CHAPTER-I: focus the evil of female foeticide, it

CHAPTER-I: INTRODUCTION

 

 “It is very sad that in our
society even today, the girl child is being killed even before being born.  This is a shame on our society.  As soon as possible we have to remove this
blot. Our progress will be incomplete till women become equal partners in the
growth”.

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                                                                           –  Dr. Manmohan Singh.

When
the Prime Minister of a country in his address to the nation on the occasion of
63rd Independence Day brings to focus the evil of female foeticide,
it should be regarded as an imminent grave danger destroying the fabric of the
society which requires immediate attention.

Women
in India have made some progress and occupy key positions including the
President, the Chairperson of the largest political party, the Chief Executive
Officers of the big Companies.  In spite
of these achievements, the fact is that ordinary women’s condition is beset
with difficulties.

Women
who constitute half of the population have been discriminated,  harassed and exploited irrespective of the
religion, class or creed they belong to. In Indian society women have been
worshipped in various Goddesses on one hand and denied the most basic
fundamental right, i.e., right to life, by killing the female foetus inside the
womb.

Abortion
and challenges faced by women due to the legal limitations contained in the
Medical Termination of Pregnancy Act, 1971, (hereinafter referred to as the MTP
Act, 1971) has resurfaced before the Supreme Court of India, with significant
buoyant force in recent times thereby underscoring the importance of this issue
and the long impending overhaul. There are several issues within the existing
legal framework, which, far from guaranteeing autonomy to women over their own
bodies, impose restrictions and quite often prove counterproductive for
children who are given birth due to the force of law, compelled to live an
unloved, uncared and destitute life, suffering the ignominy of human existence sans human dignity.

Every law, no matter howsoever
good it is for the current era, becomes obsolete if not updated on a regular
basis to cater to the ever-evolving needs of the society. The MTP Act, 1971
isthe prevalent law dealing with abortions in India, is no exception.The
question arises as to whether or not the time has come for it to be updated and
modified in the light of the changingsocietal needs and medical know-how. More
specifically, do thegrounds for terminating pregnancies requirean increased in
number?

The question as to whether the
law which forbids the courts to allow the termination of pregnancy after 20
weeks even when it is sufficiently proved that the child would be incapable of
surviving an extra-uterine life, requires a serious consideration. Should the
parents be compelled to raise their child even if they lack the resources to do
so, especially if it discovered that the foetus would turn out to be severely
disabled? Does opting to give birth to a normal child instead of a severely
disabled one tantamount to a targeted and systematic elimination of disabled
people even before they are born? There are some of the questions that will be
examined in this paper. Additionally, the risk surrounding the fact that the
parents who are electing to abort a foetus, if they discover that the foetus is
suffering from some genetic mutation which might render the future child less
than ‘perfect’ even though it may be perfectly capable of extra-uterine
independent existence, also needs to be evaluated.

The issue of sex-selection
that is closely associated with termination of pregnancy shall also be dealt
with along with a perusal of how various legal systems reconcile these two
separate yet intricately connected problems. In India, it is widely known that
the desire for having a male-child is also key factor which drives parents to abortion
of a female foetus. This sex-selective abortion, though outlawed by the
Pre-Conception & Pre-Natal Diagnostic Techniques Act, 1994 (PCPNDT Act), is
still prevalent in many parts of the country. The debate surrounding the recent
phenomena of having a ‘perfect baby’ will also be touched upon and whether the
right of abortion is exacerbating this questionable line of thinking.

The research will further
explore several legal systems which permit abortion without conditions
restraining this right of the woman, which do not permit abortion at all, which
permit abortion in limited circumstances such as a threat to life of the woman
and/or the child. The pro-life and the pro-choice debate that surrounds the
issue of abortion will also be dealt with, in a comparative analysis milieu.
The research aims to delve into the issues of morality when it comes to
abortions. The morality here is of two kinds, viz, the morality behind the
decision of the woman to abort the child and the morality surrounding the right
of the unborn child to actually be born. In this context, issues such as
whether a woman has or should have complete autonomy over her body and whether
the unborn child possesses any rights at all, will be dealt with.

