An Analysis of Female Foeticide in India

An Analysis of Female Foeticide in India India is a country of incredible ironies. It is a land where people worship myriad forms of female Shakti in quest of wealth, wisdom and power. In this country it is a common sight to see thousands of couples making arduous journeys every year to shrines of goddesses in order to be blessed with a child. But strangely enough, in this country, a couple is said to be blessed only when it has a male child; for a girl is never considered a blessing in our society. Her birth seems to cast a pall of gloom over the entire family. Her birth is not rejoiced, instead the entire family moans. Gender biasness had been the typical attitude of the patriarchal Indian society since time immemorial. The Vedas contained passages which emphasized the necessity of son. May you be the mother of a hundred sons have always been a popular blessing by elders to young brides. It is indeed an undeniable fact that despite differences in social and intellectual status, almost all the sections of the society do stand on the same platform so far as their craving for male child is concerned. On the other hand, daughters are unwanted, they are considered burdensome and people who do not dare to carry this burden for long dispose them off as quickly as possible, for in Incredible India, killing of the girl child is no sin. Initially the girl child was put to death brutally, being throttled, poisoned or drowned in a bucket of water right after her birth. These had been the common practices followed particularly in the rural areas. However the evil of killing the girl child no longer remained confined to the rural people but equally attracted the urban population too who, despite being educated, seem to show a strong preference for the male child and the subsequent avoidance of the female child. The rapid advancement of science and technology proved a boon for these people as this had made the diabolic slaughter of the female child much easier and more sophisticated than before. The benefits of science, as usual, has again been misused by mankind and today by dint of the pre-natal sex determination tests, the female fetuses are selectively aborted. Hence we can say that in the modern era another shameful chapter has been added to the saga of oppression and exploitation meted out to women, in the form of Female Foeticide. It is indeed heartening that in recent times when India boasts of its scientific achievements and discoveries, when the pages of textbooks are flooded with slogans of Shining India, women in India are not only facing inequality and inequity in every sphere but they are denied even the right to be born. What is Female Foeticide? As a medical term, foeticide is destruction of a fetus  [1]. The term Female Foeticide may be defined as the elimination of a female foetus at any stage of pregnancy, after determining its sex. It is also defined as killing of female foetus through induced abortion.  [2]  Hence Female Foeticide refers to the process of aborting a foetus if, after undergoing sex determination tests or pre-natal diagnostics tests, it is revealed that the foetus is female. In other words, it implies the barbarous act of killing the girl child in the womb itself, unseen and unheard, only for the fact that she is female. The misuse of medical science has facilitated the rapid growth of this heinous crime in the society today. A number of medical procedures are carried out to determine the sex of the unborn child such as: Amniocentesis Ultrasonography Foetoscopy Chorionic villi biopsy Placental tissue sampling etc. Out of these the most commonly used sex-determination test is amniocentesis. It was meant to be used as an aid to detect any abnormality in the unborn child. But over the years, especially since 1978, amniocentesis has become a widely used test by doctors to determine the sex of the foetus between 14-18 weeks of pregnancy. The ultrasound technique has also gained huge popularity. The trans-vaginal sonography has enabled to determine the sex of a foetus within 13-14 weeks of pregnancy and through abdominal ultrasound, sex determination is possible within 14-16 weeks. Whatever be the method employed, the reality is that these methods have made sex determination quite easier and cheaper, thereby encouraging the growth of Female Foeticide at a high rate. Reasons for High Rate of Female Foeticide in India: It has been widely accepted nowadays that girls are emotionally more attached to parents, more responsible in society and by no means less competent than boys. However withstanding all this, the typical orthodox Indian attitude accompanied with several socio-economic-cultural factors pervading in the society has always upheld the need of male child and disfavored the birth of girl child in the family. This has immensely contributed to the rampant growth of female foeticide in the country, thus making India one of the worst nations in the world plagued with skewed sex ratio. The most prominent factors encouraging Female Foeticide in India are listed below: i) Religious factors: The Hindu religion lays great stress on the birth of a son. In a Hindu patriarchal society it is the son who continues the family lineage or Vansh. According to Manu, 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.  [3]  Such gender biased customs and practices in the traditional Hindu society has over-emphasized the birth of sons and discouraged the birth of girl child in the family, thus paving the way for Female Foeticide. ii) Evil of Dowry: Dowry is essentially one of the factors which has encouraged the practice of Female Foeticide to a great extent. Parents find it a better option to avoid the female fetuses itself than to pay exorbitant rates in the form of dowry while marrying off their daughters. Hence in order to escape from dowry people desperately go for sex selection tests and eliminate the female foetus. To most of the couples, especially the middle-class ones, it appears that paying Rs. 500 at present is better than to pay Rs.5,00,000 in future. Conversely, the boy is viewed an asset to fetch fabulous dowry for the parents. Hence boys are naturally preferred to girls. iii) Financial Dependence of Females on Husband or In laws: In India, the socio-economic background has also been the villain behind the tragic female foeticide. Certain communities want to get rid of female child compelled by the circumstances of dehumanizing poverty, unemployment, superstition and illiteracy. iv) Secondary status of women in society: It is generally expected that sons would carry the family lineage forward, provide security and care to parents especially in old age, enhance family wealth and property and perform the last rites and rituals. Whereas daughters would go to anothers house draining out all the family wealth. Moreover they always need to be protected, defended and taken care of , thus imposing an extra burden over the family. Such conservative attitude of the Indian society which essentially regards women a burden is one of the most potent factors which has induced strong son preference and hence encouraged Female Foeticide. All this factors clearly point out that the ever existing gender biasness in our country favoring the male and the stereotype notion of women as burden is the primary cause acting behind the shocking statistics of Female Foeticide in India. Genesis and Growth of Female Foeticide in India: The Chilling Reality The devil of Female Foeticide first crept into the Indian society through the corridors of the northern states which engaged in gross misuse of amniocentesis. Amniocentesis first started in India in 1974 as a part of a sample survey conducted at the All India Institute of Medial Sciences (AIIMS), New Delhi, to detect foetal abnormalities. These tests were later stopped by the Indian Council of Medical Research (ICMR), but their value had leaked out by then and 1979 saw the first sex determination clinic opening in Amritsar, Punjab. Even though women organizations across the country tried their best to put a stop to this new menace, but were helpless because of the Medical Termination of Pregnancy Act 1971 which permitted the amniocentesis test as it claimed to be used for detection of foetal abnormalities,. According to the MTP Act, if any abnormality is detected between 12 to 18 weeks of gestational period in the foetus, an abortion can be legally carried out up to 20 weeks of pregn ancy.  [4]  Owing to this provision, amniocentesis could not be banned and its gross misuse continued. Although responding to the situation certain legal steps had been initiated by the government, however, the evil of Female Foeticide could not be curbed out but rather with the passage of time it has become all the more sdangerous. Today the issue of Female Foeticide in India is no longer only an issue of violation of womens rights only but rather it has become a chronic disease. It has become so widespread all over the country today that day by day we are actually inching closer to a nation without women. Weird it may sound, but the shocking statistics revealing the distorted sex ratio in our country compel us to accept this truth. According to the United Nations an estimated 2,000 unborn girls are illegally aborted every day in India. Another glaring example is the demographic profile of India which clearly indicates the profoundness and wide spread prevalence of female foeticide. India is a country of 102.7 crore population, out of which 53.1 crores is of males and 49.6 crores is of females, clearly indicating a deficit of 3.5 crore women. The sex ratio is 933 women /1000 men and child sex ratio is 927 girls for 1000 boys  [5]. The intensity of this heinous crime in our country is revealed by the following figures: Sex Ratio (females per thousand males), India: 