Ahmad

* Associate Professor of Law, Sultan Sharif Ali Islamic University, Brunei Darussalam,Adjunct Associate Professor of Law, Multimedia University, Malaysia; M.A., LL.B., LL.M.(Luck. India), LL.M. (Strathclyde, U.K.), LL.D. (India); Email: [email protected].

___________________________________

Female Feticide in India

Nehaluddin Ahmad, M.A., LL.B., LL.M., LL.M., LL.D.*

ABSTRACT: Women are murdered all over the world. But in Indiaa most brutal form of killing females takes place regularly, evenbefore they have the opportunity to be born. Female feticide theselective abortion of female fetuses is killing upwards of onemillion females in India annually with far-ranging and tragicconsequences. In some areas, the sex ratio of females to maleshas dropped to less than 800:1,000. Females not only faceinequality in this culture, they are even denied the right to beborn. Why do so many families selectively abort baby daughters?In a word: economics. Aborting female fetuses is both practicaland socially acceptable in India.

Female feticide is driven by many factors, but primarily by theprospect of having to pay a dowry to the future bridegroom of adaughter. While sons offer security to their families in old ageand can perform the rites for the souls of deceased parents andancestors, daughters are perceived as a social and economicburden. Prenatal sex detection technologies have been misused,allowing the selective abortions of female offspring to proliferate.Legally, however, female feticide is a penal offence.

Although female infanticide has long been committed inIndia, feticide is a relatively new practice, emerging concurrentlywith the advent of technological advancements in prenatal sexdetermination on a large scale in the 1990s. While abortion islegal in India, it is a crime to abort a pregnancy solely because thefetus is female. Strict laws and penalties are in place for violators.These laws, however, have not stemmed the tide of this abhorrentpractice. This article will discuss the socio-legal conundrumfemale feticide presents, as well as the consequences of havingtoo few women in Indian society.

____________________

According to the United Nations, there are, on average, 105 females toevery 100 males in most countries of the world. But this pattern, tellingly,does not hold in four countries where female infanticide and feticide are still

Issues in Law & M edicine, Volume 26, Number 1, 201014

1 Celia de Lamo, Reports From a Village in India Where Newborn Girls Are Killed toStop Them Being a Financial Burden on Their Families, LONDON TIMES (U.K.), Mar. 12, 1997,at 11; see also, UNESCO Institute for Statistics - UIS/FS/08/01.

2 Fred Arnold et al., Son Preference, the Family-Building Process and Child Mortalityin India, 52 POPULATION STUDIES 301 (Nov. 1998).

3 MANU: Laws of Manu (Manu Dharma Shastras) written between 200 B.C.E. and 200C.E.; its 2,685 verses codify cosmogony, four ashramas, government, domestic affairs, casteand morality. For dating of composition between the second century B.C.E. and third centuryC.E., see FLOOD, AN INTRODUCTION TO HINDUISM 56 (1996). For dating of Manu Smriti infinal form to the second century C.E., see JOHN KEAY, INDIA: A HISTORY 103 (2000). Fordating as completed some time between 200 B.C.E. and 100 C.E., see THOMAS J. HOPKINS, THEHINDU RELIGIOUS TRADITION 74 (1971). For probable origination during the second or thirdcenturies C.E., see HERMANN KULKE & DIETMAR ROTHERMUND, A HISTORY OF INDIA 85 (1986).For the text as preserved dated to around the 1st century B.C.E., see http://www.britannica.com/EBchecked/topic/363055/Manu-smrti (accessed on Apr. 11, 2010).

4 Sharma Chetan & Rita Patel, The Practice of Sex Selective Abortion Technology andits Impact on Female Feticide in India, JAIN DIVYA, May 2005, at 286.

practiced: India, where there are 93 women to every 100 men; Bangladeshand Afghanistan, where the ratio is 94 to 100; and China, where there areonly 88 women to every 100 men.1 The Indian census has always reflecteda gender imbalance. Female feticide the selective abortion of femalefetuses and infanticide are largely responsible for this disparity. Thismarked gap between males and females has nationwide implications. Thisarticle will explore: (1) the history of Indias gender preference; (2) thebackground of female feticide; (3) how female feticide is accomplished; (4)the prevalence of female feticide; (5) viewpoints on female feticide; (6)consequences of female feticide; (7) legislative responses; (8) consequencesfor offenders; (9) the difficulty of enforcement; and (10) judicial responses.

Historical Background

Indian society, like many societies the world over, is patrilineal,patriarchal, and patrilocal. For centuries, India has not welcomed the birthof daughters. Women in Indian society were either heralded as goddesses,a rarity, or objectified. Daughters were thus never welcome. Even theblessing given by Rishis (priests) illustrates this painful reality: Ashta PutraSaubhagyavati Bhava Be a Mother of eight sons. The blessing wasnever for four sons and four daughters. Why?

