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CHAPTER I

INTRODUCTION

Every year, as millions of women marry, they dream of starting a family, of having their
homes filled with tiny cries and the happy laughter of gurgling babies. In India, however,
pregnancy is too often followed by the question of whether the unborn child is a girl or a
boy.

The number of female children in India is diminishing, due to sex discrimination and
sex determination. Without a strong female population, the country’s trafficking and
child bride rates are bound to increase.1

An estimated 700,000 girls are killed in India each year, some 7 million over the last
decade; these numbers are tantamount to genocide. The government needs to implement
effective enforcement and punishment systems to deter offenders.

1.1 RESEARCH OBJECTIVES OF FEMALE FOETICIDE

Following are the research objectives of female foeticide:

a. To study the perception of parents related to female foeticide, declining sex ratio
and to find out causes and ill effects of female foeticide.
b. To examine the misuse and impact of Pre-Natal Diagnostic Techniques.
c. To find out whether the Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994, has been effectively implemented.
d. To examine whether the prohibition of Sex Selective Abortion is in conflict with
the Right to Abortion.
e. To examine the role of government and non-governmental organization for
effective implementation of the Act.
f. To suggest the measures that have been required to tackle the problem of Sex
Selective Abortion.

1
http://unsettledcity.wordpress.com/2011/05/29/in-india-rates-of-female-feticide-reach-a-dangerous-
tipping-point/ - Last visited on 25th March, 2014.
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1.2 HYPOTHESIS OF THE STUDY

The Pre-Conception and Pre-Natal Diagnostic techniques (Prohibition of Sex Selection)

Act, 1994, has failed to achieve its objectives due to the ineffectiveness of the
enforcement agencies. Lack of accountability and proper monitoring authorities, along
with the ill maintained records is also one of the factors that led to the failure of the Act.

The mind-set of the people, patriarchal society, along with the cultural, religious and
economic factors and the unconcern of the medical practitioner led to the failure of the
effective implementation of the Act.

1.3 SCOPE AND IMPORTANCE OF THE STUDY

The scope of the study is to examine the effective implementations of the Pre-Conception
and Pre-Natal Diagnostic techniques (Prohibition of Sex Selection) Act, 1994, and to find
out what are the reasons behind to misuse the technologies. It is also observed, whether
the Act has been able to reduce the problem of Selective Sex Abortion and female
foeticide.

It also analyses the various intricacies arises in enforcing the Act and the reason that
hampers the implementation of the Act. It also deals with the role of judiciary and non-
governmental organization and its contribution for the effective implementation of the
Act.

Along with the Pre-Conception and Pre-Natal Diagnostic techniques (Prohibition of Sex
Selection) Act, 1994, and other Indian Legislation relating to the reproductive rights, it
also made a comparative study on the legislation of various countries on the termination
of the pregnancy.

Due to the advancement of the science and the technologies, new development has been
made for the welfare of the mankind. But, human being is using these useful technologies
for fulfilling their own personal requirement. When, the technologies such as
amniocentesis, a technique that can determine genetic abnormalities at the pre-natal
stage, which can also, determine the sex of the foetus has been misused for the sex
selection of the foetus.

The misused of the technology has led to the sex selective abortion, when the foetus is
found to be a female. Such an act is a great threat to the life of the female as they are
deprived of the right to be born alive and led to the imbalance in the male-female ratio in
our society. Violence against the women, such as rape, sexual violence and other illegal
activities will increase when the female ratio is less than the male.

Due to misuse of the technologies, government of India has enacted a legislation to

prevent the misused of the pre-natal diagnostic techniques and to regulate its use for the
 Page |3

medical purpose only. The Pre-Conception and Pre-Natal Diagnostic techniques

(Prohibition of Sex Selection) Act, 1994, is a positive step on the part of the government
which can be beneficial to the society only if it is effectively implemented to serve its
objective. Along with the legislation there is responsibility of the people to stop the
female foeticide and to protect the rights of the women.

1.4 RESEARCH METHODOLOGY

The method adopted by the researcher is doctrinal research. It is based on the

authoritative judgement of Supreme Court and various High Courts, Statute,
authenticated text books, various research articles. The researcher has also collected
information from the secondary sources such as information provided in the internet, as
well as on the information gather from doctors, who specifically deals with the Pre-Natal
Diagnostic Techniques and Medical Termination of the Pregnancy.

1.5 GENERAL

Today, the world is confronted with many dilemmas affecting the life and health of the
people. With the introduction of new technologies, and the advent of globalization,
privatization and liberalization these problems have aggravated. The technological
advancements appear to be doing harm rather than bringing benefit to the human society.
The situation becomes difficult when law instead of controlling the situation, creates an
opportunity for the perpetrators to misuse and abuse technology. The technological
advancements in bio-medical and genetic field have been misused to eliminate the girl
child.

One of the most common and simple mechanism of eliminating the girl child is ‘Female
Foeticide’. It is the act of determing the sex of the child in the womb and if it is found to
be a female; to get the same aborted. ‘Foeticide’ means the destruction of the foetus at
any time prior to birth; the act by which criminal abortion is produced. ‘Infanticide’
means the murder or killing of an infant soon after its birth and is regarded as murder in
law2. ‘Foetus’ means an unborn human from after the third month of Pregnancy until
birth.3 It has been followed by the people all over the world for a long time in one form or
other due to one or the other reasons.

"ChhorePeBajeThali, ChhoriPeThekerePhoren" is an old sentiment in the Indian state of

Haryana which means “announce the birth of a son by beating of brass plates but at the
birth of a daughter break earthen pots”. Marriage in the Hindu fold of life is still
traditionally considered essential for procreation and the continuation of the ‘vansh’
(lineage). Blessings showered on the bride during a wedding, consist of the line "Ashta

2
Black’s Law Dictionary, Published by St. Paul, 5th edition, 1984.
3
LexicanWebstor, Dictionary, Deliar Publishing Company, 1986, p.359.
 Page |4

Putra SowbhagyavatiBhave" meaning “May you be blessed with eight sons”. Thereafter
on conception, mantras from the Atharva Veda, one of four most sacred books of
Hinduism, are prescribed for chanting so that if the foetus is female it will be transformed
into a male4.

Violence against women is a universal phenomenon and one facet of this violent is pre-
natal discrimination. Our country has a long and unfortunate history of sex discrimination
and use of ultra sound scanning, invitrofertilization etc. has aggravated the situation.
Girls not only face inequality and inequity but they are now even denied the right to born
if their families do not wish their women folk to deliver baby daughters. Despite the legal
emancipation of women in India, their education and employment in modern occupation,
the traditional bias against female children has not undergone a substantial change.5

Female foeticide is an ever-growing menace in Indian societies, and there is ample

evidence. Censuses and surveys bring about seriously threatening statistics and figures.
According to the latest Census 2011, the overall sex ratio in India is 940 females per
1000 males. A deficit of 60 females per 1000 males, translates into a deficit of about 37
million (3.7crore) females in India – and that is a huge figure. In a natural world,
without sex selective abortion, the sex ratio should be approximately 980 females per
1000 males (this is evolution’s way of correcting for the higher infant mortality rate in
boys, than girls, so the sex ratio is balanced by the onset of early adulthood in females –
amongst several other factors). There are 12 million less females in India than there
should be.6

Lurking in the provisional population data, however, is a deeply disturbing set of

statistics: a steep fall in the child sex ratio, which measures the number of girls for every
1,000 boys in the 0-6 year’s age group. The sex ratio in the 0-6 age group has been
continually declining since 1961 but the fall from 927.31 in 2001 to 914.23 in 2011 is
the worst since Independence. This trend and scale of decline in rising India is
shocking. It can only be explained by the deadly application of the ‘son preference' on a
growing scale — through the instrumentality of sex-selective abortion, or female
foeticide. Attempts to tackle female foeticide through bans on sex-determination tests
imposed by the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse)
Act have been largely ineffective.7 On the other hand, sex ratio of 7+ year population has

4
Dr. GurusamyS.,”Girl Child”, p.no.41, published by S.B. Nangia, A B H Publishing Corporation, Darya
Ganj, 2007.
5
Speech by Governor of Jharkhand, on “Rights of Girl Child and future implication of inbalance of sex
ratio”, 20th August, 2010 at C.C.L. Auditorium, Darbhanga House, Ranchi. Available At:
http://rajbhavanjharkhand.nic.in/sp200810.pdf
6
http://femalefoeticideinindia.wordpress.com/2013/03/01/sex-ratio-dwindling-numbers/ , Last Visited on
20th March, 2014.
7
“Mixed news from Census 2011”, The Hindu, 1st April, 2011. Available At:
http://www.thehindu.com/opinion/editorial/mixed-news-from-census-2011/article1591977.ece
 Page |5

improved from 933 to 940, and 940 and 944 respectively during the two decennial
periods.

In most parts of the country son is a major obsession. One son is a cause for joy while
two are seen as a lifetime for celebration, the traditional thinking being that if one dies, at
least the other will live to take care of the parents. In the bargain, pressures on the woman
to produce a son are unending. The girl child is seen as an economic loss as her marriage
and dowry crushes her family under huge burden of debts.8

Women who constitute half a human population have been discriminated, harassed and
exploited irrespective of the country to which they belong, unmindful of the religion
which they profess and oblivious of the timeframe in which they live 9. The killing of
women exists in various forms in societies the world over. However, Indian society
displays some unique and particularly brutal versions, such as dowry deaths and sati.
Female foeticide is an extreme manifestation of violence against women. Female foetuses
are selectively aborted after pre-natal sex determination, thus avoiding the birth of girls.
As a result of selective abortion, between 35 and 40 million girls and women are missing
from the Indian population. In some parts of the country, the sex ratio of girls to boys has
dropped to less than 800:1,000. The United Nations has expressed serious concern about
the situation.
The long standing tradition of son preference, coupled with medical technology now
gives to the status conscious Indian families, the choice between payment of large dowry
for their daughters or elimination of daughters. The traditional method of getting rid of
the unwanted girl child was female infanticide, where the female baby was done away
with after birth in various ways – either by poisoning the baby or letting her choke on
husk or simply by crushing her skull under a charpoy. With the advancement of medical
technology sophisticated techniques can now be used or rather misused, to get rid of her
before birth. Through ultrasound scans and amniocentesis, the sex of the foetus can be
determined during the pregnancy of the woman and then the foetus is aborted if found to
be female.10
In Indian society, female foeticide has emerged as a burning social problem during the
last few years. The girl child in India is treated right from her birth as an additional
burden an extra mouth to feed, a liability and another man’s property. The birth of a son
is regarded as essential in Hinduism and many prayers and lavish offerings are made in
temples in the hope of having a male child. To deprive women arbitrarily of their rights
and privileges, or to deprive them to even being born or killing them in infancy is both

8
http://shodhganga.inflibnet.ac.in/bitstream/10603/8562/9/09_chapter%204.pdf , Last Visited on: 26th
March 2014.
9
Dr. Jena K.C., “Heirship of Women under Indian Personal Laws. A comparative study”, Ph.D. Thesis
(1998).
10
Mehta Swati and Kothari Jayna, “It’s A Girl ! Pre- Natal Sex Selection and the Law”, Lawyers
Collective, November 2001.
 Page |6

immoral and unjust, a violation of God’s law. It has a detrimental effect on the society
and the individuals who are involved in this practice are responsible for such acts.11
Contemporary Indian society acknowledges an intellectual confidence in every
individual's 'right to life and dignity´. The rights relating to the weaker & vulnerable
sections of Indian society especially women and more specially the girl child were
contaminated. Violence against women exists in various forms, in all societies, the world
over12.
No doubt, if this practice continues it will disturb the social balance and it may lead to
serious problems like increase in sexual offences, sharing of women within and outside
wedlock and greater insecurity to women13.

1.6 HISTORICAL EVOLUTION OF FEMALE FOETICIDE

The status of women in India has been a chequered one as it has seen many ups and
downs. In the ancient times, in all patriarchal societies the son was valued and desired
more than daughters because he was considered a permanent economic asset for the
family, since he lived with his aged parents and did not migrate to another family after
marriage like the daughters. Practical considerations and rituals make a boy’s birth
essential whereas both in terms of practicalities and rituals, a girl’s birth is seen to entail
expenses and problems in future.14 It is a well-known fact that certain families in India
did not like the daughters to be added to their families. The daughters were killed
immediately after her birth, by dashing their heads with force against the stones or rocks.
That system has gone but still there are examples when for the family it is a great
occasion for a son’s birth but not for a daughter’s. There was no reference to eliminating
the daughters at birth in the ancient Vedic Period. In Vedas, in case where the child in
embryo of a Brahmin woman is destroyed before the sex of the child can be ascertained
the person causing such destruction is called Vrunaha. ‘Vrunaha’ is the greatest sinner.15 .
In the VEDIC Age 1500-1000 BC, they were worshipped as goddesses. In the Muslim
age 1026-1756 AD their status suffered a sharp decline and in the British regime they
were looked down upon as ‘slaves of slaves’.16

The practice of infanticide or the willful killing of new born babies was widely accepted
among ancient and pre-historic people as a legitimate means of dealing with unwanted
children. The same has taken the shape of foeticide with the latest scientific and
11
Bahais View Point, PUCL Bulletin September 2001.
12
Save Girl Child Mission, “Female Foeticide: Save Girl Child Mission”, Available At: http://savegc-
mission.weebly.com/female-foeticide.html , Last Visited on: 30th March, 2014.
13
SrivastavaAlka, “Declining Sex ratio: The marginalized Girl Child”, Women’s Lint Vol. 8, No. 1,
January March -2002.
14
Singh J.P. The Indian Women – “Myth and Reality” ; Godavari D Patil and MadumatiPatil“Girl Child a
study in Familial and Societal Negligence”, p. 110, Gyan Publishing House, New Delhi, 1996.
15
Mitter D.N., “The Position of women in Hindu Law”, p. 66, Inter-India Publications, New Delhi, 1984.
16
Sachdeva, D. D. R. (1998) “Social Welfare Administration in India”, KitabMahal, Allahabad.
 Page |7

technological instruments.17 Gender discrimination was strongly dictated in Manu’s

Code, according to which a female is under the custody of males from womb to tomb.
According to him, a man cannot attain ‘Moksha’ unless he has a son to light his funeral
pyre. A male offspring alone guarantees moksha. A man “wins both worlds through a son
an gains eternity through a grandson”. Manu says a woman who gives birth to only
daughters may be left in the eleventh year of the marriage. In the patriarchal society like
India greater importance is given to a male child. A female child is not only considered a
liability, but mothers who give birth to daughters only , do not get much respect in the
family as compared with those who give birth to male child.18

Female foeticide was under practice in India in Medieval age. But it was limited to some
communities only. In that period marriage of a girl was very costly and if a girl remains
unmarried due to the lack of money it was considered the worst thing. It was also a
violation of religion, so the girl children were killed who they were in mother’s womb.
This was carried out in Rajput community. The worst things were that the girls were left
unfeed or mothers would apply opium on their breast and would kill the girl children.
These things were practiced in Raj Kumar and Rajbansi community in Varanasi in 1789.
Under the rule of 1795 and 1804 killing girl child was declared to be an offence but still
it was practiced in Rajput community in Kachha and Gujarat. Near about 20,000 girls
would be killed from 1, 25,000 families. The Lord General of India Hording tried to stop
this custom but he could not stop it completely. Even in Independent India many rules
and laws have been brought to stop this heinous deed but it is proved futile. Still the
people of India have not changed their mentality19.