1901-2001 Year Sex-Ratio 1901 972 1911 964 1921 955 1931 950 1941 945 1951 946 1961 941 1971 930 1981 934 1991 929 2001 933 Thus as per these statistics reveal, the overall sex ratio in India is 933 females for every 1000 males, showing a marginal increase of 4 points from the 1991 census of 929. However, this is a very sorry state indeed and we are doing much worse than over a hundred years ago when the sex ratio was 972 in 1901, 946 in 1951 till the 933 today. The Trend of sex ratios in the age group of 0-6 years all over India Years Sex Ratio 1961 976 1971 964 1981 962 1991 945 2001 933 The above table clarifies that more and more baby girls have either been aborted or killed as infants since 1961 and that this trend continues strong even today. The intensity of sex ratio imbalance in the 0-6 age group in some states of India is indeed horrifying. In Punjab the sex ratio is (793 F: 1000 M), in Haryana it is (820 F: 1000 M), in Himachal Pradesh it is (897 F: 1000 M), in Gujarat it is (878 F: 1000 M). Recent government figures show that in South Delhi, the sex ratio is 762 females per 1000 males, while in Mumbais Borivalli its 728 females per 1000 males. In Jaipur itself, an average of 3500 instances of female foeticide is supposed to be carried per year. These figures undoubtedly point out that the country, is witnessing today the systematic extermination of the female child on a large scale. All most the whole of the country is under the grip of this menace. The following table estimates the intensity of Female Foeticide in the various states of India: States Showing High Foeticide Percentage State Female Foeticide ( percent to All India) Maharashtra 45.1 Madhya Pradesh 15.4 Haryana 14.3 Rajasthan 9.9 Andhra Pradesh 8.8 From the above table we find that ironically the developed and the richest states of India are the toppers in the list where female foeticide is extensive. According to UNICEF study done over 3 years (1994-1996), there are only five states in India where no case of foeticide or infanticide have been reported which are Sikkim, Nagaland, Meghalaya, Mizoram and Jammu Kashmir. An improvement in the child sex ratio whatsoever has only been marked in one state, Kerala, and two Union Territories, Lakshwadeep and Pondicherry. The reports published by various agencies also throw considerable light on this grim reality. The UN reports reveal that between 35 to 40 million girls missing from the Indian population. According to a study conducted recently in India, the first systematic study on female foeticide by an Indo-Canadian team, 10 million female foetuses have been aborted in India, What all the more shocking is according to its report every year, about 50,000 unborn girls-one in every 25-are aborted in India.  [7]   The UNPFA report on India Towards Population and Development Goals published in 1997 also expressed its concern over the issue. It is estimated that 48 million women were missing from Indias population. The report states If the sex ratio of 1036 females per 1000 males observed in some states of Kerala in 1991 had prevailed in the whole country, the number of would be 455 million instead of the 407 million (in the 1991 census). Thus, there is a case of between 32 to 48 million missing females in the Indian society as of 1991 that needs to be explained. It further stated that, The 1991 census is only indicative of this disturbing trend when elsewhere in the world women outnumber men by 3 to 5 percent. There are 95 to 97 males to 100 females in Europe; the ratio is even less, 88 males to 100 females, in Russia, mainly due to causalities of World War 2.  [8]   According to the UNICEF report, 40 to 50 million girls have gone missing from Indian population since 1901 as a result of systematic gender discrimination in India.  [9]   Thus in consideration of all these facts it is quite evident that Female Foeticide has taken a disastrous shape in India. It is the distressing reality of Shining India that the mass depletion of the fairer sex is being carried on boldly without any hesitation, without any fear. Laws in India to Check Female Foeticide: In India in order to stop the indiscriminate abortion of female fetuses several laws have been enacted. The essential provisions relating to the prevention of Female Foeticide are laid down in: Indian Penal Code 1860 The Medical Termination of Pregnancy Act,1971 The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 a) Indian Penal Code 1860: Under the IPC adequate provisions have been made for the protection of mother and unborn child. Under Section 312  [10], 313  [11]  and 314  [12], the IPC provides to save the women from miscarriage. Miscarriage means the expulsion of the child or foetus from the mothers womb at any period of pregnancy before the term of gestation is completed. Though the term miscarriage is not defined in the I.P.C in its popular sense, it is synonymous with abortion, and consists in the explosion of the embryo or foetus, i.e. the immature product of conception. The stage at which pregnancy has advanced and the form which the ovum or embryo may have assumed are immaterial.  [13]  Any act intended, not in good faith to cause miscarriage is punishable under IPC. The punishment for this offence is further enhanced if the woman is quick with child. The term Quickening refers to the peculiar sensations experienced by a woman about the fourth or fifth month of pregna ncy. The symptoms are popularly ascribed to the first perception of the movement of the foetus. According to Section 312 if any person causes a miscarriage of woman, he shall be punished with the imprisonment up to three years or fine or with both, and if the woman be quick with child, he shall be punished with imprisonment up to seven years and fine also. Under this section a woman who causes her miscarriage or gives consent to miscarry is also liable for punishment. Section 313 provides the punishment for life or ten years and fine, who causes the miscarriages of a woman without her consent. In the case of Tulsi Devi v. State of U.P  [14], the accused women kicked a pregnant woman in her abdomen resulting in miscarriage. She was held to be convicted under Section 313. Section 314 further provides that if the act directed to cause miscarriage results in death of the pregnant woman, the offender is punishable with imprisonment of ten years as well as with fine. However the IPC permits abortion  [15]  for saving the life of the pregnant women. Section 312 allows the termination of pregnancy in good faith for saving the life of the pregnant woman. The term good faith, however, is not a constant term but it is varied from case to case. The General Clauses Act 1897  [16]  defines good faith as, A thing shall be deemed to be done in good faith where it is, in fact done honestly. IPC  [17]  defines good faith as Nothing is said to be done or believed in good faith which is done or believed without due care and attention. In addition to these, Section 315  [18]  and 316  [19]  provides for protection against injuries to the unborn child. Section 315 lays down that any person doing an act without good faith with the intention of preventing a child to be born or to cause it die after birth is punishable with imprisonment of ten tears or fine or both. Section 316 provides if a person causes the death of a quick unborn child by an act amounting to culpable homicide he shall be punishable with imprisonment for ten years as well as be fined. Like the Indian law, protection to the unborn child has also been recognized and guaranteed in other countries too. Such as in the United States thirty-five states currently recognize the unborn child or fetus as a homicide victim. 25 of those states apply this principle throughout the period of pre-natal development  [20]  while 10 establish protection at some later stage, which varies from state to state. For example, the Supreme Court of California treats the killing of a fetus as homicide, but does not treat the killing of an embryo (prior to approximately eight weeks) as homicide  [21]. The Unborn Victims of Violence Act enacted in 2004 recognizes the child in utero as a member of the species homo sapiens, at any stage of development, who is carried in the womb. This child in utero is recognized as a legal victim if he or she is injured or killed during the commission of any of 68 existing federal crimes of violence and offered legal remedy as per the state laws. However, the federal and state courts have consistently held that these laws do not apply to apply to legal induced abortions and do not contradict the U.S. Supreme Courts rulings on abortion.  [22]  But unlawful abortion however may be considered foeticide, even if the pregnant woman consents to the abortion.  [23]. Similarly the English law also gives protection to the unborn child. It recognizes Child Destruction as a crime. Child destruction refers to the crime of killing a child capable of being born alive, before it has a separate existence  [24]. The Crimes Act 1958 defined capable of being born alive as 28 weeks gestation, later reduced to 24 weeks. b) The Medical Termination Of Pregnancy Act, 1971: The MTP Act is another attempt to prevent high rate of female foeticide in India. This Act aims in preventing large number of unsafe abortions. The Act clearly states that an abortion can be termed legal only when- Termination is done by a medical practitioner approved by the Act Termination is done at a place approved under the Act Termination is done for conditions and within the gestation prescribed by the Act Other requirements of the rules regulations are complied with. It permits termination of pregnancy only when Continuation of pregnancy constitutes risk to the life or grave injury to the physical or mental health of woman or there is a substantial risk of physical or mental