Tradition holds that sons are necessary in order to kindle the funeralpyre of their late parents and to assist in the soul salvation.2 According toManu,3 a man has to be reborn as a man to attain moksha (redemption). Aman cannot attain moksha unless he has a son to light his funeral pyre. Also,a woman who gives birth only to daughters may be left in the 11th year ofmarriage. Obviously, this demonstrates the gender bias prevalent in thismale-dominated society.4

Fem ale Feticide in India 15

5 L. Visaria, Deficit of Women in India: Magnitude, Trends, Regional Variations andDeterminants, 15 NATL MED. J. INDIA 19 (2002).

6 R. MUTHULAKSHMI, FEMALE INFANTICIDE, ITS CAUSES AND SOLUTIONS 92 (Discovery Pub.House, New Delhi, 1997).

7 Id. at 92-93.8 RITA PATEL, THE PRACTICE OF SEX SELECTIVE ABORTION IN INDIA, MAY YOU BE THE

MOTHER OF A HUNDRED SONS 67 (1996).9 R. J. RUMMEL, DEATH BY GOVERNMENT 65-66 (1986).

Moreover, daughters come with a high price to be paid later in the formof dowries, and they have little utilitarian value growing up. The unfortunatepractice of dowries and the historical view of women as undesirable secondclass citizens have lead to the wholesale slaughter of female infants, and nowfetuses.5 The burden of taking a woman into the family continues toaccount for the high dowry rates in India which, in turn, have led to anepidemic of female feticide.6 But before feticide became a widespreadpractice, infanticide was the method of choice for families desirous ofrelieving themselves of the burden of an unwanted daughter.7

The Background of Female Feticide

InfanticideSex selective abortion is a fairly recent phenomenon, however, it should

be seen as a subset of the crime of infanticide, which has also targeted thepeople who are physically or mentally disabled, as well as infant males andinfant females on a gender-selective basis.

In the late 18th century, infanticide was initially documented by Britishofficials who recorded it in their diaries during their travels to India. Thescope of the problem of female infanticide became apparent in 1871, in thetaking of Indias first census survey. At that time, it was noted that there wasa significantly abnormal sex ratio of 940 women to 1000 men. Thisprompted the British to pass The Infanticide Act in 1871, making thepractice of murdering infants illegal. But the Infanticide Act was difficult toenforce in a country where most births took place at home and whereregistration of births was not common.8 This inhuman practice continuestoday.

Some would dispute the assigning of infanticide or female infanticideto the category of genocide, or as here, gendercide. Nonetheless,governments and other actors can be just as guilty of mass killing by neglector tacit encouragement, as by direct murder.9 R. J. Rummel buttresses thisview, referring to infanticide:

In India, for example, because their beliefs and the rigid caste system,young girls were murdered as a matter of course. When dem ographicstatistics were first collected in the nineteenth century, it was discovered


10 Id. at 66-67.11 Id. at 67.12 Malvica Karlekar, The Girl Child in India: Does She Have Any Right? 15 CAN.

WOMANS STUD. 55-56 (1995).13 Id. at 56-57.14 Kishor, May God Give Sons to All: Gender and Child Mortality in India, 58 AM. SOC.

REV. 262 (Apr. 1993).

that in some villages, no girl babies were found at all; in a total of thirtyothers, there were 343 boys to 54 girls. . . . in Bombay, the number of girlsalive in 1834 was 603.10

Rummel adds:

Instances of infanticide . . . are usually singular events; they do not happenen masse. But the accumulation of such officially sanctioned or demandedmurders comprises, in effect, serial massacre. Since such practices were sopervasive in some cultures, I suspect that the death toll from infanticidemust exceed that from mass sacrifice and perhaps even outright massmurder.11

No matter that female infanticide, or its progeny, feticide, is not committeden masse, it is a tragedy of epic proportions with far-ranging consequencesfor Indian society.

What is Female Feticide?Female feticide is a practice that involves the detection and abortion of

female foetus due to the preference for male babies and from the low valueassociated with the birth of females.12 This could be done at the behest ofthe mother, father, or under family pressure. Karlekar points out that:

[T]hose women who undergo sex determination tests and abort onknowing that the foetus is female are actively taking a decision againstequality and the right to life for girls. In many cases, of course, the womenare not independent agents but merely victims of a dom inant familyideology based on preference for male children.13

Why is Female Feticide so Widely Practiced?It is quite simply more expensive to raise a female than a male, as the

female child needs to be provided a dowry upon marriage. It is widely knownthat increased dowry payments led to the further decline of the status ofwomen.14 The brides family, according to Indian convention, bears themajor cost of the wedding. The amount of dowry given is determined by thegrooms caste, his earnings potential, and the distinct needs of his family.Therefore, the wealth of a bride or her family is irrelevant in the determina-tion of the dowry amount. The female child, particularly in families of lower


15 SONALDE DESAI, GENDER INEQUALITIES AND DEMOGRAPHIC BEHAVIOR: INDIA 166(Population Council, Inc., N.Y., 1994).

16 Zeng Yi et al., Causes and Implications of the Recent Increase in the Reported SexRatio at Birth in China, 19 POPULATION & DEV. REV. 297 (June 1993).

