Laws Regarding Female Foeticide

India today, is not a very women-friendly place – as those unborn aren’t allowed to live, and those alive aren’t allowed to live. To eradicate the menace of female foeticide from the Indian society, one thing that certainly needs to be looked into is the law. Though changing the law or making it stricter will not immediately and completely bring a solution, it is a step. And when the evil is established to be completely illegal, it is slightly easier to pin down the problem. However, what is the law at present? What is the status of the part of our Constitution that governs the practices at point?

There are three laws that need to be looked into – one regarding dowry (the major cause for female foeticide), one concerning sex selection, and finally, one about abortion.

Delving into dowry laws is not very difficult – dowry is simply illegal. Section 4 of the Dowry Prohibition Act (1961) states that a person shall be deemed guilty if s/he demands any dowry, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom. Section 3 of the same act condemns a person if s/he gives or takes or abets the giving or taking of dowry. The Act defines dowry as any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage (or by the parents of one party or any other person to the other party or any other person) – basically, cash, property or valuable security offered as precondition to the marriage. Stridhan (property of the woman) is legal, however.

Sex selection is covered under the Pre-Conception & Pre-Natal Diagnostic Techniques Act, 2002. Originally, there was a Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, but due to the prevalence of pre-conception diagnosis, a newer law was put in order.

The PC & PNDT Act states that no place or doctor is authorized to conduct pre-natal diagnostic techniques except for the purpose of detection of one or more of:

–          chromosomal abnormalities;

–          genetic metabolic diseases;

–          haemoglobinopathies;

–          sex-linked genetic diseases;

–          congenital anomalies;

It also states that “no person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs or in any other manner” and “no person shall, by whatever means, cause or allow to be caused selection of sex before or after conception”.

Under the Act, the following people can be charged: 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, “unless proved guilty”.

The Medical Termination of Pregnancy (MTP) Act, 1971, legalizes abortion – however, under certain conditions. It states that pregnancy can be terminated by at least one registered medical practitioner (if the length of the pregnancy does not exceed 12 weeks) and by at least two registered medical practitioners (if the length of the pregnancy is between 12 and 20 weeks) who are of the opinion, formed in good faith, that

–          the continuation of the pregnancy shall expose the woman to risk to her life or of grave physical or mental health

• (this includes women subjected to rape, and pregnancy induced by the failure of any contraceptive device or technique used by a married couple)

–          There is substantial risk that if the child is born s/he shall suffer from severe physical or mental abnormalities

Pregnancies that can be terminated also include those in minors (under-18) or “lunatics” with the permission of a guardian.

As the law is always criticized, these three laws have also been under the scanner and several parts have been claimed to be extra or less strict – than necessary. The dowry law has been criticized by men’s rights activists stating that the law is gender biased, and includes presumption of guilt (of the husband) and vague definitions of dowry and stridhan.

It has been claimed that the PC&PNDT Act focusses solely on ultrasonography as a technique for sex-selection, and newer technologies like amniocentesis and biopsy, and other techniques that could come up in the near future (for example, a technique involving taking a blood test isolating foetal cells from maternal blood hence enabling foetal sex detection is under investigation), which would be neglected under this Act.

The Medical Termination of Pregnancy Act has been said to ‘legalize’ abortion, but not present it as a ‘right’ for women. The twenty week limit (for abortion) has been criticized, stating that the sex of the foetus can be determined easily from the 12^th week onwards. However, others claim that the limit must be extended, citing other medical reasons (for example, the Nikita Mehta case in 2008). Moreover, since there is no absolute definition to the phrase, ‘severe physical and mental health risks’, and that the opinion lies with the physician, illegal abortions aren’t very difficult to carry out (not at least, at this day and age – where everyone is more than ready to fish out a bundle of notes from their pockets to achieve what they want).

The laws in India have been laid out pretty well – covering at least the bare necessities. However, more important than the law (in this case) is the implementation of the law. The laws have been passed fine, but the reason sex determination and illegal abortions still take place is the improper and inadequate implementation of the law. The law is not being properly implemented, and proper action has not been taken against those found guilty. Of course, the official reason shall remain ‘inadequate forces and staff’ and ‘lack of funds’, but we know better. And if female foeticide is to be stopped, it is time that our officials and those who have been presented with ‘power’, dig their noses into the laws in our Constitution, and begin taking severe and appropriate action. On paper, everything is fine – what is written can be criticized numerous times – but when it comes to taking action, well, action needs to be taken.

 

References:

http://www.thehindu.com/opinion/open-page/does-abortion-law-abet-female-foeticide/article3459939.ece
http://blog.medicallaw.in/medical-termination-of-pregnancy-act-abortion-laws-in-india/
http://en.wikipedia.org/wiki/Abortion_in_India

Click to access mtp%20Act.pdf

http://blogs.expressindia.com/showblogdetails.php?contentid=394265
http://www.wluml.org/node/4760
http://www.indianexpress.com/news/law-to-cover-new-techniques-of-sex-determination/761343
http://www.who.int/genomics/gender/en/index4.html#India:%20Sex%20selection%20and%20the%20law

Click to access 8-17.pdf

Click to access 2605.pdf

http://en.wikipedia.org/wiki/Dowry_law_in_India
http://policywise.net/2007/09/20/why-sex-determination-should-be-legal-in-india/

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