FEMALE FOETICIDE: LEGAL MEASURES TO CURB THIS SOCIAL EVIL
HISTORY AND STATUS QUO OF FEMALE FOETICIDE IN INDIA
Female foeticide refers to the practice of aborting a female foetus. This is a serious social issue in India, and it has cultural links to the dowry system, which is deeply rooted in Indian culture despite the fact that it has been illegal since 1961. Unlike any other Western community, India has a clear preference for sons over daughters. Differential contraception is used to schedule pregnancies; contraception is used to support the number of living sons regardless of family size. Following pregnancy, pre-natal diagnostic techniques determine the sex of the foetus, and female foetuses are aborted. Medical professionals' use of foetal sex determination and sex-selective abortion has expanded into a $1 billion industry. Discrimination towards women is encouraged, as is a preference for sons. Since 1991, 80 percent of Indian districts have seen a rise in the masculine sex ratio, with Punjab having the highest masculine sex ratio. According to India's decennial census, the male-to-female ratio in the 0-6 age group increased from 104.0 in 1981 to 105.8 in 1991, 107.8 in 2001, and 109.4 in 2011. In some states, such as Punjab and Haryana, the ratio is substantially higher.
When ultrasound techniques were widely used in India in the early 1990s, this process began. Families had a proclivity to continue having children until a son was born. This was largely due to India's pervasive misogynistic culture that discriminates against women. This is reflected in women's literacy rates as well as economic participation, both of which are especially low in states where female foeticide is prevalent and population ratios are unequal. To monitor population growth, the government initially supported the practise. In 1994, Congress passed the Preconception and Prenatal Diagnostic Techniques (PCPNDT) Act, rendering sex-selective abortion illegal. In 2003, it was changed to make medical practitioners legally liable. The PCPNDT Act, on the other hand, has been poorly implemented by the authorities.
CAUSES AND CONSEQUENCES OF FEMALE FOETICIDE
The dowry scheme in our culture is one of the principal causes of female foeticide. Many women are killed while still in the womb as a result of poor families' fear of dowry. They are concerned about paying the dowry for their daughters' marriages, which is something that poor people cannot afford. Many parents view their daughters as debtors. They claim that money spent on a woman will be absolutely wasted because she will go to her in-laws' house after the wedding. The birth of a boy is considered a journey to heaven in Hindu mythology. Women are put to death before giving birth because they are trapped in those orthodox ideas. Another root cause of female foeticide is an increase in inflation. Parents think a hundred times before giving birth to a female child as a result of rising inflation. They are concerned about their daughter's education and marriage. In recent times, development in technology has led to an upsurge in instances of female foeticide. Nowadays, parents decide on a child's sex before birth, and if it does not match their preferences, they terminate the pregnancy. Some doctors commit this heinous act in order to satisfy their financial desires.
Due to widespread occurrences of female foeticide, there has been a steep decline in the female population leading to difficulty in seeking out girls for marriage. This, in turn, results in the trafficking of young women. According to reports, girls from Assam and West Bengal are kidnapped and traded for marriage in Haryana, the state with the lowest child sex ratio in the country. Human trafficking has vastly increased as a result of female foeticide. Due to the plunge in the female population, our culture is becoming overwhelmingly male dominated, which is undeniably detrimental to the growth and welfare the Indian society. Men consider themselves to be superior and above the law as the number of women decreases, resulting in women's exploitation.
SOCIAL INITIATIVES AND THE IMPACT OF MEDIA
As people have become progressively aware and the menace of female foeticide has become more prominent, celebrities and journalists have launched campaigns to stop sex-selective abortions. Aamir Khan dedicated the first episode of his show Satyamev Jayate, Daughters Are Precious, to raising awareness of this widespread practise, focusing primarily on Western Rajasthan, which is known to be one of the areas where this practise is common. The local government in Rajasthan responded swiftly after the show aired, demonstrating the impact of media and nationwide awareness on the issue. Officials have promised to create fast-track courts to prosecute those who perform sex-based abortions. Six sonography centres had their licences revoked, and more than 20 others had sent notifications. On a smaller scale, this has been accomplished. Theatre has been used to counter cultural interference. A women's theatre community in Tamil Nadu has produced plays such as Pacha Mannu, which is about female infanticide/foeticide. This play was mainly performed in cultures where female infanticide/foeticide is practised, and it has culminated in a redefinition of a consciousness-raising approach, opening up new ways of interpreting and subverting cultural expressions.