17 Duttas Subhabrate, Child Sex Ratio The Grim Picture, in SOCIAL WELFARE 17-18,23-24 (Nov. 2001).

18 Kishor, supra note 14, at 263-64.

economic stature, is thus an economic drain on her family. The need for adowry for a female child exerts considerable economic pressure on familiesto use any means possible to avoid having girls, who are seen as a liability.Sonalda Desai has reported that there are posters in Bombay advertisingsex-determination tests (which lead to selective abortions of female fetuses)that read: It is better to pay 500 Rs now than 500,000 Rs (in dowry)later.15

The following factors are often advanced as other justifications for thepractice of feticide:

Social Security: Consequent upon the advances in medical science, thetermination of unwanted children, especially female fetuses throughabortion, has become common in families to satisfy their preference forsons. Studies indicate that there is a preference for sons in South Korea,Pakistan, India, Turkey, Mexico, Taiwan and China.16 In India, theexcuse offered is that families prefer boys to girls because boys providesecurity to aged parents.

Dowry: A boy is an asset who fetches a dowry. Financial Dependence of Females on Husband or In-laws: In India,

socio-economic background has been the villain behind female feticide.Certain communities want to get rid of female children because ofdehumanizing poverty, unemployment, superstition, and illiteracy.17

Cultural Factors: The bias against females in India is related to the factthat Sons are called upon to provide the income; they are the ones whodo most of the work in the fields. In this way sons are looked to as a typeof insurance. The concept of Vanshodharak requires a male child toperform last rites in Hindus. With this perspective, it becomes clearerthat the high value given to males decreases the value given tofemales.18

The problem is so acute that Indian Prime Minister Manmohan Singh,speaking of female feticide, said It is very sad that in our society, the girlchild is being killed even before being born. This is a shame on our society.Addressing the nation from the Red Fort on the 63rd Independence Day, headded: As soon as possible we have to remove this blot. Our progress will


19 P.M. Manmohan Singhs Independence Day speech, New Delhi Female Foeticide aShame for India, PRESS TRUST OF INDIA, Aug. 15, 2009, available at http://www.ndtv.com/news/india/female_foeticide_a_shame_for_india_pm.php (accessed on Apr. 10, 2010).

20 Amniocentesis, also referred to as amniotic fluid test or AFT, is a medical procedureused in parental diagnosis of chromosomal abnormalities and fetal infections.

21 Chorionic villus sampling or CVS, also known as chorionic villus biopsy, is a prenataltest that can detect genetic and chromosomal abnormalities of an unborn baby.

22 A test in which sound waves are used to examine internal structures. Duringpregnancy it can be used to examine the fetus. See V. PATEL, INDIAN WOMEN 16-17 (Bombay,1996).

23 Id. at 17.24 R. Jeffery & P. Jeffery, Female Infanticide and Amniocentesis, 19 SOC. SCI. & MED.

1207 (1984).25 Z. Imam, India Bans Female Feticide, 308 BRIT. MED. J. 428 (1994).26 Id. at 428-29.27 V. G. Julie, Will Indias Ban on Prenatal Sex Determination Slow Abortion of Girls?

HINDUISM TODAY (Am. ed.), Apr., 1996, at 7.

be incomplete till women become equal partners in the growth.19 Despitethe pleas of the Prime Minister, female feticide is widely practiced.

How is Female Feticide Practiced?

India is the heartland of sex-selective abortion. This detection of the sexof the baby is done through three methods: (a) amniocentesis20; (b) chronicvillus sampling21; and (c) ultra-sonography.22

Amniocentesis is a procedure in which a small amount of amniotic fluid,which contains fetal cells, is extracted from the amniotic sac surrounding adeveloping fetus. It was introduced in 1974 to ascertain birth defects inutero. This procedure, and chronic villus sampling, although invasive, werequickly appropriated by medical entrepreneurs in the business of sexdetermination.23 Today, however, less invasive ultrasound machines, whichproduce pictures of fetuses inside the womb, have made the process of sexdetermination even simpler for those desirous of determining the sex of thechild so it can be aborted before birth.24

Due to the use of amniocentesis and ultrasound, sex determination hasalso become a lucrative business25 and sex-selective abortions increased.26

