EFFECTIVENESS OF LAWS PROHIBITING SEX SELECTIVE ABORTIONS IN CURBING FEMALE FOETICIDE IN INDIA

Indian society is one of the societies in the world where there are more number of male than female population. The long standing tradition of son preference is still in practice and it is one of the reasons for the lesser number of female in the country. The birth of the girl child has never been welcome and she has been considered as a burden due to various factors. She is considered as a calamity and rejected as an unwanted person. She is denied of the basic rights in the society, which started before her birth from the four walls of the family.

In India, there is an indication of son preference in religion, culture and society. Even the blessings reflects discriminatory attitude towards girl child. The evils of female foeticide and infanticide are not new to the Indian society. It has been practice from decades. The root cause of the problems started with the patriarchal society and the institution such as dowry and the religious views that gave preference to the male rather than the female. There is a pre-conceived notion that the family lines runs through the male as the female child get married and went to her husband family and become the part of husband family.

Another main reason for this practice is the system of hypergamy, where the women must marry into a social group above their own. Among the upper caste it was impossible. It was thought that the rule of hypergamy could make the girl remain unmarried, thus girl in this group were killed and theboys married females from sub caste slightly lower than their own. In nineteenth century, it was indicated that a large group of village in Rajasthan and Gujarat, comprising of several hundred upper caste households, where no female child had been allowed to survive for many generations.

Social, religious and financial pressure in India, have led to the preference of male over the female child. The bias towards female also relates to the fact that sons are considered to be the one who provides social security at the old age of the parents. He is the one who performed all the religious ritual at the time of funeral of the parents. Even our religious views also contributed a prejudice towards the women. It is believed that the man, who does not beget a son, cannot attain“moksha” (redemption). Due to all these above reasons female child were not welcome to the family and she is killed as soon as her birth.Parents felt reluctant to give birth to a female child. It is considered that if it is a girl child, then they have to spend money for education as well for her marriage. A huge dowry is one if the main factors that made the parent to considered the girl child as a financial burden. But, if it is a boy, there is no need to pay dowry on his marriage, instead they will get dowry on his marriage. On the other hand, son will stay with them till they die and it is like getting insurance for their old age.

In an age where female have made progress in the entire field and has been walking on par with that of the male, there are people who still accord a lower status to the women. In Indian societies,while the childless woman is considered as an incomplete woman and the one who cannot give birth to a male child is also considered as a partial incomplete. On the other hand, the one who gave birth to a male child enjoy a higher status. It is unfortunate that even in 21st century where lots of developments have taken place in education, science and technology, the position of the girls is not enhanced but it is deteriorating. Parents still prefer boy child and they can go to any extent to get aboy child.

In the earlier days, when the scientific technologies were not advanced and it was impossible to determine the sex of the child, the killing of the unwanted girl child was done after her birth. Various practices such as poisoning the baby milk or by suffocating the infant or letting her choke on the husk-or simply by crushing her skull under the charpoy. But with the advanced of the medical science,sophisticated technique can now be used or rather misused, to get rid of her birth. Through the ultrasound scans, and the amniocentesis, the sex of the fetus can be determined during the pregnancy of the woman and the fetus is aborted if found to be female.

The truth is that the techniques which has been developed to diagnose the condition of the fetus in case of any deformities and genetic anomalies, medically termed as “amniocentesis”, has been primarily used for the purposed of determining the sex of the fetus and consequently termination of the female fetus. The discrimination against the female child started from the time of conception and she is considered as unwanted child, depriving of her to come in this world. The technology has given the easiest way to get rid of the female child and it is increasingly used especially in the male oriented society.

The old age practice of female infanticide that is being practiced from the beginning of the society got replaced by the female  feticide after the advent of the Pre-Natal Diagnostic Techniques. The practice of female feticide started since 1970 and early 80’s especially in Punjab and Haryana. Slogans like, “Boy or a girl”, “Spend 500 now and save 5 lakhs then”, flooded the entire Punjab, Haryana and Rajasthan.

