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Is it a boy? Is it a girl? it’s a baby

Post by on Sunday, June 26, 2022

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“To save a girl is to save generation” – Gordon B. Hinckley
Indian society, since time immemorial, has seen a common practice of preferring sons over daughters. Be it princes ascending the throne to a vast kingdom or, a business tycoon’s son being groomed to take over the board, or when a politician father hands over his reign; it became an unsaid rule that sons will carry forward legacies.
What this means for daughters is a discussion for another day, today’s two cents are about: what happens when the discrimination starts before inception? To discuss discrimination between sons and daughters in their lifetimes is an incessant debate, but what I believe needs to be addressed first is the illegal practice of pre-conception sex selection and pre-natal sex determination.
When a girl is born, the happiness of becoming a parent is a secondary emotion, whereas the first thought is, “iskishaadi aur dahej k liyeaaj se he paise jodnepadenge”; she’s born with the tag of being a liability. When a son is born there is a wave of relief that runs across the body, thinking that, “chalo ab ye agaya, humarabudhaapa kat jaaega”; he’s born with the tag of being an asset for life. It is because of these sentiments that India has seen an omnipresent want to raise sons, and families going beyond the realm of biological sciences to determine the sex of a baby before it is even conceived, or they try to determine the sex of the baby as soon as possible during the pregnancy so that “it can be dealt with accordingly”.
One popular recourse for people is SSDs, i.e., Sex Selection Drugs. These drugs are mostly ayurvedic or natural remedies which claim to aid in conceiving a male child. Most commonly people turn to plants like Shivlingi and Majuphal, which otherwise have been found to have a significant presence of testosterone and natural steroids. The most noticed impact of consuming these plants, in the forms of tablets and powders, is the birth of stillborn babies, fetal impact, and, even mental and physical abnormalities.
If not sex selection, most couples turn to sex determination of the child as early as 12 weeks into the pregnancy, however, it is established information that the greater the number of weeks passed gives a better answer, and even then, the results may not always be accurate because of the fetus’ position or lack of clarity of image, or by simple misinterpretation. In almost all cases where it is discovered that a girl child has been conceived, parents opt for abortion, leading to female feticide.
It was found in a 2011 population census that the sex ratio prevailing in India is only 940 females to every 1000 males. It is the northern states of Haryana, Rajasthan, Punjab, and Uttar Pradesh which have been found worst hit by declining sex ratios with their latest figures being 922 to 1000, 928 to 1000, 886 to 1000, and 912 to 1000 respectively.
To tackle the declining sex ratio and with the long-term to aim to completely eradicate the practice of female feticide, the Government enacted the Pre-Conception and Pre-Natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994. The Act prohibits the use of diagnostic techniques to determine the sex of the fetus and also lays down the consequences faced by radiologists/sonologists/gynecologists who are caught violating its provisions. Some of the most prominent provisions of the act are –
- Sections 3 and 4 regulate genetic counseling centers, genetic laboratories, genetic clinics, and pre-natal diagnostic techniques,prohibit their involvement in sex determination, prohibit the sale of ultrasound machines to labs/clinics not registered with the Act, does not allow for a woman’s husband or relatives to encourage sex determination.
- Section 5 makes it mandatory for the above-mentioned parties to inform a woman about what pre-natal diagnostic technique she is about to be subject to, why it is being conducted, and will also obtain her written consent for the same.
- Section 6 explicitly prohibits the determination and communication of the sex of the fetus, encompassing the essence of the entire Act.
- Section 17 gives directions to set up an Appropriate Authority in each state and UT, with the main role of granting, suspending licenses, investigating complaints, ensuring the maintenance of medical standards, etc.
- Section 18 requires the registration of genetic counseling centers, genetic laboratories, and genetic clinics under the Act. It requires the satisfaction and approval of the Appropriate Authority, set up according to the provisions of the Act itself, in order to obtain registration.
- Section 29 of the Act also requires that the above-mentioned parties maintain all records such as consent forms, reports, charts, etc. at least for a prescribed period of 2 years, unless they are specifically directed otherwise.
Other than these prominent sections, the Act also lays down the punishments for various violations. The punishment for publicizing prohibited services such as sex determination can lead to imprisonment for up to 3 years, with a fine that may go up to Rs. 10,000; medical practitioners or related persons who aid in contravening the provisions of the Act can face imprisonment of up to 3 years and a fine up to Rs. 10,000 upon their first offence, any subsequent offence will attract harsher penalties; any person who is found seeking assistance in sex determination can also face imprisonment for up to 3 years with a fine up to Rs. 50,000 for their first offence, and subsequence offences will attract harsher consequences.
While the Act has been aptly framed, addressing one prominent method of female feticide and its prevention, its implementation remains questionable.
Our Constitution promises that there shall be no discrimination on the basis of sex; a practice like female feticide takes the society in the opposite direction. It leads to major physical and mental trauma for pregnant women, with the possibility of causing their death. Another aim of this Act is to create awareness amongst the public, to educate them about health implications and to promote a social movement towards the acceptance of a girl child.