With the advent of these technological advancements, families have an easyalternative to the more horrific method of birthing, then killing, femaleinfants; simply have a sonogram, determine the sex of the child, and abortthe undesired female fetus before birth. Sex selective abortions are a way toavoid the birth of daughters, with less moral compunction.27 There iscertainly no denying that murdering a living, breathing, crying infant inones arms would be more difficult than aborting a fetus. Thus, ultrasoundand other technologies spawned the avoid a daughter industry in India by


28 R. P. Ravindra, Campaign Against Sex Determination Tests, 8 LOKAYAN BULL. 31(1990).

29 Tim Dyson, The Preliminary Demography of the 2001 Census of India, 27POPULATION & DEV. REV. 341 (2001).

30BBC, Jan. 9, 2006, available at http://news.bbc.co.uk/2/hi/south_asia/4592890.stm(accessed on Apr. 10, 2010) (Their research was based on a national survey of 1.1 millionhouseholds in 1998).

31 John-Thor Dahlburg, Where Killing Baby Girls is No Big Sin, TORONTO STAR , Feb.28, 1994, at 13.

32 Julie, supra note 27. 33 Renu Dube, Reena Dube & Rashmi Bhatnagar, Women Without Choice: Female

Infanticide and the Rhetoric of Overpopulation in Postcolonial India, WOMENS STUD. Q.,Spr./Sum. 1999, at 73.

34 Sarah Boseley, Health Ed., 10 Million Girl Foetuses Aborted in India, GUARDIAN, Jan.9, 2006; see also http://www.guardian.co.uk/world/2006/jan/09/india.sarahboseley (ac-cessed on Apr. 10, 2010).

finding a niche market where those services were in demand, i.e., familieswanting to avoid having daughters and also avoid infanticide.28

Prevalence of Female Feticide

There has been an alarming rise in the number of female fetusesaborted over the past several years. While it is impossible to know exactlyhow many female fetuses have been aborted, there are myriad estimatesavailable in the literature. For example, according to recent medicalresearch, over 10 million female fetuses may have been destroyed due toabortion and sex selection in the past twenty years in India.29 Researchersin India and Canada for the Lancet journal said prenatal selection andselective abortion was causing the loss of 500,000 girls a year.30 Dahlburgnoted that [i]n Jaipur, capital of the western state of Rajasthan, prenatalsex determination tests result in an estimated 3,500 abortions of femalefoetuses annually, according to a medical college study.31 The IndianAssociation for Womens Studies reported in 1998 that 100,000 femalefetuses are killed every year in India. In 1996, the national publication,Hinduism Today, put the annual figure at 50,000 female fetuses,32 and astudy revealed that 13,000 female fetuses were aborted annually between1978 and 1983, following the introduction of amniocentesis as a sexdeterminant test.33 No matter which numbers are relied on, one thing is notin dispute: despite Indias ban on gender selection and selective abortion in1994, with up to 10 million female fetuses allegedly terminated in India inthe last 20 years, there are now 36 million more men than women in India.34


35 OFFICE OF THE REGISTRAR GENERAL AND CENSUS COMMISSIONER, CENSUS 2001, GOVTOF INDIA (hereinafter CENSUS 2001").

36 Klasen Stephan & Wink Claudia, A Turning Point in Gender Bias in Mortality? AnUpdate on the Number of Missing Women, 28 POPULATION & DEV. REV. 285 (2002).

37 Pande Rohini & Malhotra Anju, Son Preference and Daughter Neglect in India, WhatHappens to Living Girls? ICRW (2006), available at www.icrw.org/docs/2006.

38 L. VISARIA, SEX-SELECTIVE ABORTION IN THE STATES OF GUJARAT AND HARYANA: SOMEEMPIRICAL EVIDENCE 64-83 (Abortion Assessment Project of India: Qualitative Studies, HealthWatch Trust, Jaipur and CEHAT, Mumbai 2004); see also CENSUS 2001, supra note 35.

39 VISARIA, supra note 38.

The following is the sex ratio chart from 1901 to 2001.

Year - Sex Ratio:Females per 1,000 Males35

1901- 9721911- 9641921- 9551931- 9501941- 9451951- 9461961- 9411971- 9301981- 9341991- 9272001- 933

Feticide in India remains unreported; the sex ratio for females hasdropped from 972 to 933 per 1000 males according to the chart shownabove. Female feticide is a well-known fact. For instance, the 2001 Censusfigures point to a sex ratio for 0-6 age group of around 927 females per 1000males (see Table 1 below).36 The sex ratio gap at birth further widened by2002-2003, according to some rough estimates from civil registration ofbirths, to 882 females per 1000 males. Assuming an average of 900 femalesper 1000 males, this demonstrates that almost 10 percent of females aremissing.37 That would amount to the elimination of almost one millionfemale children every year.