From 1901 to 1931:

The archival sources and census data since 1931 census certainly indicate that in Gujarat
and in the North Indian states, which according to the latest census have an alarming low
ratio of female children. There are various castes which practice female infanticide even
after the Female Infanticide Act was passed in March 1870, in view of the repeated and
unfailing record of low ration of female children in the castes, the census enumerators
started saying that these castes have a tradition of female infanticide. Thus the census of
India Report for 1931 provides statistics for three decadal censuses from 1901 to 1931.20
It is not difficult to surmise that the dominant castes in rural north India and in Gujarat,
which in the past tried to maintain their dominance through female infanticide, are
continuing the same strategy through female foeticide to the advances in medical
technology.
17
BaruahArunima, “Crimes againsiChilder”, p.9, Kalpaz Publications, New Delhi, 2002.
18
Madhuria, “Violence against women, Dynamics of Conjugal Relations”, p. 84-85, Gyan Publication
House, New Delhi, 1996.
19
http://www.theglobaljournals.com/ijar/file.php?val=Nzg2 , Last Visited on: 13th March, 2014.
20
Viswanath L.S. , “Female Foeticide and Infanticide”, Economic and Politically Weekly, New Delhi,
September 1, 2001
 Page |8

From 1970s to 1990s:

In 1970s, Abortion was not unknown then, and laws abortion had already been written by
the British but the idea caught on then.Family planning was making its way inroads, and
it was widely accepted that the root too many major social and economic issues India was
facing at the time, was due to its growing population. The preference for a male child was
predominant in families, but the common practice then was for the woman to conceive
till she got a male child. This practice was seen as a threat and the cause for the growing
population. As a solution to this, government hospitals started aborting female
foetuses. This would result in the couple getting the male child they wanted, and not
needing to have any female children in the process. The equipment and procedures at the
time were however complicated, and not really risk-free. However, the pace increased
after almost a decade-and-a-half, when by the late-1980s and the early 1990s,
ultrasound techniques gained popularity in India. The idea caught on, and soon spread to
hospitals all over India21.
According to the 1981, census report there were 933 women per 1000 men, and 47 %
literate men compared with 25 % of women who were literate. Dowry deaths, child
marriages, the perpetuation of widowhood and the preference for a son continue to have
social sanctions. As for the child marriages, out of the total of 321 million females, 147
million or 47 percent were married, and of these 2.63 million or 1.79 percent were in the
age group of 10-14 years. In the rural areas, out of 115 million married females, 2.42
million or 2.41 percent were aged between 10-14 years .In the urban areas the figures are
relatively smaller, out of 32.14 million, 0.68 percent in the age group of 10-14 years22. In
1998, India has total population of 980 million of, which 470 million consist of women23.
However soon, some activists opposed this practice, and in 1994, the Indian government
passed the Preconception and Prenatal Diagnostic Techniques (PCPNDT) Act, making
sex- selective abortion illegal. However, it was too late, and as has been throughout
history, merely making it illegal did not stop it.
In 1996, the world health assembly recommended the fact that violence against women is
a Public Health problem and female foeticide is one preposterous demonstration of
violence against women. India is a country of 102.7crore population, out of which
53.1crores is of males and 49.6crores is of females, clearly indicating a deficit of 3.5crore
women24.

21
http://femalefoeticideinindia.wordpress.com/2013/03/02/history-tracing-its-roots/ , Last Visited on: 26th
March, 2014.
22
GhanshamMonaniDevaki, “Female Foeticide and Dowry System in India”, Prepared for Townsville
International Women's Conference July 2002.
23
United Nations (2001). Available At: www.un.org.rights/dpl
24
BalaSaroj (Dr.), “Female Foeticide: Causes and Consequences” , International Indexed, Refereed
Research Journal, ISSN -2250-253X, (Print), E- ISSN -2320-544X, Issue-5, Vol-I, May, 2013.
 Page |9

Sex Ratio from 1991 to 2001:

The sex ratio for the total population has increased from 927 females per 1000 males in
1991 to 933 in 2001. However the sex ratio for the population of female children up to 6
years has declined from 945 in 1991 to 927 in 200125.
Now, with the advancement in technologies, and development of easier, and cheaper
techniques, female foeticide has spread throughout India, and sex determination tests are
a very common practice during pregnancy – abusing the technology which is supposed to
be used, only if there are chances of the infant contracting any hereditary genetic
disease or disability. And today, it is no secret, and one can clearly see where this
immoral solution to a wrongly-identified problem, has led us to.

1.7 EVIDENCES OF FEMALE FOETICIDE

1. INDIA26

With the increased availability of modern sex determination techniques, such as

amniocentesis, ultrasound and trans-varginal probes, sex-selective abortion has become
common in most of India’s big cities. In 1990, there were 25 million more males than
females in India and by 2001, the gender gap had risen to 35 million. Experts now
estimate that it may reach 50 million.

Compared to 1991 when only two districts – Salem and Bhind – had an adverse female
sex ratio, as many as 51 districts in India now have more male babies born compared to
female, according to UNICEF. “In 80 per cent of districts in India, the situation is getting
worse”.27

 According to the UNEPA 2003 statistics. There were 770 girls counted for every
1000 boys in the district of Haryana (one of India richest states), 814 girls in
Ahmadabad, and 845 in South-West Delhi.
 According to the Christian Medical Association of India28 in New Delhi when the
third child coming after 2 previous girls is a female foetus, 70% of them are
aborted leading to 219 girls for every 1000 boys born. When the first child born is
a girl, the birth ratio becomes 558 girls born for every 1000 boys.
 According to the British medical journal “The Lancet” (9 January 2006). Over 10
million female fetuses (1 in every 25) have been aborted in India since 1994. The
25
Supra 23
26
“A GIRL’S RIGHT TO LIVE : Female Foeticide and Girl Infanticide”, Working Group on the Girl Child,
NGO Committee on the Status of Women – Geneva, Conference of NGOs with Consultative Status with
the United Nations (CONGO), Available At:
http://www.wunrn.com/news/2007/03_07/03_12_07/031707_female.pdf
27
UNICEF: 2007 World’s Children Report.
28
AntoAkkara, “Christian forum alarmed at Female Foeticides in Indian capital”, Ecumenical News
International, 18th July, 2005.
 P a g e | 10

journal also reports that prenatal sex-selection in India causes the loss of 500,000
girls per year.

2. CHINA

“Ever since ancient times, there has been a saying that the three most delightful moments
in one’s life come with success in the imperial examination, marriage and the birth of a
son”.29

In Confucianism, sons (and particularly the eldest) are responsible for the ancestor’s cult.

There are 80 million one-child families30 and the son preference is particularly prevalent
in rural areas, which has led to forced abortion and sterilization. China remains unwilling
to give up one-child policy despite the recognition that it make the problem worse to
abort female fetuses.

In 2000, 138 boys were born for every 100 girls in the provinces of Jiangxi and
Guangdong, which is 30% above the biological norm.

3. CAUCASUS

Before the collapse of Soviet Union in early 1990s, the birth sex ratio in Caucasus
countries such as Azerbaijan, Armenia and Georgia was in the 105 to 108 range. After
the collapse, the birth sex ratios sharply climbed and have remained high for the last 20
years.31 In Christian Armenia and Islamic Azerbaijan currently more than 115 boys are
born for every 100 girls, while in Christian Georgia the birth sex ratio is about 120, a
trend claims The Economist that suggest sex-selective abortion practice in Caucasus has
been similar to those in East Asia and South Asia in recent decades.32
In 2005, 115 boys were born for every 100 girls in Azerbaidjan and respectively 118 and
120 boys for 100 girls in Georgia and Armenia. This points to an alarmingly increasing
trend in female foeticide given that in 1995 the biological birth ratios in these countries
were recorded as stable.

4. SOUTHEAST EUROPE
According to Eurostat and birth record data over 2008-2011, the birth sex ratios
of Albania and Montenegro are currently 112 and 110 respectively.33 In recent years, the

29
Historical Chinese Marriage Customs in Travel China Guide, last updated, 25 December, 2006.
30
Xinhua, “Gender Imbalance in Birth rate”, 12 July 2006.
31
France MESLE, Jacques VALLIN, Irina BADURASHVILI (2007).“A Sharp Increase in Sex Ratio at
Birth in the Caucasus. Why? How?.Committee for International Cooperation in National Research in
Demography”.P. 73-89 ISBN 2-910053-29-6.
32
Gendercide in the Caucasus. The Economist (September 13, 2013).
33
Sex Imbalances at Birth: Current trends, consequences and policy implications, United Nations FPA
 P a g e | 11

birth registration data for Macedonia and Kosovo indicate birth sex ratios above 108; for
example, in 2011 the birth sex ratio was 108 in Macedonia, while in 2010 the birth sex
ratio for Kosovo was 112.34 Scholars claim this suggests that sex-selective abortions are
becoming common in southeast Europe.35
5. UNITED STATES
Like in other countries, sex-selective abortion is difficult to track in the United
States because of lack of data. However, based on the sex ratios in the United States, it is
certainly rare for the population overall. Abrevaya (2009) found that among firstborn
children in the U.S., the sex ratio is the normal 102-106 males per 100 females. However,
he also found that among some Korean, Chinese, and Indian parents with one daughter,
the sex ratio is 117 and when they have two daughters, the ratio is 151.36
While the majority of parents in United States do not practice sex-selective abortion,
there is certainly a trend toward male preference. According to a 2011 Gallup poll, if they
were only allowed to have one child, 40% of respondents said they would prefer a boy,
while only 28% preferred a girl.37 When told about prenatal sex selection techniques such
as sperm sorting and in vitro fertilization embryo selection, 40% of Americans surveyed
thought that picking embryos by sex was an acceptable manifestation of reproductive
rights.38 These selecting techniques are available at about half of American fertility
clinics, as of 2006.39
However, it is notable that minority groups that immigrate into the United States bring
their cultural views and mindsets into the country with them. A study carried out at a
Massachusetts infertility clinic shows that the majority of couples using these techniques,
such as Pre implantation genetic diagnosis came from a Chinese or Asian background.
This is thought to branch from the social importance of giving birth to male children in
China and other Asian countries.40
Because of this movement toward sex preference and selection, many bans on sex-
selective abortion have been proposed at the state and federal level. In 2010 and 2011,

(August 2012)
34
Ibid
35
Stump, Doris (2011), “Prenatal Sex Selection”, Committee on Equal Opportunities for Women and Men,
Council of Europe
36
Abrevaya, Jason. "Are There Missing Girls in the United States? Evidence from Birth Data." American
Economic Journal: Applied Economics 1.2 (2009): 1-34.
37
Newport, Frank. "Americans Prefer Boys to Girls, Just as They Did in 1941." Gallup, 23 June 2011. Web.
2 Nov. 2013.
38
Jesudason, Sujatha, and AnatShenker-Osorio."The Atlantic."The Atlantic. N.P., 31 May 2012. Web. 03
Nov. 2013
39
"Half Fertility Clinics Allow Parents to Pick Gender", Msnbc.com. Associated Press, 20 Sept. 2006.
Web. 03 Nov. 2013
40
Savior Siblings: Is PGD Being Regulated?. (2009, June 29). Savior Siblings. Retrieved September 23,
2013, Available At: http://ourethicaljourney09.blogspot.ca/2009/06/is-big-brother-watching-pgd-
regulations.html
 P a g e | 12

sex-selective abortions were banned in Oklahoma and Arizona, respectively. Legislators

in Georgia, West Virginia, Michigan, Minnesota, New Jersey, and New York have also
tried to pass acts banning the procedure.41
6. OTHER COUNTRIES
A 2013 study42 by John Bongaarts based on surveys in 61 major countries calculates the
sex ratios that would result if parents had the number of sons and daughters they want. In
35 countries, claims Bongaarts, the desired birth sex ratio in respective countries would
be more than 110 boys for every 100 girls if parents in these countries actually get a
gender what they hope for (higher than India’s, which The Economist claims is 108).
Abnormal sex ratios at birth, possibly explained by growing incidence of sex-selective
abortion, have also been noted in some other countries outside South and East Asia.
According to the 2011 CIA World Fact book, countries with more than 110 males per
100 females at birth also include Albania and former Soviet republics
of Armenia and Azerbaijan. A 2005 study estimated that over 90 million females were
"missing" from the expected population
in Afghanistan, Bangladesh, China, India, Pakistan, SouthKorea and Taiwan alone,and
suggested that sex-selective abortion plays a role in this deficit.43 India's 2011 census
shows a serious decline in the number of girls under the age of seven - activists believe
eight million female fetuses may have been aborted between 2001 and 2011.44
Sex-selection practices also occur among some South Asian immigrants in the United
States: A study of the 2000 United States Census observed definite male bias in families
of Chinese, Korean and Indian immigrants, which was getting increasingly stronger in
families where first one or two children were female. In those families where the first two
children were girls, the sex ratio of the third child was observed to be 1.51:1 in favor of
boys.45

41
Supra 38
42
John Bongaarts (2013) , “The Implementation of preferences for male offspring, Population and
Development review”, Volume- 39, Issue 2, pg. 185-208, June 2013.
43
A. Gettis, J. Getis, and J. D. Fellmann (2004). “Introduction to Geography”, Ninth Edition. New York:
McGraw-Hill. pp.200. ISBN 0-07-252183-X
44
Pandey, Geeta,”India’s unwanted girls”. BBC News Retrieved May 23, 2011.
45
Roberts, Sam (June 15, 2009), “U.S. Births Hint at Bias for Boys in Some Asians”, The New York Times.
Retrieved May 23, 2010
 P a g e | 13

CHAPTER II

THE CONCEPT OF FEMALE FOETICIDE

Female foeticide is aborting the female baby in the mother’s womb. Foeticide is the
legacy and contribution of the progress made by the medical science. Amniocentesis was
introduced in 1975 to detect foetal abnormalities but it soon began to be used for
determining the sex of the baby.
Prenatal diagnosis is testing for diseases or conditions in a fetus or embryo before a
foetus or embryo before it is born. The aim is to defect birth defects such as neural tube
defects, down syndrome, abnormalities, genetic diseases and other conditions, such
as spin bifida, cleft palate, Tay Sachs disease, sickle cell anaemia, thalassemia, cystic
fibrosis, Muscular dystrophy, and fragile X syndrome. Screening can also be used for
pre-natal sex discernment. Common testing procedures
include amniocentesis, ultrasonography including nuchal translucency ultrasound, serum
marker testing, or genetic screening. In some cases, the tests are administered to
determine if the foetus will be aborted, though physicians and patients also find it useful
to diagnose high-risk pregnancies early so that delivery can be scheduled in a tertiary care
hospital where the baby can receive appropriate care46.

With the advent of privatization and commercialization, the use of pre-natal diagnostic
technologies is growing into a thriving business in India. This is primarily for the purpose
of sex determination selective abortion of the female foetus. The misuse of technology
simply reinforces the secondary status given to girl children in such a way that they are
culled out even before they are born47.

Therefore, Female Foeticide is the illegal practice of killing a foetus which is determined
as a female. Some medical practitioners are making high incomes by determining pre-
natal sex of the child and aborting foetus on the will of the parents. The practice is
unlawful and demands strict punishment in form of fine or jail to the person requesting
abortion of the unborn girl child as well as to the practitioner who gets the sex
determined.

46
http://en.wikipedia.org/wiki/Prenatal_diagnosis , Last Visited on: 13th March, 2014
AnandMeenu, “Indian Legal Framework to Arrest Female Foeticide” ,Legal News & Views, September
47

2005.
 P a g e | 14

Some kind of complications in pregnancy can also demand surgical termination of

pregnancy after eight weeks of conception. This is where the termination or abortion is
legal and doctors may have to suggest and opt for discontinuance of pregnancy for the
sake of health of the mother carrying the unborn child.
Abortion of female foetus is an act of murder. God is the author of life and nobody
should have the right to take it. Some women themselves are in favour of getting their
female foetus aborted through surgery which is a shameful act and must be condemned.
A girl is forced to undergo multiple pregnancies and (or) abortions, until she fulfills her
lifelong goal of being a breeding machine that produces male offspring as per the needs
of the family48.

