Monday, May 24, 2010

Female Foeticide- A Legal Helplessness & Remedial Measures for Mitigation of Female Foeticide

“Female Foeticide: A legal Helplessness”
Feticide or foeticide is an act that causes the death of a fetus. In legal context, “fetal homicide or child destruction” refers to the deliberate or incidental killing of a fetus due to a criminal human act. Female foeticide is a process of aborting perfectly healthy female foeticide after about 18 weeks (or more) of gestation just because they are females. The same foeticide would have been allowed to live if they were males. There is no question that female foeticide is not just unethical but it is downright cruel as well. Despite being in good health, the aborted baby girls' chance at life was taken away just because they were females, while they would have been permitted to live if they were males- an unethical issue. Cruel because they are partially grown and well on their way to become persons we refer to as the human infants.
“The Lancet, the British Medical Journal reported that there may have been close to 10 million female infants aborted in India over past 20 years”

Is Female foeticide is legal or Illegal?
It is true that people should have every right to plan their families. If a man has a daughter and he wants son let him have it. But difficulty lies if he wants son only. How far it is correct to permit him to do so? The sex determination test is used to destroy the female foetus than to control the number of children or to have a child of the sex of one’s choice.

Sex-selective abortions can never be justified, solely for the reason that they are discriminatory against the female sex. From the pro-abortion viewpoint, according to which, a woman must be given freedom of choice whether she wants to raise a girl or a boy. The stage of pregnancy is immaterial, and therefore partial birth abortions just seem cruelly inhumane. A woman’s right to choice is considered supreme. However, this argument is only spearheaded by those who are unaware of societies that are diseased by the son-preference syndrome. They are ignorant of the mass extinction of the female sex occurring as a result of sex-selective abortions. They don’t realise that their attitude of freedom of choice for women does not apply in societies that practice female foeticide. In these societies, women rarely have a say in the decisions that involve them or their body. They are not practicing their freedom of choice when aborting their child. Majority of them are pressured into doing so covertly.

The terrible impact of sex selection
The 2001 Census data and other studies illustrate the terrible impact of sex selection in India over the last decade-and-a-half.
• A machine just of Rupees one lack causes the sex selection possible for first time in human species.
• The child sex ratio (0-5 years) declined from 945 girls to 1,000 boys in 1991 to 927 in the 2001 census.
• In the 1991 census, there was one district with a sex ratio below 850:1,000. There were 45 such districts in the 2001 census.
• The sharpest declines in sex ratio were in Himachal Pradesh, Punjab, Haryana, Gujarat, Uttaranchal, Maharashtra (with 4,345 registered ultrasound clinics or centers out of a total 28,000 or so nationwide) and Chandigarh, where sex selection technology was widely available.
• The 10 districts with the worst sex ratios in the country – all below 800 – are all in Haryana and Punjab.
• Nine lack girls are being eliminated every year before the take birth.
Sex Selective abortion: legal vs. Social Justice
Gambhir case of sex-selective abortion in Ludhiana. As per the report, in July 2008, a team of officials from the Health department raided the premises of Jatinder Ghambhir Hospital on pakhowal Road in Ludhiana, where a woman was being readied for the abortion of her female fetus. It has been four months since then and the “police are still grappling to gather more evidence against the accused in order to strengthen the case”. While the legal arm is still struggling to serve the justice, it seems that the social pressure has certainly made itself felt. Owners of the hospital, Dr. APS Gambhir and Dr. Jatinder Gambhir have changed the name of the hospital from Jatinder Gambhir Hospital to Angat Superspecialty Hospital. Is this a sign that being identified as a kudimaar carries a threat of social stigma in that society? If we thus interpret it, then it asks for the offenders to be spotlighted more often. Understandably, determining whether an abortion is genuinely sex-selective will not be straightforward and will have to run its course to ensure that legal justice is served. However, social boycott of those businesses (hospitals and ultrasound clinics are businesses) that practice or abet KUDIMAARI will be a good example of free-market retribution.
So it conclused that banning sex selective abortion could not be a perfect solution for reducing the female forticide as there is a threate to women Rights of abortion rather other approaches such as Education, Awareness, Empowerment of women, women could be used as powerful equipments to cursue a women to fight sex selective abortion as a social evil.

Statistical data of recent Researches
Though strict laws and penal actions are taken against violators, but the laws have not worked. Over 10 million female foetuses have been aborted in India in the past two decades.
The sex ratio as per 2001 census the females are 933 per 1000 males. Although a marginal improvement of six points in the overall female to male sex ratio in India From 927 in 1991 to 933 in 2001. Is an encouraging development, the massive decline of 18 points in the juvenile sex ratio (age group of 0 to 6) from 945 to 927 in the country after 1981. Is what shows the extensive female foeticide in India?