The practice of sex selection and followed by abortion has become such a common and freely practiced, illegally, exercise that parents-to-be and practitioners have become accustomed to ignoring the provisions of this Act, along with those of the Medical Termination of Pregnancy Amendment Act, 2021. However, as far as abortion is concerned, it is important to understand that it may not always be related to the sex of the fetus. Abortion in itself remains controversial wherein reasons such as pregnancy on account of rape, simple bodily autonomy and the right to decide when to take the responsibility of starting a family are strong arguments for relaxations in law. Therefore, from a holistic view, lack of awareness of law is a lesser problem than the lack of its acknowledgement in successfully implementing the law.
It is the general sentiment amongst doctors and other medical practitioners that some of the provisions of the Act and the punishment it prescribes for offences are too harsh, hamper with their right to freely practice their profession and thus have also been challenged as constitutionally invalid. For example, it is part of their argument that maintaining records in the manner described in the Act becomes diluted in practical life, and that the lack thereof can lead to license suspension for 5 years, and permanently upon the second offence. It has been expressed that this strict action seems arbitrary in nature, and the same can be reprimanded in an easier manner, which is enough to create a greater sense of respect for the law.
The case of Centre for Enquiry into Health and Allied Themes (CEHAT) and Others v. Union of India and Others (2001) is a prominent case on the implementation of this Act. In this case public interest litigation was filed under Article 32 of the Constitution, its subject being an advertisement that was used by a doctor promoting sex selection and the request from the Court being to give directions to the central and state governments to take initiative towards increasing awareness about the law amongst people and to discourage them from these age-old practices. A total of 6 orders were passed during the run of this case. Through this case the Apex Court established the gravity of its seriousness towards strict implementation of the Act.
Did You Know Fact – hundreds of skeletons, skulls and body parts were found buried in the proximity of various nursing homes in Orissa.
The fact mentioned above is key to a case filed in the High Court of Orissa, Hemanta Rath v. Union of India and Others, where a PIL was filed for the strict implementation of the Act in the state. Even after the CEHAT judgement, no assertive measures were introduced by States and the presence of this law remained mostly on paper. Not only were skeletons and skulls found near nursing homes, but there were also recurring ads in different media forms promoting the use of PNDT for sex selection.
Did You Know Fact – upon research it has been found that 12,771,043 sex selective abortions have taken place in India between 2000-2014, that is after the enactment of PC&PNDT Act.
Other than this Act, other measures taken to prevent female feticide have primarily been related to the education of the girl child, such as the Beti Bachao, Beti Padhaocampaign, cash transfer schemes such as Balika SamriddhiYojnaand Dhanlakshmi Scheme. The intention of these initiatives is to reduce the financial stress parents feel through a girl child, which is the main reason for their abortion. Education of young girls, while it is essential to them individually, is being promoted in order to eradicate the sentiment that only sons can look after their parents.
It can’t be pin-pointed that whether the law or such campaigns, which is a better tool to fight female feticide with. However, it has become evident through the history of the implementation of the Act and changing social structure and beliefs, that the best tool will always be a combination of law and educating the society. It is also important to acknowledge the difference between urban and rural culture and that while law may be easier to put into effect in the urban world, the roots of the problem extend to the rural world and require erosion on that level.
Another wave of change can be brought about through hold that the movie industry holds on people and how it is gradually addressing social issues. When an actor like Ranveer Singh, who has a massive following, chooses do a movie like JayeshbhaiJordaar which revolves around protecting his unborn daughter, it is but expected that out of 10 at least 5 people will wake up to the realization that times have changed. The world is moving towards equality, why not join the march?
Did You Know Fact – Haridaspur, a village in Kondapur, has broken stereotypes by beginning to celebrate the birth of girl children through a ritual called Kanyavandanam, along with giving financial benefits to new parents. It is an initiative taken by the panchayat to bring balance in gender equality.
*The author is an Advocate on Record practising in the Supreme Court of India,   Delhi High Court and all District Courts and Tribunals in Delhi. She has done her Doctorate in Criminal Law and is the Legal Member in the Internal Complaints Committee of various private as well as Government Organizations. She is also an empanelled advocate of various government institutions. The author has been a visiting lecturer in Law Centre-I, Law Faculty, Delhi University and has been writing on various legal issues in reputed journals and legal magazines. She has also authored books on legal issues impacting women as working on women related issues is her keen area of interest. Confidence building and leadership development of women is close to her heart and she is a firm believer of the fact that holistic development happens women coach women and take each other forward.
 
 

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