Female feticide is the selective abortion/elimination of the girl child in the womb itself,
done deliberately by the mother, after the detection of the child’s gender through medical
means. This is usually done under familial pressure from the husband or the in-laws or
even the woman’s parents. Unplanned pregnancy is generally the reason behind abortion.
However, female feticide is a far more heinous sin than the age old practice of killing an
unwanted child, even before it’s born. Sadly, a majority of female feticide cases involve
an enthusiastic participation of women, both old and young49.
Therefore, Female foeticide is the elimination of female foetus. It is also defined as
aborting the female foetus after sex determination test or prenatal diagnostic test which
includes50:
1. Ultra sonography,
2. Foetoscopy,
3. Placental tissue sampling, and,
4. Amniocentesis.
Feticide or foeticide as a legal term refers to the deliberate or incidental killing of a
foetus due to a human act, e.g. a punch or kick in the abdomen of a pregnant woman.
Foetcide is the destruction of a fetus in the uterus. In a legal parlance, "fetal homicide
refers to the deliberate or incidental killing of a fetus due to a criminal human act, such as
a blow to the abdomen of a pregnant woman51. Feticide is the act or the instance of
killing a fetus by assaulting and battering the mother. Feticide is an intentionally induced
miscarriage. As a medical term, feticide is the destruction of a fetus. For example, a
legally induced abortion during the first phase of pregnancy amounts to feticide.
However, feticide will not include a miscarriage of pregnancy52. It does not refer to the

48
Global Girl Power : Together We Are Stronger, “Female Foeticide”.Available At:
http://globalgirlpower.org/what-is-female-feticide/
49
Sheikh Usman, LohiyaAshutosh, YadavPrashant and Niturkar D. Yogesh, “Stop female feticide: Save
girl & save your relation”, International Conference and Exhibition on Traditional & Alternative Medicine,
December 09-11, 2013, Radisson Blu Plaza Hotel, Hyderabad, India.
50
http://savegc-mission.weebly.com/female-foeticide.html , Last Visited on: 20th March, 2014.
51
US legal Definition, Available At : http://definitions.uslegal.com/f/foeticide/
52
Ibid
 P a g e | 15

death of a fetus from entirely natural causes or through the spontaneous abortion of a
pregnancy where the life of the fetus could not be maintained artificially ex utero53.
Infanticide means unlawful destruction of a newly born child and is regarded as murder
in law54.

Foeticide is punishable as a crime in many jurisdictions. In the USA, more than half of
the states have criminalized feticide, although feticide associated with a legal induced
abortion is not a crime. In India, the term is used to refer to the widely condemned
practice of killing female fetuses in an effort to secure male offspring while not having
too many children.

Sex-selective abortion55 is the practice of aborting a fetus after a determination (usually

by ultrasound but also rarely by amniocentesis or another procedure) that the fetus is an
undesired sex. Sex selective infanticide is the practice of selective infanticide against
infants of an undesired sex.

Sex-selective abortion was rare before the late 20th century because of the difficulty of
determining the sex of the fetus before birth, but ultrasound has made it easy. However,
prior to this, parents would alter family sex composition through infanticide. It is
believed to be responsible for at least part of the skewed birth statistics in favor of males
in Mainland China, India, Taiwan, and South Korea. Although the practice is often
illegal, laws against it are extremely difficult to enforce because there is often no
practical way to determine the parents' true motivation for seeking an abortion. This also
makes the issue a difficult one to study, as people will never discuss the issue openly with
strangers56.

2.1 TECHNIQUES OF SEX DETERMINATION:57

Development in science has opened new vistas of knowledge and technological

advancement has made the life of human being more comfortable. Infant and child death
rates have considerably reduced, average life expectancy has increased and the
percentage of rural families with access of safe water has health services have increased,
since the end of Second World War. As medical advances are concern, new techniques
were devised for preventing the genetic chromosomal disorders of the child in the womb.
With these technologies and machinery it became possible to ascertain the sex of the

53
http://feticide.askdefine.com/ , Last Visited on : 20th March, 2014.
54
Parikh C.K., Parikh’s Text Book of Medical Jurisprudence Forensic Medicine and Toxicology, p.no.72,
C.B.S. publishers and distributors, 2000.
55
Richard Skolnik, “Essential Public Health, Global Health 101”, p.418, Richard Riegelman, 2nd edition.
56
Deshpande JD, Phalke DB, Phalke VD, “Pre-natal Sex Detemination: Issued and Concern”, volume-
1(1), Commentary, 2009.
57
Info: Brochure, “Female Foeticide Issues and Concern”, Stella Maris College, Chennai.
 P a g e | 16

child in the womb every at very early stages of pregnancy with almost cent percent
accuracy.

Different methods used to know the pre-natal abnormalities and sex of foetus are:

1. Chorion villous biopsy

2. Aminiocentesis
3. Ultrasonography

CHORION VILLOUS BIOPSY

Chorionic villus sampling (CVS) is a test done on some pregnant women. The test
is done to screen your baby for genetic problems. This test can be performed in the first
7-11 weeks of pregnancy. A plastic cannula is passed through the cervix up to abiotic sac
and a few chronic cells, which occur at the site of future placenta, surrounding the sac,
are aspirated under ultrasound vision. These cells are cultured in a specific solution. This
technique is used to diagnose some inherited diseases such as thalassaemia, cystic
fibrosis and muscular dystrophy etc. these diseases affect tissues and organs, which
develop after the first few weeks. It is possible to diagnose the congenital defects in an
unborn foetus.

AMINOCENTESIS

Aminocentesis is the oldest procedure for pre-natal diagnosis. It has been in use for 100
years. By this test certain genetic defects and sex of the unborn baby can be determined.
It is procedure in which 15-20 ml of amniotic fluid is taken out. The genetic disease or
defect cab be ascertained or analyzed by chromosomal studies. The process can be
performed between 14 to 16 weeks of pregnancy and has nearly 1-2 per cent risk of
abortion.

For accurate determination of the sex of the foetus, the cells have to be cultured for 3
weeks; else inaccuracy rate is 10-20 percent. It is useful tool to detect fetal abnormalities
such as mongolism, haemophilla, retarted muscular growth, Rh incompatibility and other
gender related disorders. This test is normally used for woman after 35 years of age when
incidence of Down’s syndrome babies and deformed children increase.

ULTRASONOGRAPHY

It is the most commonly used test in the modern times. It is an imaging technology where
the image or photograph of an organ or tissue is obtained by using ultrasound. This
technology uses the ‘eco’ of sound waves to visualize the form of the fetus in the womb
as early as from 11 to 14 weeks after conception. Through this method, it is possible to
diagnose 50 percent of the abnormalities related to the central nervous system. This
 P a g e | 17

technology gained immense popularity in India, to determine the sex of the foetus. If the
foetus is female, an abortion is carried out.

The chance of accurate prediction is 95 to 96 percent in this test, depending upon the
expertise of the ultrasonologist. As pregnancy advances, the chances of accuracy also
increase.

Although these tests are meant to diagnose possible hereditary diseases and congenital
defects in a foetus, in today’s scenario these technologies are largely used to know the
sex of an unborn child. Out of malafide intentions, the accuracy date of such tests at that
particular point of time is not explained to the victim. These tests have certain
complications and risks as bleeding, spontaneous abortion, introduction of an infection
and anaemia. But the irony of the situation is that these complications are hardly ever
explained to the couple or if explained the victim overlooks them58.

 ABORTION AND ITS CLASSIFICATION

Abortion or miscarriage means the spontaneous or induced termination of pregnancy

before the foetus is independently viable, which is usually taking as occuring after the
28th week of conception59. Abortion means the expulsion of the products of conception at
any period of gestation before full term60.

Classification of Abortion:

Abortions are classified into two groups:

1. Those which occur natuarlly or spontaneously and are known as natural, and
2. Those which occur as a direct result of interference with the pregnancy, and are
known as artificial.

Artificial abortions may be either

a. Legal or justifiable when performed accordance with legal provisions, and

b. Criminal when performed otherwise.

Natural (Spontaneous) Abortion

The incidence of spontaneous abortion is 10% to 15% for all pregnancies. Abortions are
most frequent within the first three months of pregnancy, owing to the slight attachment

58
Sharma Sanjaya, Associate Prof. Medical College, “Female Foeticide and its various critical aspects” ,
p. 6, Jhansi, workshop report held on 10 th March 2002.
59
Modi’s Medical Jurisprudence and Toxicology, edited by Subramanyan B.V., p. 581, New Delhi: Butter
Worths, 2001,.
60
Parik C.K., “Parikh’s Text Book of Medical jurisprudence Forensic Medicine and Toxicology”, p.56, BS
Publishers and Distributors, New Delhi, 2000.
 P a g e | 18

of the ovum to the uterine wall. Within the first few weeks, the ovum being very minute,
is cast off without being recognised or abortion being suspected. Women might go one or
two weeks over their time and then often have what is supposed to be merely a more than
usually profuse period. These are probably instances of such early spontaneous abortions.

The causes of spontaneous abortion are classified as those which are directly referable to
the mother and which affect the foetus.

1. Causes directly referable to the Mother:

a. Actuate infections, such as pneumonia, typhoid and psyelonephiritis occasionally
lead to abortion, as also chronic wsting disease, for example, tuberculosi, cancer
and hypertension.
b. Disease affecting the blood, such as anemia, jaundice and rhesus sensitively, ABO
incompatibility is also known to cause abortion.
c. Those acting through the nervous system for example, psychic trauma, sudden
shock, fear, joy, sorrow, reflex action from irritation of the bladder , rectum or
mammac.
d. Abnormalities of reproductive organs.
e. Physical trauma which separates the ovum.
f. Lead, copper and mercury poisoning.
2. Causes affecting the Foetus:
a. Death of the foetus due to genetic abnormality, hormonal imbalance, syphilis,
foetal anaemia and ither disease.
b. Diseases of decidua and fibrinoid necrosis.

Induced Abortion (Therapeutic)

This is also known as justifiable abortion, the induction of which is justifiable only when
caused in good faith to save the life of the woman (Section 312 and 315 IPC) if it is
materially endagered by the continuance of pregnancy, but not to save the family honour
or for any other ethical or economic reasons61.

DIFFERENT METHODS OF ABORTION62

Although there are innumerable methods employed for procuring foeticide, but (Suction
Evacuation), Dilatation and Curettage and use of hypertonic saline are commonly used in
our country.

Methods employed depending upon their gestational age of the foetus:

61
Supra 15.
62
Laurence H. Encyclopedia of Gynecology, by Thomas Nelson Publishers: Ontorio, U.S., 1999, p. 232-
247
 P a g e | 19

During First Twelve Weeks:

i. Suction Evacuation
ii. Dilation & Curettage
iii. Use of Prostaglandins

Between 12 to 20 week:

i. Use of Hypertonic saline or M-Cradle

ii. Use of Prostaglandins
iii. Use of Oxytocin
iv. Hysterotomy (Mini Caesarean)

During First Twelve Weeks:

i. Suction Evacuation:

In this procedure, a plastic or a metal tube is introduced into the uterus and negative
pressure is applied with the help of a suction machine and uterine contents are sucked out
in pieces, through the tube.

ii. Dilation & Curettage:

Most commonly employed method when foeticide is being performed by Medical

Professionals. In this procedure, firstly the uterine opening is dilated with help of a dilator
or Leminaria tent and their uterine contents are taken out in pieces after curettage with
the help of a curette.

iii. Use of Prostaglandins:

Prostaglandins when taken in form of tablet orally or in injection form or kept in the
vaginal tract induces severe uterine contractions. Due to these untimely uterine
contractions the placenta gets separated from the uterine wall leading to loss of blood
supply to the foetus. As a result foetus dies, which to expelled out from the uterus.

Pregnancy Between 12 to 20 weeks:

i. Use of Hypertonic saline or M-cradle:

In this method a long needle is inserted into the uterine cavity through abdominal wall
and hypertonic saline or M- cradle is injected. Due to these, the fetus dies in the womb
and because of increase of uterine pressure the dead foetus is expelled out.

ii. Use of Prostaglandins:

 P a g e | 20

When pregnancy is above 12 weeks the topical application of prostaglandin E2

intravaginally in a viscus base is an effective, safe and highly acceptable method. The
usual dose is 2.5 – 5 mg, which may be repeated after 6-8- hours if necessary. This
induces severe contractions in the uterus because of which the placenta separates, fetus
dies and is expelled out.

iii. Use of Oxytocin:

The synthetic preparation (Syntocinon) is widely used as intravenous drip infusion.

Oxytocin increases the intensity and frequency of uterine contractions and relaxation
thereby leading to expulsion of the foetus.

iv. Hysterotomy:

In this method fetus is taken out in the same way as it is taken out through caesarean
operation. Uterus is opened through abdomen by incising it and foetus is evacuated out.

2.2 FACTORS RESPONSIBLE FOR FEMALE FOETICIDE

Every unethical act, like this one, has some age-old lame reasoning behind it, which is
used as genuine justification by its staunch supporters. The root cause for female feticide
lies within the cultural norms as well as the socio-economic policies of the country where
this practice prevails. The popularity of female de-selection in India could be attributed to
socioeconomic reasons. There is a belief by certain people in India that female children
are inherently less worthy because they leave home and family when they marry. The
high number of "dowry deaths" (about 7,000 were reported in India in 2003),63 in which
brides are murdered by their grooms' family members or commit suicide after suffering
abuse and neglect, is also a major factor in gender preference.

The most infected are the South Asian countries like China, India, Vietnam, Korea etc.
from where this social evil has mushroomed today to the western nations like the USA
and Canada. This is the end result of immigration that has brought along female feticide
across the pond. What is the rationale, one may wonder. Surprisingly, the reasons aren’t
quite as diverse for these nations as one may perceive.

1. Dowry System

The dowry system was the root cause of female foeticide thus it should be treated first.
Dowry is the money, goods, or estate that a woman brings to her husband64. Dowry can
be defined as a forced financial and material arrangement to be given by the parents of

63
Ashish Bose (2001): “Without my daughter- killing fields of mind”, The Times of India, Mumbai, 24 th
April 2005.
64
Merriam Webster, Available At : http://www.merriam-webster.com/dictionary/dowry
 P a g e | 21

the bride to the parents of the groom or the bridegroom himself as an essential condition
of the marriage.
The evils of the dowry system have left some Indian couples with a marked preference
for sons. Worried by soaring marriage costs, the girl child is still unwanted by some
parents who opt for illegal prenatal sex-determination tests just to abort the female fetus.
Children are linked to the dowry system, as parents have to save up money and goods
that will constitute the dowry, nearly as soon as their child is born. Some families live in
poverty and make great sacrifices just to have a good dowry and marry their girls65.

2. Preference for the male child:66

Elimination/removal of girls from the family tree even before they are born clearly
indicates the vehement desire for a boy child. In the countries where female feticide has
become unbridled, the core factor is the need to continue the family line through the male
born into it. Sons are seen as the main source of income. Even though women today can
easily rub shoulders with men, almost in every field they set their mind to, the common
misconception still remains that it is the male who will help run the house, and look after
his parents. Once married, women are like cargo, ready to be shipped off to another
household, while parents breathe a sigh of relief for a job well done in getting their
‘daughter’ settled.

In India, the age old custom of dowry system puts a damper on the parents’ spirits who
are ‘blessed’ with a girl child. Right then and there, begin the calculations associated with
marriage expenses, which may happen after a couple of decades, following the child’s
first breath. A lump sum paid to the daughter in twenty years when the currency value
may depreciate and inflation may skyrocket is seen as a tragedy waiting to happen. It
would be so much better to get rid of them with just a fraction of the amount.

3. Deteriorated Status of Women:67

Males are the stronger sex when it comes to the pecking order in a country, but that does
not entail a curbing of rights for women. Rather than whining about the denied
opportunities, women should stand up and try to grasp the chances they want for
themselves.