Year wise sex Ratio Females per 1,000 males

S.N. Year Rural Urban Total
1 1901 979 910 972
2 1911 975 872 964
3 1921 970 946 955
4 1931 966 838 950
5 1941 965 831 945
6 1951 965 859 946
7 1961 963 845 941
8 1971 951 947 930
9 1981 954 880 935
10 1991 938 894 927

State wise sex Ratio (2001)

State Sex Ratio State Sex Ratio
Haryana 801 Assam 935
Sikkim 875 Jharkhand 941
Punjab 876 Tripura 948
Jammu& Kashmir 892 Goa 961
Arunachal Pradesh 893 Uttaranchal 962
U.P. 898 Karnataka 965
Nagaland 900 Himachal Pradesh 968
M.P. 919 Orrissa 972
Bihar 919 Meghalaya 972
Gujarat 920 Manipur 978
Rajasthan 921 AandhraPradesh 978
Maharashtra 922 Tamilnadu 987
W. Bengol 934 C.G. 989
Mizoram 935 Kerala 1058

Sex Ratio of Important cities in INDIA
S.N. City 1991 2001
1 Pune 943 906
2 Mumbai 942 898
3 Badodra 934 873
4 Jaipur 925 897
5 Rajkot 914 844
6 Delhi 904 850
7 Ahmadabad 896 814
8 Ambala 886 784
9 Faridabad 884 856
10 Gurgaon 875 863
11 Patiala 971 770
12 Kurkshetra 868 770
13 Amritsar 861 783

Districts Rating the lowest Child Sex Ratio in INDIA (2001)
Child Sex Ratio of 0-6 Year
S.N. District Sex Ratio
1 Fatihgrahsaheb (Punjab) 766
2 Kurkshetra (Haryana) 771
3 Patiala (Punjab) 777
4 Ambala (Haryana) 782
5 Mansa (Punjab) 782
6 Kapurthala (Punjab) 785
7 Bhatinda (Punjab) 785
8 Sangrur (Punjab) 786
9 Sonipat (Haryana) 788
10 Gurdaspur (Punjab) 789
Child Sex Ratio
S.N. Year Rural Urban Total
1 1981 963 931 962
2 1991 948 935 945
3 2001 934 906 927

Legislation for Female Foeticide

1. Sec. 3 ‘A’ Prohibition of sex selection
No person, including a specialist or a team of specialist in the field of infertility, shall coduct or aid to conducting by himself or any other person. Sex selection on a woman or men or both or any tissue or embryo, conceptos fluid or gametee derived from either or both of them.
2. Indian Penal Code - 1860
Sec 313 –without the consent of the women
Sec 314 – Trying to cause miscarriage and their by causing death.
Sec 315 – An Act done to prevent a child from being born or born alive counselling the birth of a child.
Sec 316 – Act resulting in death of an unborn child.
Sec 318 – Secretly dispossing body of child or intentiolally.
3 PNDT Act (Prohinition of sex selection) 1994
The Act prohibits determination and disclosure of sex of foetus. It also prohibits any advertisement relating to Pre natal determination of sex and prescribes punishment for its contravention. The person who contravenes the provision of this Act is punishable with imprisonment and fine.
It imposes restriction on clinics, medical, personal and cells of mechanism.
Only registered genetic clinics can use PNDT.
It Prohibition of sex selection.
4 The 10th five year plan wills iniciate action to enforce effectively both IPC 1860 and PNDT (Regulation & Prevention of misuse) Act 1994. The control/eradicates the female foeticide and infenticide, respectively with a very close vigil and surve along with seviour panishment for the guilty.
The Preconception and Prenatal Diagnostic Techniques Act, 2003, covers pre-conceptual techniques and all prenatal diagnostic techniques.
The following people can be charged under the Act: everyone running the diagnostic unit for sex selection, those who perform the sex selection test itself, anyone who advertises 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”.
All diagnostic centres must be registered with the authorities. They are required to maintain detailed records of all pregnant women undergoing scans there.

Penalties under the Act are 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 will be reported to the state medical council which can take the necessary action including suspension
For implementing the Act, “appropriate authorities” are appointed at the state level and work with the director of health services, a member of a women’s organisation and an officer of the law. At the district level, the appropriate authority is the casualty medical officer or civil surgeon.

Some important finding after the implementation the Act
• Though India has a history of skewed female sex ratio, what the country is witnessing today is the systematic extermination of the female child, with the ultrasound machine serving as an instrument of murder.
• Though the government enacted the Pre- Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act in 1994, which came into force in 1996, situation far from improving, further worsened. A concomitant rise in the number of private clinics providing sex determination test was seen as a result of banning such practices in government hospitals.
• Before the Act was amended in 2003, the technology had already reached even in areas which do not have potable water. As a result, the sex ratio recorded in India in 2001 in children was 927 females per 1000 males as compared to 1961 when it is 976 females per 1000 males. UN reports reveal that between 35 to 40 million girls missing from the Indian population.
• This type of selection in done for having a Boy or a shake of the head or a grimace for a Girl, as if she is an incoming catastrophe. It is ironic to see that maximum sex selective abortion are performed by a lady doctor (totally against of PCPNDT Act).
• Women herself agree to undergo a sex selective abortion completely knowing that it would a contribution to depletion of their own sex

