Female Foeticide In India And Its Legal Safeguards
How disgraceful it is, that in a country where on one hand, woman is worshipped as a Goddess, while on the other hand, she is being killed in a womb. This is what female foeticide is.
It is the practice of killing of the girl child in the mother’s womb. There is a tendency among Indian families to continuously produce children until the male child is born. People involved in female foeticide forget to figure out that when the foetus of a girl child is destroyed, future of a woman is also crucified.
Swami Vivekanand had once said: -“Just as a bird could not fly with one wing only, a nation would not march forward if the women are left behind.”Even in our sacred book, Mahabharat, Indian women are described as ‘beautiful and of high moral character.’
CAUSES
Generally, it is seen that the preference of male child over female is a major cause behind this social evil.
Here are other few major causes:
(i)Dowry
(ii)Technological advancement
(iii)Rise in Inflation
(iv)Preference of a male child
(v)Financial burden
Legal safeguards for unbornchild
The Indian Penal Code, 1860
Sections 312 to 316 of the Indian Penal Code (IPC), 1860 deals with miscarriage and offences against unborn and new born child.Depending upon the gravity of the crime, different punishments have been given under the Code.
Article 21 of the Constitution
The right to abortion is a species of right to privacy, which is enshrined under Art 21 of the Constitution.
The Hon’ble Supreme Court, while considering a landmark case of “Suchita Srivastava & Anr. vs. Chandigarh Administration, (2009) 14 SCR 989” where an orphaned woman suffering from a mental retardation got pregnant as a result of rape, held that Article 21 of the Indian Constitution which guarantees right to life and personal liberty has a broader dimension which extends to liberty of a woman to make reproductive choices. These rights are the components of the woman’s right to privacy, personal liberty, dignity and bodily integrity as enshrined by Article 21 of the Constitution.
This similar position was reiterated by the Hon’ble Supreme Court in the landmark case of “Justice K.S.Puttaswamy(Retd) Versus Union Of India,(2019)1 SCC 1.”
Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994
In order to curb the practice of female foeticide and to raise the level of sex ratio, this Act was enacted by the Parliament of India on 20th September 1994 andcame into force on 1st January,1996.
The main purpose behind the enactment of this act was to ban the use of sex selection techniques before or after the conception and prevent the misuse of prenatal diagnostic techniques for the purpose of pre-natal sex determination leading to female foeticide.
The Act also regulates the use of pre-natal diagnostic genetic abnormalities techniques, like ultrasound and amniocentesis, by allowing their use only to detect genital abnormalities, metabolic disorders, chromosomal abnormalities, certain congenital malformations, haemoglobinopathies and sex-linked disorders.
The Act was further amended in the year 2003 to improve the regulation of the technology, generally used in sex selection and was renamed as “The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition Of Sex Selection) Act” (PCPNDT Act).
Medical Termination of Pregnancy Act,1971
The Medical Termination of Pregnancy Act, 1971 provides a ceiling of 20 weeks, for termination of pregnancy, beyond which abortion of a foetus is not permissible. The MTP Act provides that for termination of pregnancy up to 12 weeks, the opinion of a single Registered Medical Practitioner (RMP) is required and for termination between 12 and 20 weeks, the opinion of two RMP’s is required. The Act provides certain situations in which a pregnancy can be terminated such as, in cases where the continuation of a pregnancy would involve risks to the life of the mother or involve grave physical or mental injury to the woman.
The Medical Termination of Pregnancy (MTP) Act 1971 was amended in 2002 to facilitate its better implementation and to increase access of medical terminatiofor women especially in the private health sector.
Thereafter, The Medical Termination of Pregnancy (Amendment) Bill, 2020 was introduced in LokSabha on March 2, 2020 and was passed on March 17, 2020. The new Act allows termination of pregnancy upto 24 weeks for special categories of women such as rape victims, differently-abled women and minors. It permits abortion up to 20 weeks on the opinion of one doctor and to terminate pregnancies between 20 and 24 weeks, opinion of two doctors are required and for abortions beyond 24 weeks, consent of State-Level Medical Board is required.