However, this Utopian scenario is not quite easily achieved in practice. Centuries of
repression has made inferiority second nature to most women. They willingly embrace
the role of the meek, submissive, docile wife who works relentlessly to cater to the

65
http://www.youthengage.com/wp/what-can-we-do/harmful-traditional-practices/ , Last Visited on: 3rd
April, 2014.
66
Sharma Tony, “Female Feticide: Causes, Effects and Solution”, Updated on: 25/05/2013, Available At :
http://kapilmohit-com.webnode.in/news/female-feticide-/
67
Ibid
 P a g e | 22

whims of her husband. The worst enemy of a woman is the woman herself. Female
feticide happens with the explicit consent of the mother. While most mothers-to be agree
to this misdeed out of a sense of duty to the family, there are many who take the initiative
themselves.

The socio cultural utility factor of female deselection is that, as in China, in India's
patrilineal and patriarchal system of families is that having at least one son is mandatory
in order to continue the familial line, and many sons constitute additional status to
families.

Females are vulnerable to brutalities of the male in the forms of physical, mental and
sexual assaults and traumas in the patriarchal societal structure of India. Females are
subjugated, condemned, and deprived in sphere of life. Every parents of a girl child is at
risk for their daughter in this patriarchal society for the mentioned causes. Again for the
funeral ceremonies of the parents, presence of a son is a must. According to Manu, A
man cannot attain moksha (redemption) unless he has a son to light his funeral pyre. In
old age the sons will care for them believably. These socio-rituals factors including
illiteracy and orthodox society norms lead to crave for a male baby, discarding the
females one after another.

4. Industrial Growth: 68

Industrialization of the health sector has further strengthened the selective sex abortion
quarter. With the advent of CVS, amniocentesis and Ultrasound, sex determination of
the fetus has become much easier than it was earlier. This goes on to show how the
manufacturers of high-tech equipments and gadgets, used to run these tests, benefit from
the woes of future parents and their unborn child. Many hospitals are known to sign long
term contracts with the firms involved in the production of these types of medical
machinery. Often, a healthy percentage of the profit is shared with the hospital and both
parties enjoy the fruits of rewarding a death sentence.

As opposed to CVS and amniocentesis, the ultrasound technology is cheaper and within
easy reach of the lower economically backward strata of society. It is also easily
accessible in a hospital/clinic nearby with mediocre credentials.

Unfortunately, the probability of accuracy of the ultrasound is not always 100 per cent
until the fetus is twenty weeks old. Consequently, the child aborted by those enthusiastic
parents may just be the little prince they were hoping for.

68
Ibid
 P a g e | 23

5. Economic Utility:69

The factor as to economic utility is that studies indicate that sons are more likely than
daughters to provide family farm labor or provide in or for a family business, earn wages,
and give old-age support for parents. Upon marriage, a son makes a daughter-in-law an
addition and asset to the family providing additional assistance in household work and
brings an economic reward through dowry payments, while daughters get married off and
merit an economic penalty through dowry charges.

The Female Foeticide in the 21st century has a great deal to do with capitalist modernity.
There are aspects of it lying behind these phenomena.
i. For rural households with landed property there is a clear inverse correlation
between the income level and child sex ratio. It is especially evident in South
India. Again there is gender based wage level. For the same work females are
paid less remuneration. In most cases, women enter in the domestic non-paid
services which a patriarchal society gives little or no value at all, so they are
regarded as liability than assets.
ii. Cultural politics of dowry in the Indian society have a lot of answer for this
pernicious phenomenon. Since the turn of century the recorded dowry deaths
are increasing. Nearly 7-8000 per year brides are murdered for the lack of full
payment of dowry. Nearly 3-5000 brides are committing suicides for dowry.
Brides are thought as commodities and the pre marriage and marriage have
been described as ‘consumption oriented reproductive journey’. When the
reproductive practices make daughters into such economic burden, the threat
of having to amass dowry is motive enough to dispose female commodities
(Barbara Harriss-White, 2009)
iii. The female foeticide has been commodified. It has started to become a field of
accumulation in its own right. MaliniBhattachgarya, the member of the
national commission for women, admitted that in the era of liberalisation “one
has to allow freedom of choice to the service seeker and the freedom to sell by
the service provider”. Foeticide may cost one or two month’s earnings, while
dowry requires mobilisation of several years’ income. Hence there appears
equilibrium between service seeker and provider. For these economic reasons
females are not desired.

6. Religious Functions:70

The factor of female deselection is the religious functions that only sons are allowed to
provide, based on Hindu tradition. Hindu tradition says that sons are mandatory in order

69
Ibid
70
Ibid
 P a g e | 24

to kindle the funeral pyre of their late parents and to assist in the soul salvation. . Religion
based myths:

It is also argued, that some of this has bases in religion too. For example, according to
Hindu scriptures, it is a male who'll light the funeral pyre of his dead parents. However,
in reality this does not explain the cause for this foeticide. No Hindu scripture or religious
text asks to kill a female child or foetus. On the other hand, Hindu books, Rig Veda, for
example, hold women in a much respected light. Many women, in these texts, were
highly regarded and respected. It is unjustified and unfair to point a finger at religion as a
cause for female foeticide, for it our (mis)interpretations and understandings that are at
fault.

7. Technological factors:71

Female foeticide is a latest trend of long established gender bias. We are civilized with
time and our killing female babes have also been civilized. The presence of low-cost
technologies like ultrasound, have led to sex-based abortion of female fetuses, and an
increasingly smaller percentage of girls born each year.

8. Population Policy: 72

Indian family planning policies promote a two-child family and health workers say this
often leads to abortion of female foetuses in efforts to have a "complete family" with at
least one son.

9. Growing medical facilities and foul medical ethics:73

The opening conversation to this hub satisfactorily covers this point. With the
legalization of abortion in India, illegal sex determination and termination of pregnancies
has become an everyday reality. The professionals in the medical field are only too glad
to help parents realize their dream of a healthy baby boy. Female feticide is openly
discussed amongst many in the healing fraternity and even pin boards outside certain
clinics read, ‘Pay Rs.500 ($ 10) today to save the expense of Rs. 500 000 ($ 10 000) in
the future’. The initial meager sum is the cost of a pregnancy termination, while the
bigger amount specified in comparison, is the expense that the family will be burdened
with in the form of dowry for the girl.

It is currently illegal to determine the sex of a child during pregnancy using ultra-sound
scans. Laboratories are prohibited to reveal the fetus's sex during such scans. While most
71
Ibid
72
Ibid
73
Ibid
 P a g e | 25

established labs comply with the law, determined persons can find a cheaper lab that
would tell them what they want. Like the Chinese, the Indians also use the post-natal
alternative, which is sex-selective infanticide. Some turn to people called Dais, traditional
midwives, historically female, who offer female deselection, letting the baby boys live
and killing the baby girls by giving them a sharp jerk, that is, turning them upside-down
and snapping their spinal cords, and then declaring them stillborn

2.3 ILL EFFECTS OF FEMALE FOETICIDE

It is estimated that by 2020 there could be more than 35 million young 'surplus males' in
China and 25 million in India74. As a crime against society it has a number of adverse
effects upon the society. It can be summarized as follows:

 In India, the number of girls per 1000 boys is declining with each passing decade.
From 962 and 945 girls for every 1000 boys in the years 1981 and 1991
respectively, the sex ratio had plummeted to an all-time low of 927 girls for 1000
boys in 2001. If that statistic is a matter of concern, the current figures are toeing
the danger line with only 914 girls for 1000 boys in 2011. In the case of China,
the sex ratio is an alarming 118 boys for 100 girls; that means 848 girls for 1000
boys. This is just an example of two nations trapped in the vicious circle. There
are many others struggling with a skewed sex ratio.
 Low female sex ratio will generate sexual starvation among the males and it will
help to flourish the business of prostitution and immoral trafficking. The increase
in prostitution will lead to spread of veneral diseases and would pose serious
problems like spread of AIDS etc. and ultimately the health of the society will be
spoiled
 Once women become an endangered species, it is only a matter of time before the
instances of rape, assault and violence become widespread. In the backdrop of
fewer available females, the surviving ones will be faced with the reality of
handling a society driven by a testosterone high. The legal system may offer
protection, but as is the situation today, many cases might not even surface for
fear of isolation and humiliation on the girl’s part.
 As a device of selective reproduction it will seriously upset the demographic
balance in the society and after a point of time, the number of females in the
society will be very few compared to that of male and consequently the society
will be male dominated.
 It will result in decline of values in the life and over all social degradation which
will in turn promote social evils like corruption, malpractice etc.

74
Kathryn Cullen, “Human Trafficking- Global Issues”, p. 210, Info base publisher, 2009.
 P a g e | 26

 The lesser number of women will cause a social pressure to produce more
children which would endanger the physical and mental health of the females.
 On account of repeated pregnancies, morbidity and mortality of women will
increase which will further reduce the number of women in the society.
 The reduced sex ration will result in the fewer number of marriageable women
and the institution of ‘polyandry’ will resurface and that would lead to tension in
families and later on in the society
 It would result in loose moral values.
 Women will not permit to go out of their houses on account of increased crimes
aginst them and consequently they will be deprived of better education,
employment opportunities and economic freedom.
 Continued practice of female foeticide will give rise to emergence of black market
in service and medical profession
 The ethical standard of medical profession will be given a go by which will affect
every branch of the profession and will lead to inflated fees.

Therefore, crime against women in the society has increased day by day because of
female foeticide. Female Foeticide is just one facet of the vast anti-women behavioral
spectrum in India.

Hence, nearly three-fourths of the women in the sub-urban area knew about the sex
determination test, and female foeticide is favoured both in rural and urban areas.
Women are aware of the health problems resulting from such decisions but favour it for
socio-economic reasons: a girl is considered as a liability on account of dowry; her
education does not add anything to the income of her parental family. A son is preferred
for social as well as economic reasons. The socioeconomic pressures are such that even
those who consider abortion to be a sin are prepared to abort a female foetus. The case
studies in the urban area reveal that middle class women of the area are obsessed with the
idea of a two-child family and that one of the two children must be a son.
Days are not so far, when there may be emergence of the situation where brides will not
be available for the marriage of the sons to maintain lineage and continue the human race
of even those people who believe on long standing tradition of son preference, that “only
sons can offer Pyre Pindadana, Mukhagni and not the daughters”. Therefore it is felt that
the mindsets of the people should be changed right from now towards the importance of
the girl child in the family in both rural and urban area. There is an urgent need to alter
the demographic composition of India’s population and to tackle this brutal form of
violence against women. The enactment of any law is not sufficient; laws must be
adhered to and applied rigorously, before any change in the status of women can take
place. In spite of the Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act
many incidences of female foeticide are taking place in India. There is still supreme
controversy as to who will serve as the watchdog to control the misuse of the practice of
 P a g e | 27

female foeticide. Promoting gender balanced society involves targeting behavioural

changes in society which in turn involves a long term community based intervention,
awareness programmes, programmes to promote girl children’s right, addressing myths
related to sons/ daughters and concerted efforts to change the mindset of people.

Apart from the above, a feeling has to be inculcated in the minds of the people that she is
the daughter, she is the sister, she is the mother and she is the life partner of a man.
 P a g e | 28

CHAPTER III

STATISTICAL ANALYSIS ON FEMALE FOETICIDE

“We detest daughters! We hate them so much that we kill them before birth. And we kill
them after birth! We kill them as they take their first breath. We kill them while they are
suckling infants. We kill them as they learn to walk. We kill them as they learn to talk
and say ‘mama’ and ‘baba.’ We kill them as they learn to smile and trust, and love, and
ask for their favorite foods – mangoes or sweets. We kill them as they learn to play with
their friends, and listen to stories about fairies, princesses, and far away dreams. We kill
them because we hate them. We kill our daughters in the millions.”

The data reveals that in the age group 0-6 years, the gender ratio is 914 girls to 1000
boys. Which means, for every 1000 boys, there are at least about 60-70 girls under
the age of 6 years who were killed before or within 6 years after birth75.
The child sex ratio data from Census 2011 brought the issue of imbalance in sex ratio to
centre stage in development debates. Child sex ratio is the number of girls to every 1000
boys in the 0-6 age group. The child sex ratio for 2011 was 914 girls to 1000 boys at the
national level. Many states and districts in the country registered a child sex ratio of less
than 900 girls to 1000 boys. Prenatal sex selection was considered as the leading cause
for the missing girls and an imbalanced child sex ratio. While child sex ratio is
principally determined by the sex ratio at birth, it is also influenced by a number of other
factors such as under-registration of girls, differential infant and child mortality, and age
misreporting. Therefore, imbalance in child sex ratio cannot be entirely attributed to the
practice of prenatal sex selection. The ‘sex ratio at birth’, defined as the number of girls
born for every 1000 boys born, is a more accurate and refined indicator of the extent of
prenatal sex selection.
This is the lowest gender ratio recorded since India’s Independence in 1947.

75
“We Are A Nation of Daughter-Killers, Affirms India’s 2011 Census”, updated on 1st April 2011.
Available At: http://genderbytes.wordpress.com/2011/04/01/we-are-a-nation-of-daughter-killers-affirms-
india%E2%80%99s-2011-census/
 P a g e | 29

3.1 STATUS OF WOMEN76

The adverse sex ratio has been linked with the low status of women in Indian
communities, both Hindu and Muslim. The status of women in a society can be
determined by their education, health, and economic role, presence in the professions and
management, and decision-making power within the family. It is deeply influenced by the
beliefs and values of society. Islam permits polygamy and gives women fewer rights than
men. Among Hindus, preference for the male child is likewise deeply enshrined in belief
and practice. The Ramayana and the Manusmriti (the Laws of Manu) represent the ideal
woman as obedient and submissive, and always needing the care of a male: first father,
then husband, then son.
The birth of a son is regarded as essential in Hinduism and many prayers and lavish
offerings are made in temples in the hope of having a male child. Modern medical
technology is used in the service of this religion-driven devaluing of women and girls.
Religion operates alongside other cultural and economic factors in lowering the status of
women. The practice of dowry has spread nationwide, to communities and castes in
which it had never been the custom, fuelled by consumerism and emulation of upper
caste practices. In the majority of cases, the legal system has no impact on the practice of
dowry. It is estimated that a dowry death occurs in India every 93 minutes.
The need for a dowry for girl children, and the ability to demand a dowry for boys
exerts considerable economic pressure on families to use any means to avoid having girls,
who are seen as a liability. Sonalda Desai has reported that there are posters in Bombay
advertising sex determination tests that read, ‘It is better to pay Rs. 500 now than Rs.
50,000 (in dowry) later’.
Women and Developments in Reproductive Technology Abortion was legalized in
India in 1971 (Medical Termination of Pregnancy Act) to strengthen humanitarian values
(pregnancy can be aborted if it is a result of sexual assault, contraceptive failure, if the
baby would be severely handicapped, or if the mother is incapable of bearing a healthy
child). Amniocentesis was introduced in 1975 to detect foetal abnormalities but it soon
began to be used for determining the sex of the baby. Ultrasound scanning, being a non-
invasive technique, quickly gained popularity and is now available in some of the most
remote rural areas. Both techniques are now being used for sex determination with the
intention of abortion if the foetus turns out to be female. These methods do not involve
manipulation of genetic material to select the sex of a baby. Recent preconception gender
selection (PGS), however, includes flow cytometry, preimplantation gender
determination of the embryo, and in vitro fertilization to ensure the birth of a baby of the
desired sex without undergoing abortion. In PGS, X and Y sperms are separated and the
enriched sperms are used to fertilize the ovum. The method was intended to reduce the

ManhasShashi and BanooJabina, “A Study of Beliefs and Perceptions Related to Female Foeticide
76

among Muslim Community in Jammu, Jammu and Kashmir, India”, Kamla-Raj, Jammu & Kashmir, 2013.
 P a g e | 30

risk of diseases related to the X chromosome, which are far more likely to occur in boys
than in girls (who have two X chromosomes). Ironically, it is being used in India to avoid
giving birth to girl children. Most of those in the medical profession, being part of the
same gender biased society, are steeped in the same attitudes concerning women. It is
scarcely surprising that they are happy to fulfill the demands of prospective parents.
Medical malpractice in this area is flourishing, and bans on gender selection, for example
in Maharashtra, have had little effect.