abnormalities in the fetus as to render it seriously handicapped or if pregnancy caused by rape (presumed grave injury to mental health) or due to contraceptive failure in married couple (presumed grave injury to mental health).However termination of pregnancy is possible Upto 20 weeks of gestation period only With the consent of the woman. If the woman is below 18 years or is mentally ill, then with consent of a guardian With the opinion of a registered medical practitioner, formed in good faith, under certain circumstances With the opinion of two RMPs  [25]  required for termination of pregnancy between 12 and 20 weeks. Also such abortion is to be conducted either at a hospital established or maintained by Government or at a place approved for the purpose of this Act by a District-level Committee constituted by the government with the CMHO as Chairperson. Thus this Act on one hand positively aims to improve the maternal health scenario by upholding the validity of legally induced abortions and negatively, on the other hand, seeks to reduce illegal abortions. Also it is to be noted that such strict principles laid down by the Act for the regulation of abortion is a bold attempt by the Indian Legislature to check Female Foeticide. The Act seeks to put an end to the menace of illegal abortions carried out primarily for the elimination of female fetuses. c) The Pre-Natal Diagnostic Techniques (Regulations and Prevention of Misuse) Act 1994: The PNDT Act is the outcome of the realization of the Parliament that a central piece of legislation had become mandatory for stopping the abuse of pre natal diagnostic techniques. When it was quite evident from the mushroom growth of clinics all over that the pre-natal diagnostic techniques were not restricted for the purpose of detection of genetic disorders or chromosomal abnormalities or congenital abnormalities or sex-linked diseases only but was actually leading to female foeticide, for the first time in India, in 1986, a social action group in Mumbai namely the Forum Against Sex Determination and Sex Pre-selection (FASDSP), initiated a campaign. On its pressure the Maharashtra government enacted the Maharashtra Regulation of Pre-Natal Diagnostic Techniques Act 1988, which was the first anti sex determination drive in the country. This was followed by a similar Act being introduced in Punjab in May 1994. However both these Acts were repealed by the enactment of a central legislation, i.e. the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994, which came into effect from 01.01.1996, banning sex determination tests all over the country. This Act was renamed in 2002 as the Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act) which came to effect from 14.02.2003. The PCPNDT Act chiefly provides for: a) Prohibition of sex selection, before and after conception. b) Regulation of prenatal diagnostic techniques (e.g. aminocentesis and ultrasonography) for detection of genetic abnormalities, by restricting their use to registered institutions. The Act allows the use of these techniques only at a registered institutions .The Act allows the use of these techniques only at a registered place for a specified purpose and by a qualified person, registered for this purpose. c) Prevention of misuse of such techniques for sex selection before or after conception. d) Prohibition of advertisement of any technique for sex selection as well as sex determination. e) Prohibition on sale of ultrasound machines to persons not registered under this Act. f) Punishment for violations of the Act. This Act requires that all diagnostic centres must be registered with the authorities. They are required to maintain detailed records of all pregnant women undergoing scans there. These records must include the referring doctor, medical and other details of the woman, reason for doing the scan, and signatures of the doctors. These records must be submitted to the authorities periodically. For implementing the Act, appropriate authorities are appointed at the state level and work with the director of health services, a member of a womens organization and an officer of the law. At the district level, the appropriate authority is the medical officer or civil surgeon. Advisory committees consisting of doctors, social workers and people with legal training assist appropriate authorities. Supervisory boards at the state and central levels look at the implementation of the Act. The appropriate authority may cancel the diagnostic centres registration, make independent investigations, take co mplaints to court, and take appropriate legal action. It may demand documentation, search premises, and seal and seize material. Courts may respond only to complaints from the appropriate authority. Under the Act the following people can be charged-everyone running the diagnostic unit for sex selection, mediators who refer pregnant women to the test, and relatives of the