LEGAL PROVISIONS GOVERNING THE DEPLORABLE AND DIABOLICAL PRACTICE OF FEMALE FOETICIDE
Section 312 of the Indian Penal Code 1860, read with the Medical Termination of Pregnancy Act, 1971, where all of the limits placed therein, including the 20-week time limit, infringe on the right to abortion and the right to health, which are derived from the right to life guaranteed under Article 21 of the Constitution. The right to abortion is a form of privacy right that, under Article 21 of the Constitution, is declared to be a continuation of the right to life.
Miscarriage and death of an unborn child are dealt with in Sections 312-316 of the Indian Penal Code (IPC), with sentences ranging from seven years in jail and a fine to life imprisonment depending on the seriousness and purpose of which the offence is committed.
Section 312. Causing miscarriage- “Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both, and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
Section 313. Causing miscarriage without woman's consent- “Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years.”
Section 314. Death caused by act done with intent to cause miscarriage- “Whoever, with intent to cause the miscarriage of woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term may extend to ten years, and shall also be liable to fine.”
Section 315. Act done with intent to prevent child being born alive or to cause it to die after birth- “Whoever, before the birth of a child, does something with the intent of preventing that child from being born alive or causing it to die after its birth, and succeeds in preventing that child from being born alive or causing it to die after its birth, shall, if such act is not done in good faith to save the mother's life be punished with imprisonment of either description for a term which may extend to ten years or with fine.”
Section 316. Causing death of quick unborn child by act amounting to culpable homicide- “Whoever commits any act in such conditions that if he caused death, he would be guilty of culpable homicide, and who causes the death of a swift unborn child as a result of such act, shall be punished with imprisonment of either description for a period that may extend to ten years.”
The Medical Termination of Pregnancy Act of 1971 was enacted to allow pregnant women to choose the number and spacing of their children. They were also given the option of having or not having the boy. This well-intentioned measure, however, was being abused to compel women to abort their female children. The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act was passed in 1994 to address the gaps in previous legislation, and it went into effect in January 1996. The Act made it illegal to determine the sex of a foetus and stipulated penalties for violating its provisions. It also mandated the registration of genetic counselling centres, clinics, hospitals, nursing homes, and other facilities.
The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act was enacted on September 20, 1994, to tackle the practise of female foeticide in the country, which is carried out covertly with the active connivance of service providers and those seeking such services. The Act is now known as the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act,1994, following the amendments. It was revised in 2003 to strengthen control of technology capable of sex selection and to arrest the decrease in the child sex ratio as reported by the Census 2001.
The South Asian Association for Regional Cooperation (SAARC) Decade of the Girl Child (1991-2000) National Plan of Action aims to ensure the girl child's equality of status by establishing concrete targets for her dignified survival and growth free of discrimination. Human life is regarded as sacred by codified law all over the world, and strict legal protections have been formulated to safeguard the lives of both the born and the unborn.
THE AUTHOR’S NOTE
Female foeticide appears to be more common in orthodox communities, according to evidence. As a result, it is critical to address these socio-cultural influences by altering thought processes through consciousness raising, mass appeal, and social action. Furthermore, all parties involved, including religious and social leaders, volunteer groups, socially responsible media, doctors; the Medical Council/Association (by upholding medical ethics and implementing sanctions on deviant doctors) and law enforcement officials, can work together.
Female foeticide occurs, ironically, in a country where people worship a variety of Goddesses, where females are revered as Maa Laxmi's embodiment, and where young girls are worshipped and people rub their feet for blessings. Even so, the deliberate killing of girl children continues. Such are our society's double standards. Every Indian woman's fundamental rights include access to education, health, and empowerment. Female foeticide is a heinous criminal activity that must be avoided by harsh legislation and a shift in public opinion. For a better future, save the girl child!!!
Rao Mamta, “Law Relating to Women and Children”
Kapoor, S.K. (2017), “Human Rights under International Law & Indian Law (7th ed.)”, Central Law Agency
Gaur, K. (1995). “Abortion and The Law in Countries of Indian Subcontinent, Asean Region, United Kingdom, Ireland And United States Of America”, Journal of the Indian Law Institute, http://www.jstor.org/stable/43951603
Reports published by The Ministry of Health and Family Welfare, India.
Vikaspedia, “Law on Abortion”, retrieved from https://vikaspedia.in/social-welfare/women-and-child-development/women-development-1/policies-and-acts-1/law-on-abortion#:~:text=It%20is%20a
Tilak Marg (August 28th, 2020), “Indian Penal Code- Sections 310 to 328”, retrieved from https://tilakmarg.com/acts/indian-penal-code-sections-310-to-328/
Legislative Department, “The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994”, retrieved from https://legislative.gov.in/actsofparliamentfromtheyear/pre-conception-and-pre-natal-diagnostic-techniques-prohibition-sex
Subham Sarthak Das
First Year, BBA LL. B
Xavier Law School
XIM University, Bhubaneswar