3.2 SEX RATIO AT BIRTH AS AN INDICATOR

Sex ratio is defined as the number of females per 1000 males in the population and is an
important social indicator to measure the extent of prevailing equity between males and
females in a society at a given point of time. It may be noted that the sex ratio is expected
to bealmost at parity in nature. In India, sex ratio is skewed in favour of males and has
continued to rise and expand in various forms. This has drawn wide attention of policy
makers and planners to reverse the trend to bring it back to parity77.
The U.N. Statistical Office and Population division points out those sex ratios in India
seem to suggest that it is an exception to the global rule that girls have a better survival
rate than boys, since they are biologically stronger. The sex ratio at international level is
an average of 1050 females for every 1000 males. In India, the sex ratio has steadily been
declining over the years with the last census showing a child sex ratio of 914 women to
1000 men. This indicates a significantly high number of “missing women”. “Missing
Women” denotes the difference between the expected and actual number of living
females. The following Table will show sex ratio as per the census in last four decades:

Figure 1: No. of females per thousand males in India – 1981 – 201178

77
http://censusindia.gov.in/2011-prov-results/data_files/mp/06Gender%20Composition.pdf , Last Visited
on: 1st April, 2014.
78
Registrar General of India, Reported in Health Statistic of India; Central Bureau of Health Intelligence,
Ministry of Health and Family Welfare, Government of India, New Delhi.
 P a g e | 31

A preliminary look at the census data of 2011 reveals a very serious scenario of the
worsening situation. The sex ratio in the country had always remained unfavourable to
females. The sex ratio of the child population (0-6) years has declined by 13 points at the
national level from 927 in 2001 to 914 in 2011.

In fact, all states and union territories except Kerala, Tripura and Mizoram have reported
fewer girls than boys less than six years.

The decline in the child sex ratio (CSR)79, as reported by the Census of India, from 945 in
1991 to 927 in 2001 and further to 914 females per 1,000 males in 2011 is cause for
concern and urgency. The situation has worsened.

The decline in CSR contrasts with the ‘good’ news from the Census of India of an
improvement in the sex ratio of the overall population (i.e., number of females for every
1,000 males) from 933 in 2001 to 940 in 2011. However, the nature and scale of the
problem remain extremely disturbing. The child sex ratio, while influenced by a number
of factors such as under-registration of girls, differential infant and child mortality and
age misreporting, is in large measure determined by the sex ratio at birth80. It is,
therefore, directly linked to the practice of prenatal sex selection, which, according to
available evidence, has spread all over India, including to rural areas that were previously
out of its ambit.

Table 1: States child sex ratio

S. No. States No. of females per

1000 males
1. Maharashtra 801
2. Punjab 832
3. Haryana 848
4. Jammu and Kashmir 873
5. Delhi 884
6. Rajasthan 877
7. Uttar Pradesh 870
8. Himachal Pradesh 942
9. Karnataka 943
10. Kerala 966

79
The Child Sex Ratio (CSR) is defined as the number of girls for every 1000 boys in the age group of 0-6
years.
80
There are no decennial census figures for Sex Ratio at Birth. However, three-year moving averages of the
sex ratio at birth are published annually on the basis of a sample survey by the Sample Registration System
(SRS).
 P a g e | 32

11. Chandigarh 985

A comparison of data from the Sample Registration System on the observed sex ratio at
birth with the normal sex ratio at birth highlights the scale of the problem. The sex ratio
at birth for the period 2008-10 was 905 as against the internationally observed normal sex
ratio at birth of 952 – pointing to the fact that far fewer girls are born for every 1,000
boys. The sex ratio at birth varies enormously across the Indian States. It ranges from a
low of 801 in Maharashtra 832 in Punjab, 848 in Haryana, 873 in Jammu & Kashmir, 884
in Delhi, 877 in Rajasthan, 870 in Uttar Pradesh and 942 in Himachal Pradesh, 943 in
Karnataka, 966 in Kerala and 985 in Chhattisgarh. It is noteworthy, that even as the
practice of pre-natal sex selection spreads, the sex ratio at birth in urban areas remains far
worse (898 for 2008-10) than for rural areas where it was 90781.

Maharashtra has once again brought back the focus to the problem of foeticide that are
not only prevalent but rampant in India. Last year’s appalling census figures rated
Maharashtra as having the worst child sex ratio amongst other Indian States (801 females
per 1000 males), blaming mainly the practice of Female Foeticide as the cause for this
declining trend. Census, 2011 has pegged the population of India at 1.21 billion (up to
17.4% from 2001) and has indicated that only 914 girls were born for every 1,000 boys in
the age group 0-6 years, compared with 927 for every 1,000 boys in the 2001 Census. An
improvement in the child sex ratio has been noted only in the State of Kerala overall in
the rest of India there is a decrease in the number of girls, with Maharashtra scoring the
least. Other offenders high on this list are Punjab, Haryana, Himachal Pradesh, Delhi,
Chhattisgarh, Jammu and Kashmir, Karnataka, Kerala and Rajasthan.

This is the worst child sex ratio in the history of our country since independence. This
steep decline can be linked to the ever growing preference for a male child. The selection
is done through either sex selective abortions or female infanticides82.

 TOP FIVE AND BOTTOM FIVE STATES IN INDIA83

Among the States/Union Territories the highest child sex ratio (0-6 years) is reported by
Mizoram (971), followed by Meghalaya (970), Andaman & Nicobar Islands (966),
Puducherry (965) and Chhattisgarh (964).

81
National Advisory Council, Recommendations for Improving the Sex Ratio at Birth.Available At:
http://nac.nic.in/pdf/gsr.pdf
82
MajumdarMaya , “Alarming Sex Ratio and the Problem of Female Foeticide and Infanticide in India”.
Available At: http://lawquestinternational.com/alarming-sex-ratio-and-problem-female-foeticide-and-
infanticide-india
83
Supra 3.
 P a g e | 33

On the contrary, states and union territories which have reported lowest child sex ratio (0-
6 years) are Haryana (830) followed by Punjab (846), Jammu & Kashmir (859), NCT of
Delhi (866) and Chandigarh (867).

Table 2: Top five States/UTs by sex ratio – 2011

S. No. State/UT Child Sex

ratio
1. Mizoram 971
2. Meghalaya 970
3. Andaman & Nicobar 966
Islands
4. Ponducherry 965
5. Chhattisgarh 964

Table 3: Bottom five State/UTs by Sex Ratio – 2011

S. No. State/UT Child Sex

Ratio
1. Haryana 830
2. Punjab 846
3. Jammu & Kashmir 859
4. NCT of Delhi 866
5. Chandigarh 867

The divide between the north and south has got even starker with the child sex ratio in
2011. With the exception of Himachal Pradesh, no state in north India now has a child
sex ratio above 900. Jammu and Kashmir has seen the most severe drop of 82 points in its
child sex ratio, making it the third worst state after Haryana and Punjab. In 2001, Jammu
and Kashmir had a better child sex ratio than the Indian average. Haryana (830) and
Punjab (846) remain at the bottom of the table, but have improved over 2001.
India's north-east seems to have a much healthier attitude to girl children than the rest of
the country: Mizoram, Meghalaya and Arunachal Pradesh have the highest child sex
ratios among the states followed by Chhattisgarh, Puducherry, Andaman & Nicobar and
Kerala.
The State/ UT which showed significant decline in child sex ratio during 2001-2011 are,
J&K (decline of 82 points), Dadra Nagar Haveli (decline of 55 points), Lakshadeep
(decline of 51 points), Maharashtra (decline of 30 points), Rajasthan (decline of 26
points), Manipur (decline of 23 points), Jharkhand (decline of 22 points), Uttarakhand
 P a g e | 34

(decline of 22 points), Madhya Pradesh (decline of 20 points). 8 State/UTs have shown

improvement in child sex ratio during 2001 -2011 with Punjab showing biggest
improvement among States /UT (increase of 48 points), followed by Chandigarh
(increase of 22 points) and Haryana (increase of 11 points) Himachal Pradesh 906
(increase of 10 points), A & N Islands (Increase 9 points), Mizoram (Increase of 7
points), Tamil Nadu (Increase of 4 points), Gujarat (Increase of 3 points).

3.3 RURAL URBAN DIFFERENTIALS IN CHILD SEX RATIO84

During 1991-2011, child sex ratio declined in both rural and urban India. Though, the
child sex ratio in rural India is 919 which is 17 points higher than that of urban India, the
decline in Child Sex Ratio (0-6 years) during 2001-2011 in rural areas is more than three
times as compared to the drop in urban India which is a matter of grave concern.
However, the gap in rural urban child sex ratio has been reduced from 27points in 2001
to 17 points in 2011.

Table 4: Child (0-6 years) Sex Ratio: 1991-2011 – India85

Census Year Total Rural Urban

1991 945 948 935
2001 927 933 906
2011 914 919 902

In the rural areas of 25 States/UTs, the Child Sex Ratio (0-6yrs) has declined in 2011
Census over 2001 Census, in 9 States/UTs Child Sex Ratio has improved in 2011 Census
and no change has been observed in one State (Gujarat ). Trend is slightly better in Urban
Areas as compared to Rural Areas as in 13 States/UTs Child sex ratio has improved, in
21 States/UTs, it has declined, and there is no change in one State (Kerala).
In the rural areas Child Sex Ratio is higher as compared to urban areas in 26 States/UTs
in 2011 Census. In urban areas of 9 States/UTs (Highly urbanized NCT Delhi,
Chandigarh, Puducherry, Punjab, Maharashtra, Andhra Pradesh and Tamil Nadu,
Mizoram & Manipur) Child Sex Ratio is higher when compared to their rural areas.
The variation in District level ranges of child sex ratio (CSR) is presented below, which
points towards the asymmetric pattern within States. In 2001, out of the 640 districts of
the Country, in 503 districts, child sex ratio ranged from 900 - 999, and in 109 districts it
ranged from 800 -899, But in 2011, in 444 districts, child sex ratio ranged from 900 -
999, and in 187 districts it ranged from 800 -899, clearly bringing out fall in the child sex

84
Smt.SunithaBhaskar, “CHILDREN IN INDIA 2012 - A Statistical Appraisal”, Social Statistics Division
Ministry of Statistics &Programme Implementation, New Delhi, 2012.
85
Source: Census, India, Office of Registrar General of India
 P a g e | 35

ratio across the districts of the Country. Decline in the number of districts in the lowest
range (<800) is due to increase in the child sex ratio in several districts of Punjab.

Table 5: Districts by ranges of Child Sex Ratio - India, 2001 & 2011

Ranges of CSR (0-6 years) 2001 2011

Total 640* 640
<800 18 6
800-849 36 52
850-899 71 135
900-949 224 266
950-999 279 178
1000+ 12 3
*O/o RGI generated 2001 results for the 640 districts of Census 2011

Compared to 2001, the number of districts in the lowest category of child sex ratio (<=
850) has increased in rural areas whereas the number of districts in this category has
declined in urban areas in 2011.

Table 6: Child Sex Ratio – Distribution of Districts in Rural and Urban India

Districts by ranges of Child Sex Ratio in Districts by ranges of Child Sex Ratio in
Rural Urban
India, 2001- 2011 India, 2001- 2011
Ranges of Census Years Ranges of Census Years
CSR (0-6 CSR (0-6
years) years)
2001 2011 2001 2011
Total 640* 640 Total 640* 640
Nil (No 9 9 Nil (No 18 9
rural) Urban)
Upto 850 54 74 Upto 850 86 59
851-900 61 188 851-900 110 121
901-999 500 363 901-999 417 447
1000+ 16 12 1000+ 9 4
*O/o RGI generated 2001 results for the 640 districts of Census 2011.
 P a g e | 36

In rural India, there are 74 districts with CSR < 850 in 2011, whereas, there were 54
districts in this group in 2001. Also in rural areas of 516 districts, sex ratio was above 900
in 2001, whereas only 378 districts fall in that group in 2011. In urban areas, decline in
CSR <=850 category at District level in 2011 is due to increase in urban sex ratio in 13
states, which is reflected in the increase in the number of urban districts in the category
CSR >850. These are positive trends unlike the situation in rural areas. During 2001-
2011, child sex ratio declined in 461 districts which is about three fourth of total districts
of the Country. In 38 districts, the decline in CSR has been more than 50 points. In 51
districts, there is increase in CSR with 20 or points.

Table 7: Change in Child Sex Ratio (0-6 years) 2001-2011- Districts86

Number of Districts
Total number of districts 640
Decline 461
More than 100 points 7
50 to 99 points 31
20 to 49 points 178
1 to 19 points 245
No Change 20
Increase 159
Up to 10 points 74
11 to 20 points 34
21 to 30 points 17
31 to 49 points 19
50+ 15

Due to decline in CSR (0-6 years) in majority of states/UTs (27) in 2011, the gap
between the results of Census 2011 and 11th Plan goals has further widened. Himachal
Pradesh and Andaman & Nicobar Island have achieved 11th Plan goals set for sex ratio
in the age group 0-6 years. Four states (Punjab, Mizoram, Tamil Nadu and Gujarat) are
close to the targets with difference of 1-5 percentage points.

86
Source: Census, Office of Registrar General of India
 P a g e | 37

3.4 TOTAL SEX RATIO FROM 2001 – 2026

The total population of India is increasing day by day till 2026. The total population in
2001 1,028,610 which is divided as 532,157 males and 496,454 females and 1,399,838 in
2006 which is divided as 725,176 males and 674,663 females. The number of females per
males is also declining. The situation will be worst by 2026.

Table 8: Projected Total Population by sex as on 1st March-2001-2026 India87

Year Persons Males Females

2001 1,028,610 532,157 496,454
2002 1,045,547 540,936 504,611
2003 1,062,388 549,671 512,716
2004 1,079,117 558,354 520,763
2005 1,095,722 566,976 528,746
2006 1,112,186 575,529 536,657
2007 1,128,521 584,019 544,501
2008 1,144,734 592,451 552,283
2009 1,160,813 600,816 889,997
2010 1,176,742 609,107 567,634
2011 1,192,506 617,316 575,191
2012 1,208,116 625,446 582,670
2013 1,223,581 633,505 590,076
2014 1,238,887 641,484 597,403
2015 1,254,019 649,374 604,644
2016 1,268,961 657,168 611,793
2017 1,283,600 664,802 618,799
2018 1,298,041 672,334 625,707
2019 1,312,240 679,741 632,500
2020 1,326,155 686,998 639,157
2021 1,339,741 694,080 645,660
2022 1,352,695 700,811 651,884
2023 1,365,302 707,355 657,947
2024 1,377,442 713,643 663,799
2025 1,388,994 719,606 669,388
2026 1,399,838 725,176 674,663

87
http://censusindia.gov.in/Census_Data_2001/Projected_Population/Projected_Population.pdf , Last
Visited on : 2nd April, 2014.
 P a g e | 38

3.5 SEX RATIO AT BIRTH IN DIFFERENT COUNTRIES

Sex composition of the human population is one of the basic demographic characteristics,
which is extremely vital for any meaningful demographic analysis. Indian Census has the
tradition of bringing out disaggregated information by sex on various aspects of
population. The first and foremost is the simple count of males and females. Changes in
sex composite on largely reflects the underlying socio-economic and cultural patterns of a
society in different ways. Sex ratio defined here as the number of females per 1000 males
in the population, is an important social indicator to measure the extent of prevailing
equity between males and females in a society at a given point of time. It is mainly the
outcome of the interplay of sex differentials in mortality, sex selective migration, sex
ratio at birth and at times the sex differential in population enumeration.
The sex ratio of a few countries is presented in Table 9 to understand the trend prevailing
in various parts of the world. Sex ratio of India is slightly better compared to China, the
most populated country. However, the sex ratio in the listed European, African and
American countries are comparatively better than India.