Loophole in the Act
• Through recent survey in districts of Jodhpur and Barmer in Rajastan:
-The medical practioner: The doctor in small cities/town/villages is not aware of “what is PCPNDT Act & what it says?”
-Medical audits are not done on time.
-The forms’F’ is not fully completed by the responsible authority at the of sonography (Failure of maintaining records of scanning is violation of ACT)
• The agencies, NGOs and the people are not at all aware on issue. The root cause needs to be eliminated and that is the dawary system. Though the dawy law exist, may are not being implemented properly.
• Hundreds of clinics in the lanes and by-lanes of the capital carry out sex determination tests illegally though a board outside the clinic reads “No Sex determination tests done here”.(violation of PCPNDT Act)
• Appropriate authorities did a poor job of monitoring registered clinics, even going through their documentation for accuracy: report of PNDT Monitoring Committee.
• The appropriate authorities don’t know their functions and responsibilities. And when they’re trained in their work, they get transferred.
• Last but most important is limited or negligible role of media in the publicity of the Act to aware the illiterate mass of INDIA.

Sex Selection: A Big Question In front of Legislation
Ban against sex selection
The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act was enacted to curb the malpractice of identifying and terminating the foetus. The stated purpose of the legislation is to prohibit the use of prenatal diagnostic techniques for the determination of the sex of a foetus, which results in “female foeticide”. This is described as “discriminatory against the female sex” and “affecting the dignity and status of women.” The PCPNDT Act regulates all pre-natal diagnostic techniques and prohibits sex selection per se. Act prohibits all technologies of sex selection, which would also include the new chromosome separation techniques.
 Misuse of technologies: Technologies of sex selection can potentially be used for elimination of sex-linked diseases or to select the child of the desired sex. In India it has been used primarily for sex-selection for sons.
Is total Ban necessary? With the blanket prohibition of sex selection under the PCPNDT Act, it is not possible in India to use pre-natal diagnostic techniques to abort foetuses whose sex (and the family history) indicate a high risk of certain sex-linked diseases or to choose a foetus whose sex is less susceptible to certain sex-linked diseases. This contradicts the MTP Act which permits abortion of a foetus that is at a risk of being born with serious physical or mental disabilities. While it is legally permissible to abort a foetus at risk of serious physical or mental disabilities, it is not permissible to select foetus of a sex which is less likely to suffer from a sex-linked disease. Legal and ethical questions involved in sex selection for elimination of sex-linked diseases are open for debate.
The two laws related to abortion create ethical dilemmas for doctors as well as pregnant women. The MTP Act contains general provisions but also restricts abortion due to contraceptive failure to married women alone. This effectively gives doctors the power to provide or refuse abortions depending on their personal views. While the MTP Act permits abortion of a foetus with serious abnormalities, the PCPNDT Act does not permit the identification of the sex of the foetus for the purpose of eliminating sex-linked disorders.
Remedial Measures for Mitigation of Female Foeticide
• Rules and laws at community level (Micro level Planning): Community People must take an initiative to make rules prohibiting foeticide at their own level. Social evil can only be reduced through public intervention.
• Public protest mainly by women can be effective for uplifting the low status of women that is the real cause of female foeticide (Dowry system, Decling sex ratio, domestic abuse, Mortality Rate, Economic & Financial Contribution etc. keeping these indicators in mind public protest should be initiated)
• Empowerment of women: Keeping the above indicators in mind campaign should be designed to promote awareness about issues affecting women the worst.
• Legislation that looks after the needs of affective women must make more avenues where women can seek help when needed. Telephone lines must be affordable even to the poorest women. Effective complete registration with immediate follow up is must.
• Human Right Commission of India should work coordinately with women and health commission of India for effective implementation of the laws relating female foeticide.
• Micro level monitoring of sonography and auditing of form ‘F’, completion of its 24 Colums must be done at regular intervels.
• Sting operation must be performed in order to cheak the implementation of laws.
• Monitoring and auditing of the sonography centre.
• Continous monitoring of pragnent women with the help of A.N.M and Aanganwadi workers (they should be provided with toll free number to provide immediate information such an Act if going to happen in their village)
• Awareness through workshop, Seminars, Discussion group at local community centers, media, etc. with the remedial measures at NGOs level must be done.
• Compliant registration facility: At micro level such a facility should be provided that a woman who want to speak against such an evil happening can register her complain without threat of disclosing her identity (for the threat of boycott from the society).
• Should be stopped at family level.
• Widow and Adult women should be given respect and facilitate to lake participation in social programmes.
• Women should be involved in decision making process at family level.
• Social worker must work with social gender discrimination in community and social programme.
• Child marriage must be stopped.
• NGO should involve in formation, functioning and capacity building of mahila mandal and self help group (S.H.G) to facilitate them for a systematic protest against female foeticide.
• NGO should employee, the worker at district /block level and in working to monitor the clinics (conducting abortion) for their registration and trained professionals, the registration is legally approved or not?

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