The sex ratio disparity is worse in some states such as Punjab, Haryana,Rajasthan, Gujarat, Delhi and Maharashtra.38 Table 1 points to an alarmingsituation. Just imagine a state like Haryana where the sex ratio at birth isaround 860 per thousand clearly almost thirteen percent of female fetusesare selectively aborted. The Punjab situation is equally threatening. Gujaratis especially dire with a sex ratio of 808 females per thousand males in urbanareas.39


The extent of female feticide, like infanticide, calls for its classificationas a veritable gendercide.

Table 1Sex Ratio of Females to 1,000 Males, 2001 Census*

State Rural Urban

Punjab 866 789

Haryana 884 809

Rjasthan 909 886

Delhi 917 866

Uttar Pradesh 928 880

Bihar 949 924

West Bengal 955 948

Orissa 949 927

Madhya Pradesh 960 941

Gujarat 908 827

Maharashtra 934 908

Andhra Pradesh 962 958

Karnataka 951 939

Kerala 958 951

Tamil Nadu 951 951

India 934 905

*Sex Ratio in 0-6 age group - 2001 Census.

Viewpoints on Female Feticide

The elimination of females before birth is often justified on twogrounds. First, it reduces the population; and, second, poor parents will besaved from the expense which they would have to incur in the marriage oftheir daughters. So the abortion of female fetuses is considered to be asolution for two major problems: (1) a burgeoning population, which strains


40 Monia Das Gupta & P. N. Mari Bhat, Fertility Decline and Increased Manifestationof Sex Bias in India, 51 POPULATION STUD. 307 (1997).

41 Id.42 Kusum, The Use of Pre-natal Diagnostic Techniques for Sex Selection: The Indian

Scene, 7 BIOETHICS 149 (1993); see also J. Venkatesan, Enforce Ban on Sex Determination,HINDUSTAN TIMES, May 6, 2003, at 7.

43 Dutta Subhabrate, Child Sex Ratio-The Grim Picture, SOC. WELFARE, Nov. 2001, at17-18, 23-24.

44 Pre-natal Diagnostics Techniques Act, Regulation and Prevention of Misuse (1994).

the public coffers; and (2) the dowry, which stresses family finances.40 Buthow far do these justifications go?

India was the first country to adopt family planning as an officialprogram to reduce the birthrate. But the population of the country is stillgrowing, despite female feticide. One of the reasons for the growth ofpopulation in India is the desire for a son. Today, the sex-determinationtests have provided an easy way to know whether or not a woman will beara son. Each time a woman gets pregnant she can have the sex of the fetusdetermined and get it aborted if it happens to be a female child.41 Abortionwas punishable under the Indian Penal Code, but it was legalized with thepassing of the 1971 Medical Termination of Pregnancy Act. This Act alongwith its revised rules was envisaged as a milestone in the modernization ofIndian society through laws. Medical doctors were against the ban onamniocentesis claiming it will lead to its underground practice.42

None of the arguments given in favor of the continuance of sexdetermination are persuasive. While it is true that societies need to controlpopulation overgrowth, and that people should have every right to plan theirfamilies, it does not follow that families should be permitted to selectivelyabort females to save money in years to come on dowries. The sex determi-nation test is used to eliminate female fetuses by abortion, rather thancontrol family size.43 In India, the preference is always for a male child. It isthe female child who is unwanted. If female feticide continues at its currentpace, it will render all the women and child health programs a nullity.44

There simply will not be enough women to maintain an adequate nationalbirth rate.

Consequences of Female Feticide

Beyond the tragedy of the destruction of one million fetuses annually,the consequences are potentially disastrous for the society as a whole. Thenations discourse on female feticide is so crass, that it is either totallyignored, or the discussion is only in a context of how would men find mateswith a shortage of women. Indeed it is ironic that the reason that is providedas the strongest reason for stopping this genocide is that men will not beable to get married.


45 T. Kanitkar, The Sex Ratio in India: A Topic of Speculation and Research, 39 J. FAM.WELFARE 19 (1993).

46 Pande Mrinal, A Price for Life, HINDU SUNDAY MAG., Feb. 3, 2002, at 10.47 Aditya Ghosh, HINDUSTAN TIMES, Nov. 24, 2008, at 17.48 Jonathan Manthorpe, China Battles Slave Trading in Women: Female Infanticide

Fuels a Brisk Trade in Wives, VANCOUVER SUN, Jan. 11, 1999, at 11.49 Tina Rosenberg, The Daughter Deficit, N.Y. TIMES MAG., Aug. 23, 2009, at 23:[I]n India and China the situation is dire: in those countries, more than 1.5 million fewergirls are born each year than demographics would predict, and more girls die before theyturn 5 than would be expected. (In China in 2007, there were 17.3 million births and amillion missing girls.) Millions more grow up stunted, physically and intellectually, becausethey are denied the health care and the education that their brothers receive.50 Mrinal, supra note 46.