Table 9: Child Sex Ratio in different countries88

S. No. Country Sex Ratio

World 984
1. Russian Federation 1,165
2. France 1,056
3. Japan 1,054
4. Germany 1,038
5. United Kingdom 1,037
6. Brazil 1,031
7. South Africa 1,028
8. United States of America 1,026
9. Republic of Korea 1,020
10. Australia 1,011
11. Ethiopia 1,010
12. Indonesia 1,003
13. Nigeria 995
14. Malaysia 970
15. Iran 968
16. India 914
17. China 909
18. Saudi Arab 828

88
Source: World Population Prospects (midyear estimates), 2010 revision, Sex and age United Nation.
 P a g e | 39

As evident from the data discussed in this chapter, the latest trend in Child sex ratio and
sex ratio at birth are indicating a continuing preference for boys in society, despite laws
to prevent Female Foeticide and schemes to encourage families to have girl child.
Right to life is a human rights and the magnitude of this human rights violation is
building to a worrisome demographic imbalance with economic and social consequences
worldwide. Killing of girls in the most populated countries means fewer wives and
mother and in turn, fewer girls and mothers for future generations resulting into a greater
imbalance in the number of men and women in the world. Over 100 million women are
missing, which will result in a 12 to 15 % excess of young men in the next twenty years
and therefore a bride shortage. For example, between 2015 and 2030, 25 million Chines
will have no hope of finding a wife89.

89
Isabelle Attane. Une Chine sans Femmes?. Perrin, Paris 2005 and L’Asie manqué de Femmes, article
from Le Monde Diplomatique, July 2006.
 P a g e | 40

CHAPTER IV

INDIAN LAWS ON FEMALE FOETICIDE

In 1976, the Centre banned sex-determination tests in government facilities but not in the
private ones. In 1984, a broad-based coalition of women's groups, civil liberties groups
and health organizations established the Mumbai-based Forum against Sex Determination
and Sex Pre-selection and demanded a ban on sex determination tests for abortions90.

In 1988, Maharashtra Government enacted the Regulation of the Use of Prenatal

Diagnostic Techniques Act. Following this, the governments of Punjab, Gujarat and
Haryana passed similar laws.

In 1994, the Centre passed the Pre-natal Techniques (Regulation and Prevention of
Misuse) Act covering the entire country.

On January 1, 1996, the law came into operation. Under the Act, pre-natal diagnostic
scans are permitted solely to detect genetic abnormalities. The Act forbids sex
determination tests. It also prohibits any advertisements relating to Pre-natal
determination of sex and prescribes punishments for its contravention. The person who
contravenes the provisions of this Act is punishable with imprisonment up to five years
and fine up to Rs.50, 000.

In 2001, a Public Interest Litigation was filed with the Supreme Court. The Court
directed the State Governments to enforce the Pre-Natal Diagnostic Techniques Act and
file an affidavit indicating the status of action taken under the Act. It also directed nine
companies to provide details of ultrasound machines (11,200) sold to clinics in the last
five years. It asked medical associations such as the Indian Medical Association to
furnish details of the members using the machines.

Only in 2002, eight years after the Pre-Natal Diagnostic Techniques Act was passed, that
the Medical Council of India (MCI) -- authorized under Section 23 (2) of the Act to take
action against any erring medical practitioner -- recognized undertaking sex-
determination tests 'with the intent to terminate the life of a female foetus' as professional

90
The Hindu, online edition of India’s National Newspaper, 14 th December, 2014,Available At:
http://www.hindu.com/2003/12/14/stories/2003121400341400.htm
 P a g e | 41

misconduct. According to the Indian Medical Council (Professional Conduct, Etiquette

and Ethics) Regulations, 2002, published in the Gazette of India on April 6, 2002, sex-
determination without 'proper indication' can lead to de-registration and criminal
prosecution91.

The MCI92 code of conduct, while recognizing sex-determination as a punishable

offence, allows a huge leeway, since it is only sex-determination 'with the intent to
terminate the life of a female foetus' (who will question the doctor's intention?) and sex-
determination 'without proper' indication that is unacceptable. There is already enough
evidence to show that doctors are getting around these regulations, as well as the letter of
the law prohibiting the communication of the sex of the foetus.

Bringing into the ambit of the Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act 2003 Act, emerging techniques for pre-conception sex-
selection, such as sperm separation and pre-implantation genetic diagnosis, increasing the
fine and additional provisions for the suspension and cancellation of the registration of
violators, the law targets the medical profession: the so-called 'supply' side of the practice
of sex-selection. Manufacturers of ultrasound equipment are now required to sell their
products only to registered clinics, and all ultrasonographers now have to maintain
records of all tests conducted by them93.

Doctors have become greedy and are forgetting their social & ethical obligations and
took to way of criminals in promoting Pre-Natal Sex Determination and selective female
foeticide by collaborating unsocial community demand due to various factors – dowry,
Religious, son preference etc. and hence, their sentiments and feelings are exploited at a
premium. Throughout State awareness towards Gender Equality are generated in the
community & professionals through meetings, seminars, workshops and use of Print &
Electronic media.

For controlling the situation, the Parliament in its wisdom enacted the Pre-natal
Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. The Preamble,
inter alia, provides that the object of the Act is to prevent the misuse of such techniques
for the purpose of pre-natal sex determination leading to female foeticide and for matters
connected therewith or incidental thereto. The Act came into force from 1st January
199694.

91
Sharma Rekha (Justice),“Prevention Of Female Foeticide”, published by Delhi Legal Services Authority,
Patiala House Courts, New Delhi, July- September, 2008.
92
Medical Council of India, hereinafter referred to as MCI.
93
MurthyLuxmi, “Sex Selection: Getting down to business”,InfoChange News & Features, February 2003.
Available At :http://infochangeindia.org/population/features/sex-selection-getting-down-to-business.html
94
Center for Enquiry into Health and Allied Themes (CEHAT) &Ors. V. Union of India and Ors.,AIR 2001
SC 2007.
 P a g e | 42

4.1 The PRE - NATAL DIAGONISTIC TECHNIQUES (REGULATION AND

PREVENTION OF MISUSE) ACT, 1994

The Preamble, inter alia, provides that the object of the Act is to provide for the
regulation of the use of pre-natal diagnostic techniques for the purpose of detecting
genetic or metabolic disorders or chromosomal abnormalities or certain congenital
malformations or sex linked disorders and for the prevention of the misuse of such
techniques for the purpose of pre-natal sex determination leading to female foeticide;
and, for matters connected there with or incidental thereto95.

This Act provides for the regulation of the use of pre-natal diagnostic techniques for the
purpose of detecting genetic or metabolic disorders or chromosomal abnormalities or
certain congenital malformations or sex-linked disorders and for the prevention of the
misuse of such techniques for the purpose of pre-natal sex determination leading to
female foeticide96. The legislation seeks to achieve the following objectives97:
1. Prohibition of the misuse of pre-natal diagnostic techniques for determination of
sex foetus, leading to female foeticide.
2. Prohibition of advertisement of the techniques for detection or determination of
sex.
3. Regulation of the use of techniques only for the specific purpose of detecting
genetic abnormalities or disorders.
4. Permission to use such techniques only under certain conditions by the registered
institution.
5. Punishment for violation of the provisions of the Act; and
6. To provide deterrent punishment to stop such inhuman acts of female foeticide.
The PNDT Act, however, for all intents and purposes has proved to be a toothless piece
of legislation. The problem with the Act is twofold.
- Interpretation of the Act and
- Implementation of the Act.
Despite the intent and purpose of the Act being wide and all encompassing, it has been
interpreted by the ultrasonologists, the abortionists, the doctors and more shockingly the
government alike, to exclude pre-conceptual sex selection98.

95
Supra 4.
96
Pre- Natal Diagnostic Techniques Act and
Rules,AvailalbleAt:http://chdslsa.gov.in/right_menu/act/pdf/PNDT.pdf
97
Thakur Kumar Anil and Thakur R. N., “Impact of Economic Reform Policies on Dalit and Weaker
Section”, p. 303, Deep &Deep Publications Pvt. Ltd., Rajouri Garden, 2008.
98
Swati Mehta &Jayna Kothari,“ It’s A Girl ! Pre- Natal Sex Selection and the Law”, Lawyers collective,
Nov., 2001.
 P a g e | 43

PIL Petition99:

A PIL petition was filed in the Supreme Court by the Centre for Enquiry into Health and
Allied Themes (CEHAT), MahilaSarvangeenaUtkarshMandal (MASUM) and Dr. Sabu
M. George urging effective implementation of the Act. The Supreme Court passed an
order on 4th may 2001100 which aims at ensuring the implementation of the Act, plugging
the various loopholes and launching a wide media campaign on the issue. The second
goal of filing the PIL is the amendment of the Act to include pre-and during conception
techniques, like X and Y chromosome separation Pre-implantation Genetic Diagnosis
(PGD). The order largely concerns only the implementation of the Act and putting the
required infrastructure in place. However, the order entrusts the responsibility of
examining the necessity to amend the Act to the Central Supervisory Boards, keeping in
mind emerging technologies and the difficulties encountered in the implementation of the
Act and to make recommendations to the Central Government101. The directions are:
 Direction to the Central Government :
- To create public awareness against the practice of pre-natal determination of sex and
female foeticidethrough appropriate releases/programmes in the electronic media. This
shall also be done by Central Supervisory Board ('CSB' for short) as provided under
Section 16 (iii) of the PNDT Act.
- To implement with all vigour and zeal the PNDT Act and the Rules framed in 1996.
Rule 15 provides that the intervening period between two meetings of the Advisory
Committees Constituted under sub-section 17 of the PNDT Act to advise the appropriate
authority shall not exceed 60 days. It would be seen that this Rule is strictly adhered.
 Direction to the Central Supervisory Board (CSB) :
- Meetings of the CSB will be held at least once in six months as provided by the Act.
The constitution of the CSB is provided under Section 7. It empowers the Central
Government to appoint ten members under Section 7(2) (e) which includes eminent
medical practitioners including eminent social scientists and representatives of women
welfare organizations. this power will be exercised so as to include those persons who
can genuinely spare time for implementation of the Act.

- The CSB shall review and monitor the implementation of the Act.

- The CSB shall issue directions to all state / UTs Appropriate Authorities to furnish
quarterly returns to the CSB giving a report on the implementation and working of the
Act. These returns should inter alia contain specific information about:

99
Dr. Jena Chandra Krushna, “Female Foeticide: A Serious Challenge for the Society”, Orissa Review,
December – 2008.
100
Centre for Enquiry into Health and Allied Themes (CEHAT) and Ors. V. Union of India and Ors.,(2001)
5 SCC 577.
101
Dr. K. Shanmugavelayutham, “ The Pre-Conception and Pre-Natal Diagnostic techniques (prohibition of
Sex Selective) Act 2002- A Bold step”, Legal News and Views, Vol. 17, No. 5, May, 2003.
 P a g e | 44

 Survey of bodies specified in section 3 of the Act

 Registration of bodies specified in section 3 of the Act.
 Action taken against non-registered bodies operating in violation of section 3 of
the Act, inclusive of search and seizure of records.
 Complaints received by the appropriate Authorities under the Act and action
taken pursuant thereto.
 Number and nature of awareness campaigns conducted and results flowing
therefrom.
- The CSB shall examine the necessity to amend the Act keeping in mind emerging
technologies and difficulties encountered in the implementation of the Act and to
make recommendations to the Central Government.

- The CSB shall lay down a code of conduct under section 16(iv) of the Act to be
observed by persons working in bodies specified therein and to ensure its publication
so that public at large can know about it.

- The CSB will require medical professional bodies / associations to create awareness
against the practice of pre-natal determination of sex and foeticide and to ensure
implementation of the Act102.

 Directions to State Government/Union Territories Administrations

- All State Governments/UTs Administrations are directed to appoint by
notification, fully empowered Appropriate Authorities at district and sub - district
levels and also Advisory Committees to aid and advise the Appropriate Authority
in discharge of its functions [Re. Section 17 (5)]. For the Advisory Committee
also, it is hoped that members of the said Committee as provided under section
17(6) (d) should be such persons who can devote some time for the work assigned
to them.
- All State Governments/UTs Administrations are directed to publish a list of the
Appropriate Authorities in the print and electronic media in its respective
State/UTs.
- All State Governments/UTs Administrations are directed to create public
awareness against the practice of pre-natal determination of sex and female
foeticide through advertisement in the print and electronic media by hoardings
and other appropriate means.
- All State Governments/UTs Administrations are directed to ensure that all
State/UTs Appropriate Authorities furnish quarterly returns to the CSB giving a
report on the implementation and working of the Act.
 Directions to Appropriate Authorities
- Appropriate Authorities are directed to take prompt action against any person or

102
Supra 9.
 P a g e | 45

body who issues or causes to be issued any advertisement in violation of section

22 of the Act.
- Appropriate Authorities are directed to take prompt action to take prompt action
against all bodies specified in section 3 of the Act as also against persons who are
operating without a valid certificate of registration under the Act.
- All State/UTs Appropriate Authorities are directed to furnish quarterly returns to
the CSB giving a report on the implementation and working of the Act.
On January 17 this year, the President gave his assent to the amendment to the ineffective
Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. Now
called the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, the amendment leaves no room for doubt about its intentions.

The long-awaited amendment -- geared to strengthen the regulatory mechanisms and

implementation of the Act, and also broaden its scope -- has been greeted with applause
by women's groups and health activists, and hostility by the medical profession, which
tried its best to scuttle the overhaul of the law. Bringing into the ambit of the Act
emerging techniques for pre-conception sex-selection, such as sperm separation and pre-
implantation genetic diagnosis, increasing the fine and additional provisions for the
suspension and cancellation of the registration of violators, the law rightly targets the
medical profession: the so-called 'supply' side of the practice of sex-selection.
Manufacturers of ultrasound equipment are now required to sell their products only to
registered clinics, and all ultrasonographers now have to maintain records of all tests
conducted by them.

The amended law also provides for the setting up of state-level supervisory bodies to
monitor the Act's implementation, in addition to the supervisory agency that is already in
operation at the central level. These measures, prompted in no small measure by the rap
delivered by the Supreme Court in the case filed by CEHAT and MASUM, Pune-based
groups working on health, went alongside a process of public education and awareness-
raising.

PROVISIONS OF THE ACT103

 Section 4(2) - No pre-natal diagnostic techniques shall be conducted except for

the purposes of detection of any of the following abnormalities, namely:--
 chromosomal abnormalities;
 genetic metabolic diseases;
 haemoglobinopathies;
 sex-linked genetic diseases;
 congenital anomalies;

103
Supra 7.
 P a g e | 46

 any other abnormalities or diseases as may be specified by the Central

Supervisory Board;

 Section 4(3) - No pre-natal diagnostic techniques shall be used or conducted

unless the person qualified to do so is satisfied that any of the following
conditions are fulfilled, namely:--
 age of the pregnant woman is above thirty-five years;
 the pregnant woman has undergone of two or more spontaneous abortions or
foetal loss;
 the pregnant woman had been exposed to potentially teratogenic agents such as
drugs, radiation, infection or chemicals;
 the pregnant woman has a family history of mental retardation or physical
deformities such as spasticity or any other genetic disease;
 any other condition as may be specified by the Central Supervisory Board;

 Section 4 (4) - No person, being a relative or the husband of the pregnant woman
shall seek or encourage the conduct of any pre-natal diagnostic techniques on her
except for the purpose specified in clause (2).
The Act also prohibits a person conducting pre-natal diagnostic procedures not to
communicate to the pregnant woman concerned or her relatives the sex of the
foetus by words, signs or in any other manner.