Another issue that will be
examined in the research, is the issue of permitting abortion to married women
who conceived the child due to failure of methods of contraception. The same
permission is not granted to unmarried women.1 The social
stigma that surrounds unmarried pregnancies will be scrutinized in this context
and whether or not it is justified to make such a discrimination. Whether the
laws on abortion are tilted towards assistance of married females and
prejudiced against unmarried females who might have conceived as a result of live-in
partnerships, casual sexual encounters, incest or insufficient mental capacity
(lunacy etc.) to make that decision. The issue will further take the road of
empowerment of women and whether such limitations on abortion are a hindrance
to it.

This
paper will explore the prevalent law on abortion in India, the pitfalls of the
existing law and discuss right to abortion as a human right along with judicial
decision to develop a commentary on the rising contemporary significance of
abortion related issues.

The
social, cultural and religious fibre of India is predominantly patriarchal
contributing extensively to the secondary status of women.  The patrilineal social structure based on the
foundation that the family runs through a male and makes male a precious
commodity that needs to be protected and given special status.  Another important pillar of the patriarchal
structure is marriage wherein women are given subordinate status having no say
in the running of their life or any control over their body or bodily
integrity.  All of this has contributed
to a low status for women in the society to such an extent that even the birth
of girl child in a family is sought to be avoided.

Female
foeticide is one extreme manifestation of violence against women.  It is a practice that involves the detection
of the sex of the unborn baby in the womb of the mother and the decision to
abort if the sex of child is detected as girl. 
Compared to infanticide, foeticide is probably a more acceptable means
of disposing off the unwanted girl child.

Female
foeticide is now more widespread in the country than ever before. The practice
which was restricted to few states a few years ago has now spread all over the
country. Accessibility to sex determination and safe medical termination of
pregnancies has aggravated the problem. Also the combination of patriarchy and
feudalism embedded in the fabric of our society has made matters worse. Dowry
system and poverty also play a crucial role in the community’s preference for a
male child. Today the declining sex ratio should not be looked upon as
something natural or as a sudden change. It is a problem of growing magnitude
and needs to be understood in all its social and cultural implications. An
attempt is being made through this study to discuss some of the important
issues related to this barbarism.

Sex selective abortion is a fairly
recent phenomena but its root can be traced back to the age old practice of
female infanticide.  In the late
eighteenth century, infanticide was initially documented by British officials
who recorded it in their diaries during their travels.  Even though there existed penal provisions in
the Indian Penal Code from Sections 312 to 316 pertaining to forced
miscarriage, the abnormal sex ratio of 940 women to 1000 men prompted British
to pass the Infanticide Act in 1870. Violence against women will reach
unprecedented levels in the coming years. 
Imbalance in sex ratio will increase immorality and heighten
prostitution.

The
gross misuse of technological advancement aggravated the problem of female
foeticide and ultra sound machines that were earlier used for other medical
purposes were being used to determine the sex of the child.  To arrest this evil, the Forum against Sex
Determination and Sex Pre Selection (FASDSP), a broad forum of feminist and
human rights groups, was formed in 1984 and it lobbied for legislation to ban
the practice. In 1988, the state of Maharashtra, passed the Maharashtra
Regulation of use of Prenatal Diagnostic Techniques Act, 1988, banning prenatal
diagnostic practices. could become criminals and indulge in socially disruptive
behaviour that could destroy the fabric of Nation and result in increase in
anti-national activities.

1.1      STATEMENT OF THE PROBLEM

India
is still a male dominated place. There have been a lot of sex selective
abortions for the want of male children. We do have a bunch of laws to prohibit
female feticides but they lack in implementation. Due to lack in its
implementation our sex ratio is deteriorating. Also girls have to face discrimination
throughout the circle of their life. Female feticide is also a infringement of
fundamental right to equality.

The cases and issues
pertaining to medical termination of pregnancy, including the ones reaching the
Supreme Court, are on a steady rise in India. With the advancement of science
and technology, parents are now more aware of the potential physical and/or
mental problems that the foetus may have to endure. Then there are issues as to
whether or not a pregnant woman should have complete autonomy over her body
pitched against the right of the unborn child to actually be born. The law
relating to abortion in India continues in its current shape appears to be
ill-equipped to handle these complex issues. 

 

1.2      OBJECTIVES OF STUDY

The present legal regime is not sufficiently equipped to counter the
problem of sex selective abortions. There has to be more stringent laws for
curbing the menace of female feticide and on the top of it biting teeth of
legislation shall be sharp enough.

