in July 1971, which came into force in April 1972. This law was conceived as a tool to let the pregnant women decide on the number and frequency of children. It further gave them the right to decide on having or not having the child. However, this good intentioned step was being used to force women to abort the female child. In order to do away with lacunae inherent in previous legislation, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act had to be passed in 1994, which came into force in January 1996. The Act prohibited determination of sex of the foetus and stated punishment for the violation of the provisions. It also provided for mandatory registration of genetic counselling centres, clinics, hospitals, nursing homes, etc.
Thus both these laws were meant to protect the childbearing function of the woman and legitimise the purpose for which pre-natal tests and abortions could be carried out. However, in practice we find that these provisions have been misused and are proving against the interest of the females.
3) THE PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) ACT, 1994 To combat the practice of female foeticide in the country through misuse of technology, done surreptitiously with the active connivance of the service providers and the persons seeking such service, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act was enacted on September 20, 1994 by the Government of India. The Act was amended in 2003 to improve regulation of technology capable of sex selection and to arrest the decline in the child sex ratio as revealed by the Census 2001 and with effect from 14.02.2003, due to the amendments, the Act is known as the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
The main purpose of enacting the PC&PNDT (prohibition of Sex Selection)
Act, 1994 has been to: i) Ban the use of sex selection techniques before or after conception
ii) Prevent the misuse of pre-natal diagnostic techniques for sex selective abortions
iii) Regulate such techniques Stringent punishments have been prescribed under the Act for using pre-conception and pre-natal diagnostic techniques to illegally determine the sex of the foetus.
Authorities Empowered and pertinent as well as important provisions # The appropriate Authorities at the District and State levels are empowered to search, seize and seal the machines, equipments and records of the violators. # The sale of certain diagnostic equipment is restricted only to the bodies registered under the Act. # The Government has also taken various steps to support implementation of the legislation, including through constitution of a National Inspection & Monitoring Committee (NIMC), Central and State # Supervisory Boards, capacity building of implementing agencies, including the judiciary and public prosecutors and community awareness generation through PRIs and community health workers such as # Auxiliary Nursing Midwives (ANMs) and Accredited Social Health Activists (ASHAs). # The Act has a central and state level Supervisory Board, an Appropriate Authority, and supporting Advisory Committee. The function of the Supervisory Board is to oversee, monitor, and make amendments to the provisions of the Act. Appropriate Authority provides registration, and conducts the administrative work involved in inspection, investigation, and the penalizing of defaulters.
The Advisory # Committee provides expert and technical support to the Appropriate Authority. # Sec. 6 of the said Act, clearly says that determination of sex is prohibited. # Sec. 22 prohibits advertisements relating to pre-natal determination of sex and punishment for contravention. # Sec. 23 (3) of the said Act, lays down that any person who seeks the aid of a genetic counseling centre, a genetic laboratory or a genetic clinic, or of a medical geneticist, gynecologist or registered medical practitioner, for applying pre-natal diagnostic techniques on any pregnant women (unless there is evidence she was compelled to undergo such diagnostic techniques) for purposes other than those specified, shall be punishable with imprisonment for a term that may extend to 3 years and with a fine which may extend to Rs.10,000 and any subsequent conviction may involve imprisonment which may extend to 5 years and a fine of up to Rs.50,000. # Before conducting any prenatal diagnostic procedure, the medical practitioner must obtain a written consent from the pregnant woman in a local language that she understands. # Prenatal tests may be performed in various specified circumstances, including risk of chromosomal abnormalities in the case of women over 35, and genetic diseases evident in the family history of the couple.
4) THE CONSTITUTION OF INDIA
Section 312 of the Indian Penal Code read with the Medical termination of Pregnancy act, 1971 where all the restrictions imposed therein, including the time limit of 20 weeks, other than the ones to ensure good medical conditions, infringe the right to abortion and the right to health, which emanate from right to life as guaranteed by Article 21 of the Constitution. Freedom from interference in one’s privacy and family life is protected by Article 12 of the Universal Declaration of Human Rights, Article 17 of the Civil and Political Rights Covenant, Article 11 of the American Convention, and Article 8(1) of the European Convention. Right to abortion is a species of right to privacy, which is again proclaimed a continuance of the right to life under Article 21.
A SURVEY OF THE IMPLEMENTATION OF THE ACT
A survey was conducted to assess the implementation of the 1994 Act in South Delhi and to make recommendations for its improvement. This involved examining the organizational structure, observing 26 clinics, and distributing a questionnaire to patients. The results showed up serious failures in management and implementation, lack of commitment and motivation, widespread corruption, and little knowledge in clinics of the provisions of the Act. The presence of individuals outside the medical profession, in particular those involved with human rights, would have helped to prevent fraternity bias – an unwillingness to bring medical colleagues to account.
The survey of patient attitudes showed that only 40% of male patients and 30% of female patients were aware of the prohibition of sex determination. While 90% purported to agree with the principle of the Act, they nevertheless maintained that a male child was important for the strengthening of the family.