Let us consider some of the possible implications of even ten percent ofmen not being able to find wives, leading single lives, and not producingoffspring. The decreased marriage rate might lead to depression among men,increased suicide among men, and emotional emptiness among men.45 Ofcourse, there could be increased violence against women rape, sexualharassment, increase in immorality, prostitution, and spread of diseasessuch as AIDS and tuberculosis. More generally, demographers warn that inthe next twenty years there will be a shortage of brides in the marriagemarket mainly because of the adverse juvenile sex ratio, combined with anoverall decline in fertility.46

With female feticide continuing at its current pace, ten percent of themale population will have to remain unmarried, not experiencing the joys ofintimacy, family life, or raising children. With ten percent of men leadingemotionally vacuous, depressed lives, they may become societal nuisances,possibly turning to crime. With a shrinking pool of marriageable females,the Hindustan Times recently reported that young girls from Assam andWest Bengal are being kidnaped and sold into marriage in neighboringHaryana.47

The impact on society should not be underestimated. According toChinese estimates, by 2020 there are likely to be 40 million unmarriedyoung men, called guang guan or bare branches, in China, because ofthe adverse sex ratio.48 Whether in China or India, a society with a largenumber of unmarried young men is prone to particular dangers.49 Morewomen are likely to be kidnaped and exploited as sex workers or sold formarriages. The sharp rise in sex crimes in Delhi has been attributed to theunequal sex ratio.50

Legislative Responses

Female feticide is a gross violation of many human rights. The first isthe right to life of the unborn child. The second right violated is the womansright over her own body. Often, the decision not to have the child is made by


51 M. Kaur, Female Foeticide A Sociological Perspective, 39 J. FAM. WELFARE 40(1993).

52 M. L. Solapurkar & R. N. Sangam, Has the MTP Act in India Proven Beneficial? 38J. FAM. WELFARE 46 (1992).

53 Id. at 48-49.54 S. V. Subramanian & S. Selvaraj, Social Analysis of Sex Imbalance in India: Before

and After the Implementation of the Pre-Natal Diagnostic Techniques (PNDT) Act, 63 J.EPIDEMIOLOGY & COMMUNITY HEALTH 245 (2009).

the man of the family, with the opinion of the mother rarely considered. TheIndian legislature, in its effort to balance the legitimate needs of women toabort fetuses when necessary, against the abuse of prenatal screening testsand abortions for sex selective termination of viable female fetuses, hasenacted several laws designed to thwart gender-specific feticide.51

Until 1970, the Indian Penal Code (IPC) governed abortion. The IndianPenal Code 1860 permitted legal abortions done without criminal intentand in good faith for the express purpose of saving the life of the mother.Liberalization of abortion laws was also advocated as one of the measures ofpopulation control. The Medical Termination of Pregnancy Act (MTP) waspassed in July 1971, and went into effect in April 1972. This law wasconceived as a tool to allow a pregnant woman to decide on the number andfrequency of children she produced. In essence, it gave women the freedomto choose to discontinue a pregnancy, within certain parameters.52

Specifically, the Indian government permits abortions to be performedif there is:

Danger to the life of the mother if the pregnancy continues to birth; Danger to the child by, or at risk of, being born handicapped; or If the woman has conceived the child as a consequence of rape.

Women are also permitted to abort a fetus for family planning purposes(i.e. if they wish to keep their family small). However, abortion has to bedone during a specific gestational period when it is difficult to identify thesex of the fetus. If the abortion is to be carried out after 16 - 18 weeks ofpregnancy, for any medical reason, the opinion of two doctors is required.53

However, this well-intentioned law which was conceptualized to allowwomen the right to abort began being used to force women to abort femalefetuses. Unlike abortion, female feticide is usually done beyond the legalgestational age (i.e., when the fetus is much older and developed), and isdone only because the fetus is female.

In order to do away with the lacunae inherent in previous legislation,the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse)Act (PNDT or the Act) was passed in 1994,54 and went into effect in January1996. The Act prohibits the determination of the sex of the fetus. It alsoprovides for mandatory registration of genetic counseling centers, clinics,


55 Sabu George, Female Foeticide in India, 13 HEALTH ACTION 23 (2000).56 Subramanian & Selvaraj, supra note 54, at 249.57 J. F. Burns, India Fights Abortion of Female Fetuses, N.Y. TIMES, Aug. 27, 1994,at 5.58 Id. at 5.

hospitals, nursing homes, etc. The PNDT Act only focuses on regulation andcontrol of techniques of prenatal sex determination, not access to abortion.That is, the Act does not concern itself with selective abortion of femalefetuses as such, but rather with medical procedures to detect the sex of thefetus which can lead to feticide.55 However, taken together, the MTP andPNDT were meant to afford women the right to choose abortion for medicalreasons, or for legitimate family planning purposes, and to prevent prenataltests and abortions from being used for the purpose of female feticide.56

However, in practice, these laws are often misused or ignored to thesignificant determent of females mothers and their unborn daughters inIndian society.57 What are the consequences for those who breach the law?