The
study makes an attempt:

Ø  To
undertake a study of the law of abortion in India.

Ø 
To explore various socio-legal issues
touched upon by this subject.

Ø 
To provide appropriate legislative
and judicial recommendations, arrived at after the research.

Ø  To analyse and evaluate the legal provisions regarding sex selective
abortions.

Ø  To analyse the causes for growth of female foeticide in India.

Ø  To analyse the judicial response towards the problem.

Ø  To study the effectiveness of the various laws in curbing female foeticide.

 

 

1.3 SCOPE OF THE STUDY

The scope of the study would be limited to the Indian MTP Act, 1971,
with a special focus on sections 3 and 5 of this Act. A comparative study would
be undertaken for which medical termination of pregnancy of a few select
countries falling under each criteria of limit of viability,2 will be perused. Judicial decision of India and some of these
countries will also be examined. To understand and explore the jurisprudence
surrounding the issue of medical termination of pregnancy, the works of some of
the jurists belonging to Positivist School and Natural Law School, will be
studied.

 

1.4      HYPOTHESIS

The
existing laws are insufficient to keep a check on sex selective feticides and
hence some new laws needs to be there and effective implementation of existing
laws shall be secured.

Ø 
Removing the upper limit of viability
in toto for medical termination of
pregnancy will be in better interest of the pregnant mother as well as the
foetus.

Ø 
The preconditions in the current
legal framework (Act and the proposed Bill) need to be revisited taking into
consideration the modern day scientific advancements.

1.5
RESEARCH QUESTIONS

Whether there is a need to increase or totally do
away with the upper limit of medical termination of pregnancy by amending the
MTP Act?
Whether the Amendment Bill of 2014, caters to the
deficiency of the MTP Act by relaxing the upper limit of termination of
pregnancy?
Whether the preconditions associated with the
medical termination of pregnancy such as, grave injury to the physical or
mental health of the pregnant woman, immediate threat to her life, serve
any purpose in this day and age? Or are they an unnecessary restraint on
the choice of the pregnant woman?

1.6      RESEARCH METHODOLOGY

The research shall be
doctrinal in nature. For primary sources, the researcher shall analyse the
Indian Parliamentary debates, statutes such as MTP Act and PCPNDT Act, the
proposed Amendment Bill to the MTP Act of 2014, Law Commission of India
Reports, other specialized committee reports, abortion related statutes of the
countries that would be finally shortlisted for a comparative analysis,
judgments of various courts. For secondary sources, books and article, both
domestic and foreign, will be perused.

The
research shall be doctrinal. Research method will comprise of study of the
primary sources and secondary sources of information available in the various
libraries. Primary source of research shall comprise of legislations: The
Indian Penal Code – Sections 312 to 316, The Medical Termination of Pregnancy
Act, 1971 and The Pre Conception and Pre-Natal Diagnosis Technique (Prohibition
of sex-selection) Act, 1994; Census and Government reports. The secondary
sources will comprise of Books, Articles, Reports, Journals, Websites
discussing the issue involved. To ascertain the actual position and
effectiveness of law, a study of the decided cases and various reports will be
undertaken.

1.7
LITERATURE REVIEW

There had been no major
developments in the law of abortion in India up until the year 2014. In this
year, a Bill was brought in to bring the MTP Act at par with the changing
requirements of the society, however, this Bill is to-date pending in the
Parliament and has not been passed. From a reading of secondary sources, an
understanding regarding the existing laws in India as well as foreign
jurisdictions, in the socio-legal context, can be developed.

Women & Law by Krishna Pal Malik, provides a
clear understanding of the fundamental concepts of abortion law in India. Books
such as The Abortion Debate by
Courtney Farrell, are especially helpful in comprehending the sensitivity of
subjects like the ‘pro-life’ and ‘pro-choice’ debate. Abortion – Global viewpoints edited by Noah Berlatsky assists in
the comparative study of abortion law with additional reference to social
contexts. Sex-selective Abortion in India
edited by Tulsi Patel, highlights the practice of female foeticide rampant in
various Indian states and appears to be a helpful source when this issue will
be dealt with in the research. Abortion and
Woman’s Choice- The State, Sexuality and Reproductive Freedom by Rosalind
Pollack Petchesky provides a deep insight into the tussle between the State and
the right of a woman to reproductive freedom. A Theory of Unborn Life- From Abortion to Genetic Manipulation by
Anja J. Karnein appears to provide a solution for the problems that haunt
debates on abortion but also, and with particular force, controversies arising
in the context of new biomedical technologies, including stem cell research,
preimplantation genetic diagnosis (PGD), and genetic manipulation.