 Section 6 of the Act prohibits the determination of sex of the foetus - On and
from the commencement of the Act:-
 No Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic
shall conduct or cause to be conducted in its Centre, Laboratory or Clinic,
pre-natal diagnostic techniques including ultrasonography, for the purpose
of determining the sex of a foetus;
 No person shall conduct or cause to be conducted any pre-natal diagnostic
techniques including ultrasonography for the purpose of determining the
sex of a foetus.
To strictly observe the provisions of the Act, the Central Government is empowered to
constitute a Board to be known as the Central Supervisory Board to exercise the powers
and functions conferred on the Board under this Act.

The Board shall have the following functions, namely: --

 to advise the Government on policy matters relating to use of pre-natal diagnostic

techniques;
 to review implementation of the Act and the rules made there under and
recommend changes in the said Act and rules to the Central Government;
 P a g e | 47

to create public awareness against the practice of pre-natal determination of sex
and female foeticide;
 to lay down code of conduct to be observed by persons working at Genetic
CounsellingCentres, Genetic Laboratories and Genetic Clinics;
 any other functions as may be specified under the Act.
Also the Central Government is empowered to appoint, by notification in the Official
Gazette, one or more Appropriate Authorities for each of the Union territories for the
purposes of this Act. The Appropriate Authority shall have the following functions,
namely:--

 to grant, suspend or cancel registration of a Genetic Counselling Centre, Genetic

Laboratory or Genetic Clinic;
 to enforce standards prescribed for the Genetic Counselling Centre, Genetic
Laboratory and Genetic Clinic;
 to investigate complaints of breach of the provisions of this Act or the rules made
thereunder and take immediate action; and
 to seek and consider the advice of the Advisory Committee, constituted under
sub-section (5), on application for registration and on complaints for suspension
or cancellation of registration.

 Offences and Penalties under the Act

The Act provides that every offence under this Act shall be cognizable, non-bailable and
non-compoundable.

The Act prohibits any advertisement relating to pre-natal determination of sex and
provides punishment for contravention. (Section 22). So, therefore,-

(1) No person, organisation, GCC104, GL105GC106 shall issue or cause to be issued any
advertisement in any manner regarding facilities of pre-natal determination of sex
available at such Centre, Laboratory, Clinic or any other place.

104
Genetic Counselling Centre, under section 2(c) of the Act, means an institute, hospital, nursing home or
any place, by whatever name called, which provides for genetic counseling to patients.
105
Genetic Laboratory, under section 2(e), means a laboratory and incudes a place where facilities are
provided for conducting analysis or test of samples received from genetic clinic for Pre-Natal Diagnostic
act.
106
Genetic Clinic, under section 2(d), means a clinic, hospital, institute, nursing home or any place, by
whatever name called, which is used for conducting pre-natal diagnostic procedure.
 P a g e | 48

(2) No person or organisation shall publish or distribute or cause to be published or

distributed any advertisement in any manner regarding facilities of pre-natal
determination of sex available at any GCC, GL, GC or any other place.

(3) Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall
be punishable with imprisonment for a term, which may extend to three years and with
fine, which may extend to ten thousand rupees.

 Section 23 - Any person who contravenes any of the provisions of this Act or
rules made there under shall be punishable with imprisonment for a term which
may extend to three years and with fine which may extend to ten thousand rupees
and on any subsequent conviction, with imprisonment which may extend to five
years and with fine which may extend to fifty thousand rupees.
The most remarkable feature of this Act is that notwithstanding anything in the Indian
Evidence Act, 1872 (1 of 1872), the court shall presume unless the contrary is proved that
the pregnant woman has been compelled by her husband or the relative to undergo pre-
natal diagnostic technique and such person shall be liable for abetment of offence under
sub-section (3) of section 23 and shall be punishable for the offence specified under that
section.

4.2 PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC TECHNIQUES

(PROHIBITION OF SEX SELECTION) ACT, 2002:

Based on the Supreme Court order and Central Supervisory Board recommendations the
Parliament on December 20 passed the Preconception and Pre-Natal Diagnostic
Techniques (Prohibition of Sex Selection) Act 2002. The provision are stated below107:
 The Act provides for the prohibition of sex selection, before or after conception.
 It regulates the use of pre-natal diagnostic techniques, like ultrasound and
amniocentesis by allowing them their use only to detect :
a. genetic abnormalities
b. metabolic disorders.
c. chromosomal abnormalities
d. certain congenital malformations
e. haemoglobinophathies
f. Sex linked disorders.
 No laboratory or centre or clinic will conduct any test including ultrasonography
for the purpose of determining the sex of the foetus.
 No person, including the one who is conducting the procedure as per the law, will
communicate the sex of the foetus to the pregnant woman or her relatives by

AnandMeenu, “Indian Legal Framework to Arrest Female Foeticide”, Legal News & Views, September
107

2005.
 P a g e | 49

words, signs or any other method.

 Any person who puts an advertisement for pre-natal and pre-conception sex
determination facilities in the form of a notice, circular, label, wrapper or any
document, or advertises through interior or other media in electronic or print form
or engages in any visible representation made by means of hoarding, wall
painting, signal, light, sound, smoke or gas, can be imprisoned for up to three
years and fined Rs. 10,000.

 Compulsory Registration :
The Act mandates Compulsory Registration of all Diagnostic Laboratories. All Genetic
CounsellingCentres, Genetic Laboratories, Genetic Clinics and Ultrasound Clinics,
irrespective of whatever they are involved as regards diagnosis for gynaecological or
other purposes, would now have to maintain records of all the tests conducted by them.
Only qualified persons can use pre-natal diagnostic techniques. The reasons for testing
should be recorded in writing. The techniques can be used in the following conditions.
 age of the pregnant women is above 35 yrs.
 the pregnant women has undergone two or more spontaneous, abortions or foetal
loss.
 the pregnant women had been exposed to potentially teratogenic agents such as
drugs, radiation, infection or chemicals.
 the pregnant woman has a family history of mental retardation or physical
deformities such as spasticity or any other genetic disease.
 the Central Supervisory Board may specify any other condition as required.

 State Level Supervisory Body (SLSB) :

The law provides for the setting up of State Level Supervisory Bodies to monitor the
implementation of the Act. The Board shall meet at least once in six months.

 Punishment :
Any violation, including unlicensed labs, of the Act leads to seizure of equipments. The
fine for those who indulge in sex selection procedure has been double from Rs. 50,000/-
to
Rs.1,00,000/- (one lakh) with additional provisions for the suspension and cancellation of
the Registration of those as a Medical Practitioner by the concerned Medical Council or
any other Registering Authority. The Act should be backed by stringent implementation
machinery by the state108.

108
Shanmugavelayutham K. (Dr.).,“The Pre- Conception and Pre-Natal Diagnostic Techniques
(prohibition of Sex Selection) Act 2002 – A Bold step”, Legal News & Views, Vol. 17, No. 5, May,2003.
 P a g e | 50

4.3 MEDICAL TERMINATION OF PREGNANCY ACT, 1971 (MTP)

The MTP109 Act was enacted by the Indian Parliament in 1971 and came into force from
1st April 1972. The MTP Act was again revised in 1975.The object of the Act is to
provide for the termination of certain pregnancies by registered Medical Practitioners and
for matters connected therewith or incidental thereto.

The MTP Act lays down the condition under which a pregnancy can be terminated, the
persons and the place to perform it. Abortion is illegal when it does not comply with the
provisions of this Act. To avoid the misuse of induced abortions, most countries have
enacted laws whereby only qualified Gynecologists under conditions laid down and done
in clinics/hospitals that have been approved can do abortions. The Medical Termination
of Pregnancy Act was enacted by the Indian Parliament in 1971 and came into force from
01 April, 1972. The MTP act was again revised in 1975 & in 2006. The reasons for which
MTP is done, as interpreted from the Indian MTP Act, are110:

1. Therapeutic indications : Where a pregnant woman has a serious medical disease and
continuation of pregnancy could endanger her life, like:
 Heart diseases.
 Severe rise in blood pressure.
 Uncontrolled vomiting during pregnancy
 Cervical/ breast cancer.
 Diabetes mellitus with eye complication (retinopathy).
 Epilepsy.
 Psychiatric illness.
2. Eugenic indications: Where the continuation of pregnancy could lead to substantial
risk to the newborn leading to serious physical/mental handicaps. for example:
 Chromosomal abnormalities.
 Rubella (German measles) viral infection to mother in first trimester
 If previous children have congenital abnormalities.
 Rh iso-immunisation. link
 Exposure of the foetus to irradiation.
3. Humanitarian indications: As the pregnancy is alleged by a pregnant woman to have
been caused by rape.
4. Social indications: The pregnancy has occurred as a result of failure of Contraceptive
Device or method used (natural methods/ barrier methods/ hormonal methods) by a
married woman or her husband for the purpose of limiting the number of children.

109
Medical Termination of Pregnancy, hereinafter referred to as MTP
110
Gupta Sanjay (Dr.),“Health Care and Law- A Kaleidoscopic View”, Available At:
http://www.schcpune.org/schcnewsite/nationalseminar/RepotiernationalSeminar2013/Master%20Classes/D
r.%20Sanjay%20Gupte.pdf
 P a g e | 51

5. Environmental indications : in order to prevent a risk of injury to the physical or

mental health of the pregnant women which may arise by reason of her actual
reasonably foreseeable environment.
Consent of pregnant women is required if she is:

 Married--- her own written consent. Husband’s consent not required.

 Unmarried and above 18years ---her own written consent.
 Below 18 years ---written consent of her guardian.
 Mentally unstable --- written consent of her guardian.
A consent assures the clinician performing the abortion that she:

 Has been informed of all her options.

 Has been counseled about the procedure, its risks and how to care for herself after
she chooses the abortion of her own free will.
According to this Act, notwithstanding anything contained in the Indian Penal Code (45
of 1860), a registered medical practitioner shall not be guilty of any offence under that
Code or under any other law for the time being in force, if any pregnancy is terminated
by him in accordance with the provisions of this Act.

Any abortion which does not come under the rules of the MTP Act, although performed
by qualified doctors, come under criminal abortion, and the doctors are liable for
prosecution and punishment.

4.4 INDIAN PENAL CODE, 1860

Abortion was first penalized under the Indian Penal Code. There are certain provisions in
the Indian Penal Code, which pertain to offences relating to women. Some of them have
discussed below.

 SECTION 312: Causing miscarriage

The causing of a miscarriage, if it is not done in good faith to save the life of the women,
an offence punishable with imprisonment upto seven years. The code makes both the
women who undergo the abortion as well as the abortionist liable to punishment.

 SECTION 313: Causing miscarriage without woman's consent

 P a g e | 52

The carrying out of abortions without the consent of the woman, or with the consent
received under duress or in fear of injury. A woman under a misconception, a woman
with unsound mind, a woman in an intoxicated state, and a girl below 12 years of age
cannot give consent.

 SECTION 314: Death caused by act done with intent to cause miscarriage

The causing of death of a woman while inducing abortion is an offence punishable with
imprisonment up to ten years and fine.

 SECTION 315: Act done with intent to prevent child being born alive or to
cause it to die after birth

Doing an act with the intent to prevent the child from being born alive is punishable with
10 years imprisonment.

 SECTION 316: Causing death of quick unborn child by act amounting to

culpable homicide

Causing death of a ‘quick’ unborn child if the act would otherwise amount to culpable
homicide is punishable with imprisonment for 10 years.

 SECTION 318: Concealment of birth by secret disposal of dead body

By secretly burying or disposing of the death body of a child, whether such child die
before or after or during its birth, intentionally conceals or try to conceal the birth of such
child is punishable with imprisonment for two years or fine, or both.

4.5 CONSTITUTION OF INDIA :

Our Constitution provides for the Right to Equality under Article 14 and right to live with
dignity under Article 21. Sex – detection tests violate both these rights. Right to life is a
well established right and is recognized by various international instruments. Globally,
Constitutions recognize the sanctity of life, yet have failed to adequately protect the life
of foetus. Judicial pronouncements are also not conclusive and vary in different
jurisdictions. In India the right to life is guaranteed to every person under the Constitution
of India. The concept of personhood complicates the position of legal status of foetus.
Often courts shy from answering this question due to complex issues that arise in
determining this question – like when does foetus attain personhood? This question is
 P a g e | 53

baffling the courts worldwide. There is a desperate need for the courts to come clear on
this vital issue and recognize the rights of the foetus111.
In India, Article 21 of the Constitution guarantees the life and liberty of every person 112.
But it is doubtful if this would include the life of foetus as the meaning is restricted by the
use of the word person. The Indian Constitution has recognized the right to life under
Article 21 as also recognized in several cases113. But this is hardly available to the
unwanted girl child. Hence the right of the girl child may be construed in broader terms
and should be inferred as
- Right to be born and not to be aborted only because she is a girl.
- Right to remain alive after birth and not to be killed at any moment after birth.
- Right of the girl child to her mind her body, right to childhood and right to a healthy
family environment114.
However there are a number of statutes that indirectly provide protection to the life of
foetus. The Indian penal code under various provisions makes causing miscarriage an
offence115.
In BandhuaMuktiMorcha V. Union of India116 the Hon’ble Supreme Court held that “it is
a fundamental right of everyone in this country assured under the interpretation of Article
21 to live with human dignity… it must include the tender age of children to develop in a
healthy manner and in conditions of freedom and dignity.
The Medical Termination of Pregnancy Act 1971 provides for limited and restricted right
to terminate the pregnancy, when the life of the mother is at stake or there is a substantial
risk to the life of the child117. What is to be noted here is that the MTP Act 1971, does not
recognize the right of the mother to abort, this right to decide on termination of
pregnancy vests with a registered medical practitioner118. Further, some states in India
have made special legislations to confer special protection to the life of foetuses119.
The Nuclear Installations Act, 1965 recognises liability for compensation in respect of
injury or damage caused to an unborn child by the occurrence involving nuclear matter or
the emission of ionizing radiation120. The code of Criminal Procedure under Section 416

111
Prasanth S.J., “Right to Life of Foetus”, AIR Vol. 92, Part 1098, June’2005.
112
Indian Constitution (1950) Article 21: Protection of Life and personal liberty – No person shall be
deprived of his personal liberty except according to procedure established by law.
113
Menaka Gandhi V. Union of India, AIR 1978 SC 597.
114
JessyKurian, “A Cry Unheard Female Foeticide& Female Infanticide”, Legal News & Views, Vol. 17,
No. 11. November, 2003.
115
The Indian Penal Code: Chapter 18 (offences affecting the human body) in part two section 312 to 318
deals with the offences relating to miscarriage or injuries to the unborn child of exposure to the infants and
concealment of birth.
116
AIR 1984 SC 802.
117
Medical Termination of Pregnancy Act, 1971, Section 3 (2).
118
Ibid
119
Section 4(4) of the Maharashtra Regulation of use of Pre-Natal Diagnostic Techniques Act, 1988 makes
it obligatory to obtain an undertaking from a woman to the effect-that she will not terminate the pregnancy
if the diagnosis shows the possibility a normal child of either sex.
120
Ramaswami, G., “Basic Right of the child – Born and unborn” AIR, 2002, Journal Section, p.141.
 P a g e | 54

mandates that the High Court shall order of execution of capital sentences on a pregnant
woman be postponed or it may commute the sentence to imprisonment for life, thereby
indirectly recognizing the right to life of foetus121. It is only an escapist view to deny the
right to life to a foetus saying it is not a person. The state is evading the crucial issue of
right to life of a foetus by giving 15 such frivolous reasons, although it indirectly
recognizes this right through criminal statutes122 and also recognizes that an unborn can
enjoy certain interests in property123.
In the light of the discussion above it is agreed that foetus should enjoy the right to life.
The foetus should be recognized as a separate entity enjoying distinct legal right and is
not a part of the mother.
The concept of personhood is a myth and a mere creation of law. This legal fiction must
not come in the way of conferring rights to the foetus. Failure to recognize the rights on
the foetus would amount to discrimination thereby violating the right to equality
enshrined in Article 14 of the Indian Constitution124.