JUDICIAL PRONOUNCEMENTS
Centre For Enquiry into Health and Allied Themes (CEHAT) & others Versus Union of India (2001)3 SCR 534 & Centre for Enquiry into Health and Allied Themes (CEHAT) & Others Versus Union of India (2003)8 SCC 412
In these matters, a writ petition was filed by three petitioners, namely, Centre for Enquiry into Health and Allied Theme, Mahila Sarvangeen Utkarsh Mandal (MASUM) based in Pune and Maharashtra and Dr. Sabu M. Georges, in the Hon’ble Supreme Court against Union of India with a prayer for effective implementation of the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 as there was a decline in the sex ratio in the 2001 census in States like Haryana, Punjab, Maharashtra and Gujarat. The issue that came into consideration before Hon’ble Court was that despite enactment of the Act, it failed to prevent female foeticide.
For effective implementation of the Act, the Hon’ble Supreme Court had given various directions to Central Government,Central Supervisory Board (CSB), State Government/UT Administrations and State Governments/UT Administrations.
The Hon’ble Supreme Court while delivering the said judgments also pointed out that a mere enactment of the Act is a not a solution, proper implementation of the Act is also necessary.
Both are landmark cases where Hon’ble Court adequately addressed the issue of female foeticide and enforcement of the Act, prohibiting prenatal sex identification and recommended for the Amendment in the Act.
Voluntary Health Association of Punjab Versus Union of India & Ors, (2013)4 SCC 1
In the said judgment, Hon’ble Justice Mr.Dipak Mishra while expressing his concern over sex selective abortions and misuse of the Prenatal Diagnostic Techniques Act,1994 made the following observations:
“A woman has to be regarded as an equal partner in the life of a man. It has to be borne in mind that she has also the equal role in the society, i.e., thinking, participating and leadership. The legislature has brought the present piece of legislation with an intention to provide for prohibition of sex selection before or after conception and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide. The purpose of the enactment can only be actualised and its object fruitfully realized when the authorities under the Act carry out their functions with devotion, dedication and commitment and further there is awakened awareness with regard to the role of women in a society. When a female foeticide takes place, every woman who mothers the child must remember that she is killing her own child despite being a mother. That is what abortion would mean in social terms. Abortion of a female child in its conceptual eventuality leads to killing of a woman. Law prohibits it; scriptures forbid it; philosophy condemns it; ethics deprecate it, morality decries it and social science abhors it.”
Vinod Soni and Anr. versus Union of India,2005 CriLJ 3408
In this matter, Petitioner challenged the constitutional validity of Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act of 1994 alleging that it violates Article 21 of the Constitution of India on the ground that the right to personal liberty also includes the liberty of choosing the sex of the offspring.
The Hon’ble High Court while rejecting the contention of the Petitioner has held that, “It will therefore be seen that the enactment does not bring about total prohibition of any such tests. It intends to thus prohibit user and indiscriminate user of such tests to determine the sex at preconception stage or post conception stage. The right to life or personal liberty cannot be expanded to mean that the right of personal liberty includes the personal liberty to determine the sex of a child which may come into existence.”
SangeetaThapa Versus Government of NCT of Delhi &Ors, W.P.(C) 15241/2021
TheHon’ble Delhi High Court while allowing a woman to terminate her 28 weeks’ pregnancy as her foetus was suffering from a rare congenital heart disease has made following observations.
- The High Court said the woman cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy, due to foetal abnormalities.
- Reproductive choice is a dimension of personal liberty that is enshrined in Article 21 of the Constitution.
- Allowing the pregnancy to continue would have a deleterious impact on the petitioner’s mental health.
- The petitioner cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy in view of the medical board’s opinion.
CONCLUSION
It is unfortunate that a country where Constitution provides equal status to both men and women, a crime like female foeticide still exists. According to the fifth National Family and Health Survey carried out by the government between 2019 and 2021, it was found that India has 1,020 women for every 1,000 men. For the first time India had more women than men in its history. The scheme “BetiBachao, BetiPadhao” was introduced by the Government to address issues related to gender discrimination and women empowerment in the country. This scheme focuses on changing mindsets and patriarchy in the society and ensures effective implementation of the PC & PNDT Act.
It is true that strict interpretation of law is necessary but we need to understand that mere enactment of legislation cannot itself solve the problem. A strict interpretation of law as well as stringent punishment, both are necessary for achieving the intention of the legislature behind enacting laws. In fact, we all should collectively make efforts to eradicate the practice of female feoticide. More such schemes should be incorporated by the Government, more such camps should be organized and more education and knowledge should be provided so that no person can ever think to snatch the life of a female child in the womb of a mother.