pregnant woman. The pregnant woman is considered innocent under the Act, unless proved guilty. So far as penalties under the Act are concerned, it consists of imprisonment for up to three years and a fine of up to Rs. 10,000. This is increased to five years and Rs. 100,000 for subsequent offences. Doctors charged with the offence will be reported to the State Medical Council, which can take the further necessary action including suspension. These are the three chief legislative measures initiated in India for combating the evil of Female Foeticide. Judicial Response to Female Foeticide in India: The Indian Judiciary has from time to time come up with ingenious ways to provide protection to the fairer sex and this essentially includes the group of unborn girls too. The Supreme Court in the case of Centre for Enquiry into Health and Allied Themes (CEHAT) and others v. Union of India  [26]  which was filed under section 32 of the Constitution of India under PIL issued directions to Central Supervisory Board, all State Governments and Union Territories for proper and effective implementation of the PCPNDT Act which mandates that sex selection by any person, by any means, before or after conception, is prohibited. Since 2001, the judiciary has been closely monitoring the implementation of its various orders passed regarding the ban on the use of ultrasound scanners for conducting such tests. Subsequently, it had sought status reports from all states and Union Territories. The Supreme Court also directed 9 companies to supply the information of the machines sold to various cl inics in the last 5 years.. 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. The Supreme Court also asked three associations viz., The Indian Medical Association [IMA], Indian Radiologist Association [IRA], and the Federation of Obstetricians and Gynecologists Societies of India [FOGSI] to furnish details of members using these machines.  [27]  It is to be noted that since the Supreme Court had issued such directives, 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, owing to the efforts of the Judiciary. The Supreme Court in the case of Mr. V ijay Sharma and Mrs. Kirti Sharma vs. Union of India  [28]  the Supreme Court has recently quoted that foeticide of girl child is a sin; such tendency offends dignity of women. It undermines their importance. It violates womans right to life. It violates  Article  39(e) of the  Constitution  which states the principle of state policy that the health and strength of women is not to be abused. It ignores Article  51A (e) of the  Constitution  which states that it shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women. The architects of the MTPA, 1971, have not taken into consideration the fundamental rights of the foetus to be born. It is submitted that life exists in the foetus while in the womb of the mother and in this context Article 21 of the constitution of India is applicable to unborn person as well. Current Scenario of the extent of Female Foeticide in India subsequent to the Legislative initiatives and Judicial attempts: It is quite unfortunate that in India despite enactment of effective laws there has been a little change in the psychology and behavior in the people who still have a damn care attitude in causing the death of that most vulnerable being in India the female foetus. The PCPNDT Act has not been successful to curb out this menace completely but has somewhere or the other contributed to the mushroom growth of private clinics all over the country where people desperately visit for conducting sex selective abortions. Another shameful picture which has come out is that of the doctor community, more often labeled as Gods in our country, are seen to commit a blatant violation of law as well as medical ethics. The zeal with which Female Foeticide has been pursued in the last few decades is indeed a matter of grave concern. The 2001 census registered a decline in the child sex ratio in 80% of the districts in India. The juvenile sex ratio, which stood at 976 in 1961, fell to 927 in 2001, for th e country as a whole. According to a popular survey, there are 2,379 registered scan centres in Tamil Nadu alone. In Chennai itself, 147 private nursing homes are allowed to carry out medical termination of pregnancy and sterilisation. What actually happens in our country is that laws remain as mere paper legislations only. For example, the PCPNDT Act mandates the seizure of all equipment/machines for non-registration. But what usually takes place in our country is release of machines after payment of a fine. Considering another situation, the Act also mandates that any person conducting ultrasonography or any other pre-natal diagnostic technique must maintain proper records. The Act requires the filling up of a written form, duly signed by the expectant mother, as to why she has sought diagnosis. But in reality there is hardly any forms fi