GOVERNMENT ACTION-PLAN AND POLICY FRAMEWORK
National Plan of Action exclusively for the girl child (1991-2000) was formulated in 1992 for the “Survival, Protection and Development of the Girl Children”. The Plan recognized the rights of the girl child to equal opportunity, to be free from hunger, illiteracy, ignorance and exploitation. Towards ensuring survival of the girl child, the objectives are to:
v Prevent cases of female foeticide and infanticide and ban the practice of amniocentesis for sex determination;
v End gender disparity in infant mortality rate; eliminate gender disparities in feeding practices, expand nutritional interventions to reduce severe malnourishment by half and provide supplementary nutrition to adolescent girls in need;
v Reduce deaths due to diarrhoea by 50% among girl children under 5 years and ensure immunization against all forms of serious illnesses; and
v Provide safe drinking water and ensure access to fodder and drinking water nearer home.
Balika Samriddhi Yojana
The launching of the Balika Samriddhi Yojana in 1997 is a major initiative of Government to raise the overall status of the girl child. It intends to change family and community attitudes towards her and her mother. Under this scheme about 25 lakh girl children born every year in families below the poverty line are to be benefited. The first component of the scheme, which has already been launched, is to provide Rs.500/ – as a post-delivery grant to the mother of the girl child as a symbolic gift from Government. The other components proposed under the scheme are provision of annual scholarships to the beneficiaries when they go to school and assistance for taking upon income generating activity when they attain the age of maturity.
Besides having specific legislation and policy proclamations to deal with this menace, the precipitating factors such as dowry, poverty, and woman’s economic dependence etc., leading to the problem of foeticide and infanticide have been addressed by enacting various legislations as: Ø Dowry Prohibition Act, 1961(Amended in 1986);
Ø Hindu Marriage Act, 1955;
Ø Hindu Adoption and Maintenance Act, 1956;
Ø Immoral Traffic Prevention Act, 1986
Ø Equal Remuneration Act, 1976.
It is sincerely HOPED that such measures would equip women to exercise their rights.The Ministry of State for Health and Family Welfare is also embarking on a massive national level awareness and sensitisation programme on a sustained basis to check female foeticide. Non-government organisations, media, entertainment industry, spiritual leaders, medical fraternity and youth will be involved in a big way as agents of social change in the campaign.
Deterrence (enforcing the law), counselling (community education) peer pressure (holding last rites after abortions to unnerve the family and doctors) and incentives for informers can be used as effective tools to bring about an appreciable change in attitude.
The number of female children is coming down alarmingly and the present male-female ratio stands at 1000:800 in some northern states including Haryana, Punjab and South Delhi.
JUDICIAL ACTIVISM AND RESPONSE
Our honourable judiciary in India had observed 2007 as the Awareness Year of Female Foeticide and dealt in a strict manner with those responsible for this crime. The former Chief Justice Y.K. Sabharwal had declared while delivering his presidential address at a state-level seminar on ‘Eradication of Female Foeticide’, jointly organised by the Punjab Department of Health and Family Welfare and Punjab Legal Services Authority that law can play an important role in checking this menace of female foeticide.
CEHAT v Union of India
In the landmark case of CEHAT, MASUM and Dr Sabu George v Union of India and others – in light of the alarming decline in sex ratios in the country to the disadvantage of women, this petition was filed seeking directions from the Supreme Court for the implementation of the Pre-Natal Diagnostic Techniques Act which regulates the provision of pre-natal diagnostic technology. In this case the Court took on the unique role of actually monitoring the implementation of the law and issuing several beneficial directives over the course of 3 years during which the case was proceeding in court. This petition put the issue of sex selection and sex selective abortion on the national agenda and as a consequence there have been heightened activities on this issue by government and non-governmental agencies alike.
In the words of Supreme Court of India, It is unfortunate that for one reason or the other, the practice of female infanticide still prevails despite the fact that gentle touch of a daughter and her voice has soothing effect on the parents. One of the reasons may be the marriage problems faced by the parents compelled with the dowry demand by the so-called educated and/or rich persons who are well placed in the society. The traditional system of female infanticide where by female baby was done away with after birth by poisoning or letting her choke on husk continues in a different form by taking advantage of advance medical techniques.
Unfortunately, developed medical science is misused to get rid of a girl child before birth. Knowing fully well that it is immoral and unethical as well as it may amount to an offence, foetus of a girl child is aborted by qualified and unqualified doctors or compounders. This has affected overall sex ratio in various The Supreme Court of India also directed all the State Governments/Union Territory administrations to create public awareness against the practice of pre-natal determination of sex and female foeticide through advertisements in the print and electronic media by hoardings and other appropriate means. The Governments to furnish quarterly returns to the central supervisory board giving a report on the implementation of PNDT Act, 1994.