Consequences for Offenders

Female feticide is a punishable offence in India. The offenders (bothdoctor and parents) may be imprisoned or fined or both. The primary lawfor prosecuting persons who are engaging in sex selective abortion is thePre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act,1994. The PNDT Act was renamed as the Pre-Conception and Pre-NatalDiagnostic Techniques (Prohibition of Sex Selection) Act.

The Act:

Prohibits misuse and advertisement of prenatal diagnostic techniquesfor the determination of the sex of fetus, leading to female feticide;

Permits and regulates the use of prenatal diagnostic techniques fordetection of specific genetic abnormalities or disorders and use of suchtechniques only under certain conditions and only by the registeredinstitutions;

Provides for punishment for violation of the provisions given in the Act;and

Provides for fines of about $320 and up to three years in prison foradvertising gender determination tests or working in a testing center.58

A complaint must be made to the appropriate authority with notice ofnot less than 30 days for proper action and with the intention to make acomplaint to the court. Only women over the age of 35 or those who havecertificates of medical necessity are permitted to have prenatal tests; womenwho take the tests simply to determine the gender of the fetus can be


59 Subramanian & Selvaraj, supra note 54, at 250.60 Id.61 Editorial, HINDUSTAN TIMES (Natl Daily), Dec. 11, 2007, at 16.

prosecuted and fined or imprisoned.59 One of the criticisms of the law is thatit does not provide for the registration of ultrasound machines, many ofwhich are put into vans and driven from village to village.60

Apart from the Act, the following sections from the Indian Penal Code,1860 are also relevant and can be used to prosecute offenders when:

Death is caused by a person (Section 299 and Section 300). A pregnant woman is caused to miscarry the unborn baby (Section 312). An act done with intent to prevent child being born alive or to cause it

to die after birth (Section 315). A quick death of the unborn child is caused (Section 316). A child under 12 years of age is exposed and abandoned (Section 317). The birth of child is concealed by secretly disposing her/his body

(Section 318).

The punishment for these offences extends from two years up to lifeimprisonment, a fine, or both.

Enforcement: The Reality

Despite these statutory provisions, due to lack of proper enforcement,female feticide is still widely practiced and very few cases are prosecuted.The irony of the situation is that in the 14 years since India enacted thePre-Natal Diagnostic Technologies (PNDT) Act, with countless thousandsof females lives terminated in utero for convenience sake, not a single personwas convicted until very recently. In April 2006, two people were convicted,fined and given five years imprisonment. According to Indias HealthMinister Ambumoni Ramadoss statement to Parliament in 2007, only 23cases have been registered under the Act thus far.61 In December 2007, theHealth Minister told the Upper House (Rajya Sabha) that the governmentintends to make life imprisonment a penalty for violations of the Pre-natalDiagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. Inaddition, he acknowledged that the conviction rate was so low becausefeticide is a clandestine practice.

The ban on government hospitals and clinics, on the central and statelevels, making use of prenatal sex determination for the purpose of abortiona penal offence led to the commercialization of the technology. Privateclinics providing sex determination tests through amniocentesis andultrasound multiplied rapidly and widely. Sex selection tests can be done on


62 G. Singh & S. Jain, Opinions of Men and Women Regarding Amniocentesis, 39 J.FAM. WELFARE 13 (1993).

63 Id. at 18.64 Gautam Chikermane, To Save the Girl Child Invest, INDIAN EXPRESS (Natl Daily),

Mar. 30, 2006, at 13.65 J. P. Singh, Social and Cultural Aspects of Gender Inequality and Discrimination in

India, 30 ASIAN PROFILE 163 (2002).66 J. P. Singh, Dowry in India: A Search for New Social Identity, 58 EASTERN

ANTHROPOLOGIST 199-220 (2005).67 Centre for Enquiry into Health and Allied Themes [CEHAT] v. Union of India. AIR

2001 SC 2007.

a fetus at almost every one of the 30,000 clinics, if not all of them.62

Advertisements still herald the economic benefits of aborting female fetuses;the relatively low cost of the testing can be more than offset by saving thefuture cost of a dowry. The portable ultrasound machine has facilitated useby doctors going from house to house in towns and villages.63 In such anenvironment it is very difficult to enforce a law seeking to control informa-tion that travels through informal channels and services that can operatesecretly. Implementation of the law has thus been slow and ineffective.Another reason for the limited effectiveness of the law includes lack ofpolitical will. Experience has shown that, in general, the role of legislationin curtailing a social practice can be limited.64 Thus, despite havingprotections in place since 1996 under the PNDT Act, the practice of sexselection continues unfettered.