Further, secondary sources
such as Abortion Policy in India –
Lacunae and Future Challenges which is a publication authored by
Siddhivinayak Hirve on behalf of CEHAT (Centre
for Enquiry into Health and Allied Themes) provides a good insight into the
prevalent abortion law in India, the legal and social challenges. American
Report Series titled “Gestational Limits on Abortion in the United States
Compared to International Norms” by Angelina Baglini appears to helpful in
gathering secondary data relating to international standards regarding upper
limits of abortion across different jurisdictions. It will be useful in the
comparative analysis of this issue. “Limits of Viability – Definition of Gray
Zone” an article authored by Seri and J Evans explores the current limits of
infant viability, the data in the literature on survival and long-term
neurodevelopmental outcome in very preterm neonates. “The Natural Law
Philosophy of Lon L. Fuller in contrast to Roe v. Wade and Its Progeny” by
Thomas W. Strahan analyses the legal theories of Lon L. Fuller (1902-1978) as
contrasted with the legal framework adopted by the U.S. Supreme Court in Roe v.
Wade and its progeny. “Kantian Moral Philosophy and the Morality of Abortion”
by Ronni McCoy, discusses the morality of abortion through the lens of Kantian
moral philosophy. It addresses Kantian themes such as the Supreme Principle of
the Doctrine of Virtue, as well as perfect and imperfect duties to oneself and
to others. These articles will be helpful in understanding the philosophy
surrounding the issue of abortion.

1.8      CHAPTERISATION

Chapter
1- This chapter deals with the Introduction. It will define the meaning of the
term ‘Female Foeticide’. This chapter will put up the deteriorating effect of
the sex selective abortions in India and on the matter that women have been the
subject of deprivation, discrimination, intimidation, and unjust treatment in
society throughout history. The difference is only in the forms that differ
from time to time and from society to society. Women are considered inferior,
given secondary status, subjugated to the male, subjected to various ordeals
and deprived of the basic right of existence.

Chapter
2-The second chapter deals with the various factors which are responsible for
the female foeticide. The causes of female foeticide are embedded deep in the
edifice of society. It is necessary to change the mind set of people and enable
them to throw off the yoke of unhealthy and inhuman traditions. Here, they are
required to liberate themselves from ruthless and detrimental traditional bonds
and develop humane qualities in the true sense. This chapter dealt with the
various factors which are responsible for the female foeticide and its
consequences. It delineated that if this malpractice is not checked it will
have far- reaching consequences in the future.

Chapter 3- This chapter traced the legal
framework which includes Indian Penal Code and other legislations for curbing
the menace of female foeticide and their level of  their implementation.

 

Chapter
4- This chapter brings the statistical data which shows the disproportion among
the sex selective abortions in India. It shows that female foeticide is an ever- growing menace in Indian societies. Censuses and
surveys bring about seriously threatening statistics and figures. These figures
are seriously startling and establish this issue as a major cause of worry.
These statistics are enough to set alarm bells ringing, and inevitably call for
immediate and severe action.

Chapter
5- This chapter deals with the Jurisdictive effect and other studies
illustrated the terrible impact of sex selection in India over the last two
decades. The Judicial interpretation of the provisions has been a mixed bag. It
has been difficult to get a conviction and where such conviction has been
recorded, the Courts have been very lenient in granting of punishment; thereby
allowing the persons to come out and repeat the heinous acts without spending
enough time in prison in realization as to the injury caused to the person and
to society at large and thereby defeating the very purpose of awarding such
punishments.

Chapter
6- The Last chapter includes the summation and suggestions.

1 S.3(2) Explanation 2, MTP Act.

2 Legal systems which permit abortion without conditions restraining
this right of the woman, which do not permit abortion at all, which permit
abortion in limited circumstances such as a threat to life of the woman and/or
the child.