In the case of Kharak Singh Vs. State of U.P. and others , the Supreme Court has certainly recognized that a person has complete rights of control over his body organs and his ‘person’ under Article 21. It can also said to be including the complete right of a woman over her reproductive organs. In the United States of America, the Supreme Court upheld the right to privacy and ended the ban on birth control back in 1965, in the case of Griswold v. Connecticut . Eight years later, the Supreme Court ruled the right to privacy included abortions in the landmark case of Roe v. Wade . In 1976, Planned Parenthood of Central Missouri v. Danforth, ruled that requiring consent by the husband and the consent from a parent if a person was under 18 was unconstitutional. This case supported a woman’s control over her own body and reproductive system. William Brennan, J. stated: “If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwanted governmental intrusion into matters so fundamentally affecting a person as the decision to bear or beget a child.”
Vijay Sharma and Another Vs Union of India
The couple, Vijay and Kirti Sharma, based in the commercial metropolis Mumbai, challenged the validity of the Pre Conception and Pre Natal Diagnostic Tests Act (PCPNDT) Act, a 2001 Indian legislation which bans sex determination. But the judges said in a verdict pronounced on Friday that sex selection would be as good as female foeticide.
Qualified Private Medical Practitioners and Hospitals Association Vs State of Kerala It was declared that laboratories and clinics which do not conduct pre-natal diagnostic, test using ultrasonography will not come within the purview of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 and a direction to the respondents not to insist for registration of all ultrasound scanning centres irrespective of the fact as to whether they are conducting ultrasonography, under the Act, 1994. a similar view was taken in the case of Malpani Infertility Clinic Pvt. Ltd. and Others Vs Appropriate Authority, PNDT Act and Others.
Dr. Varsha Gautam W/O Dr. Rajesh Gautam vs State Of U.P
A pregnant woman wanted to get her abortion done because there was a girl child in her womb. She approached the petitioner Dr. Varsha Gautam at her hospital, who agreed to perform the abortion although it was an offence to perform such an operation and even determination of the sex by doctors using ultrasound technique was illegal. The petitioner is said to have engaged in getting abortions done in her hospital in collusion with doctors, who determined the sex of the foetus by conducting ultrasound tests. Her clinic was not even registered under the Act and she was not entitled to conduct pre-natal diagnostic procedures therein.
Vinod Soni and Another Vs Union of India
By this petition, the petitioners who are married couple seek to challenge the constitutional validity of Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act of 1994 (hereinafter referred to Sex Selection Act of 1994). The petition contains basically two challenges to the enactment. First, it violates Article 14 of the Constitution and second, that it violates Article 21 of the Constitution of India. It was held that Right to bring into existence a life in future with a choice to determine the sex of that life cannot in itself to be a right. Reliance is placed on a Supreme Court Judgment and two earlier decisions whereby the Supreme Court has explained Article 21 and the rights bestowed thereby include right to Food, clothing, decent environment, and even protection of cultural heritage. These rights even if further expanded to the extremes of the possible elasticity of the provisions of Article 21 cannot include right to selection of sex whether preconception or post conception thus, not unconstitutional.
In order to strengthen the monitoring of female foeticide and girl child survival, the Registrar General of India, has made it mandatory for all the Chief Registrars of Births and Deaths to closely monitor the sex ratio at birth every month.
In India, the available legislation for prevention of sex determination needs strict implementation, alongside the launching of programmes aimed at altering attitudes, including those prevalent in the medical profession. More generally, demographers warn that in the next twenty years there will be a shortage of brides in the marriage market mainly because of the adverse juvenile sex ratio, combined with an overall decline in fertility. While fertility is declining more rapidly in urban and educated families, nevertheless the preference for male children remains strong. For these families, modern medical technologies are within easy reach. Thus selective abortion and sex selection are becoming more common.
The National Plan of Action for the South Asian Association for Regional Cooperation (SAARC) Decade of the Girl Child (1991-2000) seeks to ensure the equality of status for the girl child by laying down specific goals for her dignified survival and development without discrimination. The codified law world over considers human life as sacred and specific legal provisions have been devised to protect the life of the born and the un-born.
However, the objective of the law gets defeated due to lacunae in the law and lack of proper implementation. Even though the law is a powerful instrument of change yet law alone cannot root out this social problem. The girls are devalued not only because of the
economic considerations but also because of socio-cultural factors, such as, the belief that son extends the lineage, enlarges the family tree, provides protection safety and security to the family and is necessary for salvation as he alone can light the funeral pyre and perform other death related rites and rituals. Evidence indicates that the problem of female foeticide is more prevalent in orthodox families. It is, therefore, essential that these socio-cultural factors be tackled by changing the thought process through awareness generation, mass appeal and social action. In addition to this all concerned i.e. the religious and social leaders, voluntary organisations, women’s groups, socially responsible media, the doctors; the Medical Council/Association (by enforcing medical ethics and penalties on deviant doctors) and the law enforcement personnel should work in a coordinated way.
To conclude I would like to say that awareness amongst people from all walks of life and enlightening them with education are two foolproof tools of combating this ever pervading menace which has plagued our country and rendered the sex ratio to fall drastically. ‘Female foeticide’ is also depicted in a serial named ‘Na Aana Is Desh Meri Lado’ aired on Colors channel over the week days to which a notice has been issued by the National Commission of Women of being violative of the Indecent Representation of Women (Prohibition) Act, 1986 as well as Cable T.V. Networks (Regulation) Act, 1995