Realizing to the alarming situation, where the dignity and rights of the girl child has been violated before her birth, women activist took up steps to stop this evil practice. Government too, realizing the grave misused of the technology, attempt to prevent the abuse of the Pre-Natal Diagnostic Techniques, only for medical purpose. In India, Maharashtra was the first state to enact legislation to regulate the used of the Pre-Natal Diagnostic Techniques in 1988.

For the above reason, Parliament enacted legislation under the name of Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misused) Act, 1994. The Act got amended as Pre Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, in the year2002 and came into force in 2003. The Act was introduced with the object of banning sex selection and prohibition of artificial insemination.The Act has also made selective sex abortion and the used of the techniques for determining the sex of the fetus as a criminal offence under the law. The Act was amended with the conformity of the direction given by the Supreme Court in the CHEAT case. The scope of the Act was expanded for proper implementation and to tackle the short coming that exist in the previous Act.

The Act specifically prohibits the use of the Pre-Natal Diagnostic Technique for the purpose of determining the sex of the fetus and directed the appropriate authority to monitor the proper implementation of the Act. In spite of the legislation preventing the abused of the technologies, illegal practice, are being carried out so as to select the sex of the fetus.

As a result, there is increasing distortion in the sex ratio and it is one of the main reasons for the change in the male- female ratio. Through the intervention of the activist, Supreme Court, have already compel all to the State government to initiate action against the misused of the ultrasound machines, clinics and hospital that encouraged the practice of female foeticide.

The Indian Medical Association too, has called for action against the doctors who are involved in sex selection procedures. The Act mandates that any persons conducting ultrasonography or any other Pre-Natal Diagnostic Techniques must maintain proper records. It also requires the filling of a written form, duly signed by the pregnant woman, as to why she has sought to diagnose.

The legislation also allows the termination of the pregnancy on the failure of contraceptive. The Medical Termination of Pregnancy Act, 1971, which allows the termination of the pregnancy, has been misinterpreted and the termination of the pregnancy is conducted for sex selection of the fetus. The Medical Termination of the Pregnancy has legalized the abortion on certain conditions but it does not permit sex determination of the foetus and selective sex abortion. It is pointed out that, thepregnant woman cannot avoid giving explanation in order to avail of abortion. She cannot simply say that it is an unwanted pregnancy. She is required to furnished explanation that fit the reasonable grounds for the termination of the pregnancy, as listed out in the Act. Usually people give the excuse of family planning to terminate the pregnancy.

 It is a huge challenge for the government to punish the violation of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. The offence under the Act, took place within the four well and due to the lack of the evidence, the culprit went Scot free. There is lack of evidence for the conduct of sex determination of the fetus and the information for the sex of the fetus is provided to the couple in some other form of indication such as in the form of sign.

The provision of the Act that requires the registration of the diagnostic center has failed. Many centres, especially mobile units are owned by the doctors not trained in the respective field. It is argue that the government have been supporting in the continuation of such illegal practice. As, both the doctor and the couple are the beneficiary in this practice, there is no complainant for the illegal practice. Many clinics fail to maintain records for the use of ultrasound machine and other Pre-Natal Diagnostic Techniques.

Though the Act provides deterrent punishment for the violation of the provision of the Act, it has hardly played any role in controlling the problem. The conviction rate under the Act is relatively low. Even the medical practitioners are reluctant in giving evidence against each other. Effective implementation is required along with proper monitoring system, in order to regulate the used of the techniques along with the co-operation of the registered medical practitioner.

At this juncture, the researcher has made an attempt to examine the effectiveness of laws prohibiting sex selective abortions and how far India is able to curb the practice of female foeticide. Along with this it also deals with the issues and the perspectives relating to the effectiveness of the law. An attempt has also been made to examine those factors that are contributing to the misused of the technologies. It also tries to find out the remedies for the problems arising out of the selective sex abortion and its impact on the society.