Reports continue to reveal that members of the female sex areundesirable in India. Baby girls are neglected, malnourished or even killedat birth. Anecdotal and other evidence suggest that sex selecting clinics andthe abortion of female fetuses are still wide-spread. Although tougherlegislation has made it possible for the authorities to raid prenatal clinics tocheck records and look for evidence of illegal sex selection, officials admitthat it is difficult to find evidence.65 Prenatal scans to check for abnormali-ties are legal and it can be impossible to prove that a doctor has in fact usedone to reveal a babys sex. Thus, enforcement efforts are thwarted at everyjuncture. It seems it is in everyones interest to continue this practice: thelucrative prenatal test industry, families struggling under the weight offuture dowries, and doctors desirous of serving their patients for their ownprofit.66 Despite the societal acquiescence, the judiciary has taken on thecause of saving female fetuses.

Judicial Responses

Public interest litigation was filed in the Supreme Court of India byconcerned health activists.67 In response to the petition, the Court issuednotices to the central and state governments to file replies to the central


68 Surya Deva, Public Interest Litigation in India: A Critical Review, 28 CIVIL JUST. Q.19 (2009).

69 Pamela Philipose, Women Versus Girls, INDIAN EXPRESS (Natl Daily), Apr. 5, 2006,at 5.

government. Appropriate authorities were further directed to send quarterlyreports to the central supervisory board about public awareness against thepractice of prenatal sex determination. The Supreme Court directed stategovernments to take further steps to enforce the law, and the Secretary ofthe Department of Family Welfare was directed to file an affidavit indicatingthe status of actions taken. The Supreme Court further directed ninecompanies to supply the information of the machines sold to various clinicsin the last five years. Details of about 11,200 machines from all thesecompanies were fed into a common database. Addresses received from themanufacturers were sent to concerned states to launch prosecutions againstthose bodies using ultrasound machines that had filed to register under theAct.68

Today there are an estimated 25,000 ultrasound machines in thecountry, of which 15,000 have been registered. The Supreme Court directedthat the ultrasound machines/scanners be sealed and seized if they werebeing used without registration. Three associations: The Indian MedicalAssociation (IMA); Indian Radiologist Association (IRA), and the Federationof Obstetricians and Gynecologists Societies of India (FOGSI) were asked tofurnish details of members using these machines. Since the Supreme Courtdirective 99 cases were registered, and in 232 cases ultrasound machines,other equipment and records were seized. State governments have commu-nicated to the central government of India in writing that according toofficial reports received, they are satisfied that sex determination servicesare no longer being provided in their respective states.69

However, even after the Indian Supreme Court orders, all that hasoccurred is that clinics are now registered, but yet not regulated. It is widelybelieved that while these services are no longer openly available, theirclandestine availability and utilization continues all over the country. Theobservation of the National Inspection and Monitoring Commissionconfirms this situation and endorses the need for stricter enforcement of thelaw.

Conclusion

India is experiencing female genocide. The only reason that it does notcause shock or outrage is because it is accomplished through abortion (ascompared with infanticide), which is legal in India. The permissive abortionculture has meant that India does not, by and large, view the selectiveelimination of the female population as a massive human rights violation.


70 Gender Laws Often Go Against Women, TIMES NEWS NETWORK, Jul. 24, 2006, at 7.71 Nandita Haksar, Dominance, Suppression and the Law, in WOMEN AND THE LAW,

CONTEMPORARY PROBLEMS 89 (Lotoka Sarkar & B. Sivaramayya, eds., Vikas Pub. House, NewDelhi, 1994).

On the contrary, female feticide is an extreme manifestation of violenceagainst women, and a horrendous violation of their human rights. Unfortu-nately, as Kerala High Court Chief Justice K.K. Usha stated: gender-specificlaws like the MTP Act 1971 which aims at empowering women have beengrossly misused for female feticide.70 Failure to enforce the law whenviolations occur has added to the growing problem of female feticide. First,it must be realized that a law is just the beginning of a struggle to curb asocially accepted practice like female feticide. And, as Haksar points out,legal reform cannot be divorced from the more fundamental struggle totransform social values.71 Moreover, it is necessary to understand that whileprogress in science and technology is mandatory for the progress of a nation,what matters most is its beneficial application. Female feticide is a reflectionof what happens when technologies are misused to serve tragic ends. Theonly long term solution is to change attitudes and end the archaic practiceof dowry which perpetuates the notion that females are an economic burdenon families. Society as a whole should ensure that each girl is safe, secure,educated, economically, and emotionally independent. Worsening sex ratiosare bound to have a devastating effect on countries like India. The time hascome to declare a crusade against female feticide, both on an individual anda collective level.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.

Ahmad

Documents

Transcript of Ahmad