4.6 THE LAWS AS IT EXIST

There is no law prevailing in India at present, which exclusively deal with female
foeticide as an offence. What is available is the law to prevent sex selective abortions and
the laws to regulate abortions and the provisions in the Indian Penal Code to deal with
unauthorized abortion. The relevant laws which exist were stated above.

4.7 REVIEW OF THE MEASURE TAKEN TO COMBAT FEMALE FOETICIDE

In the modern period of Indian history, there has a no. of measures taken to combat the
female infanticides recently foeticides either as an institutional measures or as an
individual initiatives.

A. Institutional measures:

 PNDT (Regulation and Prevention of Misuse) Act-1994: Maharashtra is the first

state in country to ban pre-natal sex determination through the enactment of
Maharashtra regulation of prenatal diagnostics techniques act. Similar efforts at
the national level resulted in the enactment of the Central pre-natal diagnostic
techniques (Regulation and prevention of misuse) Act 1994.The act has two
aspects viz., regulatory and preventive. It seeks to regulate the use of pre-natal
diagnostic techniques for legal or medical purposes and prevent misuse for illegal

121
Code of Criminal Procedure 1973: Section 416.
122
Indian Penal Code : Section 312, 313, 314, 315 & 316
123
The Transfer of Property Act, 1882: Section 20.
124
Prasanth S.J., “Right to Life of Foetus”, AIR Vol. 92, Part 1098, June’2005.
 P a g e | 55

purposes. The act provides for the setting up of various bodies along with their
composition powers and functions. There is a central supervisory board,
appropriate authorities and advisory committees. Violations of the PNDT Act
carry a five year jail term and a fine of about 2,300 U.S. dollars.
 The Supreme Court of India has issued notices to the Indian government and the
states and union territories on a petition seeking stricter implementation of laws
that ban pre-natal sexselection tests and sex-selective abortions in India. A
concerned Supreme Court observed that the Pre-Conception and Pre-Natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT) that
is meant to prevent female foeticide in India, has failed. The petition brought to
the court's attention the rampant practice of sex-selective abortions in many parts
of the country, with doctors indiscriminately conducting sex-determination tests
and carrying out abortions because of lax implementation of the PCPNDT Act.
 UNICEF is committed to protecting every child from violence, exploitation, abuse
and discrimination.
 The government would declare January 24, 2010 as the national girl child day
with a focus on targeting the scourges of female foeticide, domestic violence and
malnutrition.

B. Individual and group appeals and initiatives:

In modern India, there have always been the protests against female infanticides
by various national leaders like Vidyasagar, Raja Ram Mohan Roy, and Mahatma
Gandhi a few names to mention. In the very recent decades, many persons from
different walks of life have protested against the female foeticides.
 Describing female foeticide as a “disgrace” to society Mrs.PratibhaPatil India's
first women President has called upon the medical fraternity to ensure that
diagnostic tests are not misused for pre-natal gender determination.
 Mrs.Meira Kumar first women LokSabha Speaker said, “Women have great
power hidden within them. Even the Mahatma believed in this and decided to
involve them in the freedom struggle.But today we live in a country where
rampant female foeticide and female infanticide take place. The condition of
women in our country needs attention,
 RaveenaTandon, an actress who has been associated with numerous NGOs and
social activities was in the Pink City recently to promote a campaign aimed at
saving the girl child.
 Hindu religious leaders have decided to launch a crusade against female foeticide
in Mathura. Eminent politicians of the BJP and the SanghParivar, social workers
and poets are expected to attend the inaugural function scheduled for tomorrow at
the Vatsalya Gram Vrindavan here, SadhviRitambhara, the chief architect of the
 P a g e | 56

crusade. "Female foeticide is a crime and it has nothing to do with the Hindu
religion. The crusade against it would start on December 16, 2008 with the
congregation of saints, Shankaracharyas and social workers. Eminent politicians
have also been invited for the occasion," Ritambhara said. She claimed consents
of eminent sadhus have been taken for the programmes which will be conducted
as part of the crusade. "Since female foeticide adversely affects the psyche of the
woman on whom the abortion is conducted, the sooner the evil is buried, the
better it would be," she added.

4.8 STEPS TAKEN FOR THE PREVENTION OF FEMALE FOETICIDE IN

INDIA

The Ministry of Health & Family Welfare are has adopted a multi-pronged strategy to
check female foeticide,which includes legislative measures, awareness generation as well
as programmes for socio-economicempowerment of women. The steps taken by the
government to prevent female foeticide under the Preconception and Pre natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994, PC & PNDT Act include the
following:

Reconstitution of statutory bodies under the Act and regular meetings of the Central
Supervisory Board, State Supervisory Board and Advisory Committees to monitor
effective implementation of the law.

 Rule 11(2) of the PC & PNDT Rules, 1996 has been amended to provide for
confiscation of unregistered machines and further punishment of organizations
which fail to register themselves under the Act.
 Dedicated PNDT cells have been set up at State/district level for enhancing in-
house capacities for building credible cases f or conviction against violations of
the Act.
 Surprise field inspections of ultrasound clinics by the National Inspection and
Monitoring Committee (NIMC) in states/UTs against violations under the Act.
 NIMC has been further empowered to oversee follow-up action by Appropriate
Authorities against organizations found guilty of violations under the Act during
inspections.
 Sensitization and training programme have been conducted f or law enforcers,
medical practitioners, judiciary etc. for effective implementation of the Act.
 Comprehensive Information, Education & Communication (IEC) activities
including mass media awareness campaign through print and electronic media and
community mobilization through Non-Governmental Organizations have also
been undertaken.
 P a g e | 57

This information was laid by Union Minister of Health and Family Welfare
ShriGhulamNabi Azad in RajyaSabha.

4.9 JUDICIAL INTERPRETATION

4.9.1 LANDMARK DECISIONS FOR IMPLEMENTATION OF THE ACT -

Directions Issued by the Supreme Court and High Courts

 CEHAT And OthersV. Union Of India125

Judgment: In this case Hon’ble Apex Court held that the appropriate government in their
particular state must advertise the PNDT Act through any medium which is accessible to
all class of people in the state and should also provide full hand for its implication in
public interest.

 HemantaRathV. Union Of India(UOI) And Ors.126

Several States did not take any step for effective implementation of the Act. Hence, PILs
were filed in the High Courts to that effect. It was held by the court that the Act has a
broader human right perspective inasmuch as it has been enacted to prevent the killing of
a foetus on a gender bias, these is against the essence of our constitutional principles. The
Act has been enacted to serve public purpose and the State is under both a statutory and
constitutional obligation to implement the provisions of the said Act. The High Court
gave explicit directions to the State Government to appoint Appropriate Authority and
Advisory Committee within 6 weeks and further directed the Committee to take strict
measures to implement the provisions of the Act and indicated that action need to be
taken.

This judgment is very positive in nature, giving impetus to strict implementation of the
provisions of the Act and compelling the State to comply with its duty/obligation of
implementing the Act, which was not properly implemented even after 13 years from
enactment of the legislation.

 Court on its own motionV. State of Punjab and others127

The latest decision in a series of Public Interest Litigations is one, where the High Court
of Punjab and Haryana at Chandigarh, took suomoto cognizance of a newspaper report
about Sex Determination kits entering in the State. According to the High Court these kits
were a huge blow to the efforts by the State to improve sex ratio. Being alarmed by the
declining child sex ratio in the State and to curb the social menace of pre-natal sex

125
(2003) 8 SCC 406.
126
AIR 2008 Ori 71.
127
IN THE HIGH COURTOF PUNJAB & HARYANA AT CHANDIGARH,Civil Writ Petition No. 17964
of 2007, Decided on 31/07/2009
 P a g e | 58

selection and sex determination, the High Court on its own motion, issued notices to
Central and State Government.
Perusal of the affidavits filled by the Governments in response thereto revealed that
PNDT wing of the Ministry of Health and Family Welfare was fully conscious about
availability of such Sex Determination kits in the grey market. What was found to the
satisfaction of the High Court was that Government itself was also worried and
concerned about the same and had taken effective and adequate steps to block them and
to create general awareness and sensitization on the subject so that the laudable Object
and mission of the Government, as Stated in its affidavit, to curb pre-natal sex selection
and sex determination is realized.
This decision illustrates that human ingenuity in evolving new techniques knows no
bounds when it comes to gender discrimination and elimination of female foetuses.
Concerted efforts on the part of all the three wings of the Government - legislative,
executive and judiciary alone can check such unpardonable crimes. Their acting together
and in harmony is of importance.

4.9.2 PETITIONS CHALLENGING CONSTITUTIONAL VALIDITY OF THE

ACT

 VinodSoni and Anr.V. Union of India (UOI)128

In this case, the validity of the Act was challenged on the ground that the provisions of
the Act are violative of Article 21 of the Constitution of India. A very interesting
argument was advanced in this case by the Petitioner that the right to life guaranteed
under Article 21 of the Constitution includes right to personal liberty which in turns
includes the liberty of choosing the sex of the offspring and to determine the nature of the
family. Therefore, it was contended that the couple is entitled to undertake any such
medical procedure which provides for determination or selection of sex.
The High Court however exposed the fallacy of this argument by observing that, “right to
personal liberty cannot be expanded by any stretch of imagination to liberty to prohibit to
coming into existence of a female or male foetus which shall be for the nature to decide.”
After making reference to the decisions of the Supreme Court, which explain that Article
21 includes the right to food, clothing, decent environment and even protection of
cultural heritage, the High Court held that “these rights, even if, further expanded to the
exremes of the possible elasticity of the provisions of Article 21, cannot include right to
selection of sex, whether preconception or post-conception.” It was observed by the High
Court that “this Act is factually enacted to further the right of the child to full
development as given under Article 21. A child conceived is, therefore, entitled under
Article 21 to full development, whatever be the sex of that child.” Accordingly High

128
2005 CriLJ 3408
 P a g e | 59

Court dismissed the Petition by holding that it does not even make a prima facie case for
violation of Article 21 of the Constitution.
The case leaves one wondering how right to life of a person can be expanded to include
selection of sex of the child.

 Mr. Vijay Sharma and others V. Union of India (UOI)129

The validity of the Act was challenged on the ground that it violates principle of 'equality
of law' enshrined in Article 14 of the Constitution of India. Petitioners were a married
couple having two female children and were desirous of having a male child. According
to them, by doing so, they could then enjoy the love and affection of both, son and
daughter and their daughters can enjoy the company of their own brother while growing
up. According to them, couples who are already having children of one sex should be
allowed to make use of the pre-natal diagnostic techniques at pre-conception stage to
have the child of opposite sex. It was further argued that under the provisions of the
Medical Termination of Pregnancy Act, 1972 (MTP Act), termination of pregnancy is
allowed under certain circumstances hence there is no reason to impose a blanket ban on
determination of sex at preconception stage. An innovative plea was raised to the effect
that, if anguish caused by unwanted pregnancy is recognized as ground for termination of
the pregnancy under MTP Act, why under PCPNDT Act anguish caused to a mother who
conceives a female or male child for the second or third time is not considered and thus
there is discrimination between two women situated in similar position and hence Act
violates Article 14 of the Constitution.

The Hon'ble Judges of the High Court, after elaborately dealing with the Object, Reasons
and Provisions of the Act, held that there can be no comparison between the two
legislations – viz., MTP Act and PCPNDT Act. The objects of both the Acts differ. MTP
Act does not deal with sex selection before or after conception. Anguish of a mother who
does not want to bear a child of a particular sex cannot be equated with a mother who
wants to terminate the pregnancy not because of the sex of child but for other
circumstances. Thus by process of comparative study, the High Court held that provisions
of the Act cannot be called as discriminatory and hence violative of Article 14 of the
Constitution.
The High Court had in this case taken note of the frightening figure showing imbalance
in sex ratio in various parts of India and expressed its concern for the same. The High
Court was also aghast at the shocking arguments in the Petition proclaiming that if the
country is economically and socially backward, it is better that female child are not born.
The court has, in its strong and harsh words held that, “such tendency affects the dignity
of women. It undermines their importance. It insults and humiliates womanhood. It
violates woman's right to life. Sex selection is therefore against the spirit of the law and
Constitution.” Thus rejecting all the challenges raised to the Constitutional validity of the
129
AIR 2008 Bom 29.
 P a g e | 60

Act, the court dismissed the Petition and directed the State to take all expeditious steps to
prevent misuse of the diagnostic techniques.

4.9.3 CASES INVOLVING PROCEDURAL ISSUES UNDER THE ACT

 Dr. Mrs. Sudha Samir V. State of Haryana and others130

This Petitions challenged the order of suspension of registration under the Act on the
ground that, when the show cause notices were issued u/s 20 and the action of suspension
had been taken, the Gazette Notification had not been made; therefore the entire action
u/s 20 of the Act ought to fail. The response of the State to this contention was that the
Government had issued an Ordinance to validate certain acts done by Appropriate
Authority prior to the Gazette Notification. The said Ordinance was subsequently
introduced as a Bill in the State Assembly and was also brought as an enactment
subsequently. The High Court therefore held that when subsequent enactment is not
challenged which validates the acts done by the Appropriate Authority prior to the
Gazette publication, the Petitioners’ challenge to the show cause notices and the
suspension orders issued by the Competent Authority cannot survive for adjudication.
The High Court however observed that Petitioners can avail of independent remedy to
challenge the validity of the Act itself.
It must be noted that though these Petitions were dismissed on technical ground, these are
enough to reflect adversely on the inaction and lackadaisical manner in which the State
Government – whether it is of Maharashtra or of Punjab and Haryana - functions in
implementation of this important piece of social legislation.

 Dr. PreetinderKaur and others V. The State of Punjab and others131

In the recently decided Civil Writ Petition No. 20635 of the 2008 again the competency
of the authority which initiated criminal prosecution against the Petitioner for violation of
Section 3 (a) punishable u/s 23 of the Act was challenged. It was contended that the Act
contemplated the proceeding to be initiated in particular fashion on a complaint by the
Appropriate Authority, but the said procedure had not been followed. The person who
had filed the complaint had never been authorized by the Appropriate Authority for
taking any action; therefore the entire trial which was in progress before the Magistrate
was vitiated.
High Court rightly rejected this contention by giving broader interpretation to Section 28
of the Act. It was held that Section 28 does not narrow down the class of persons who can
initiate action. On the other hand, as any legislation intending to prevent a social evil, it
allows for fairly large body of persons to set the law in motion. Apart from the
Appropriate Authority, an Officer authorized by the Central or State Government can

130
IN THE HIGH COURTOF PUNJAB AND HARYANA AT CHANDIGARHCivil Writ Petition No.
18365 of 2009 Decided on 03/02/2010
131
2011CriLJ876
 P a g e | 61

also file a complaint. He can also be a person authorized by the Appropriate Authority
itself. As per the Explanation contained u/s 28, the expression 'person' includes even a
social organization. The various categories of persons which are set out u/s 28 give
authority to a wide range of persons who can initiate the action under the Act. It was
further held that Section 28 must not be read as constituting a narrow class of persons
who could initiate the action. It must be given an extensive meaning to pave the way for
any socially conscious person to initiate action. It was accordingly held that the complaint
filed by the Project Officer was not illegal but it was only irregular and the subsequent
discussion and recording of minutes by Appropriate Authority constituted valid
ratification. The High Court therefore, having regard also to fact that the case before the
trial court has progressed for sufficient length of time, dismissed the Petition.
Thus this case, taking into consideration the Object of the Act, which was to put an end to
the social menace of sex selection, adopts a different and broader approach in favour of
upholding the validity of the action taken under the Act.

Dr. (Mrs.) SuhasiniUmeshKaranjkarV. Kolhapur Municipal Corporation

&Ors.132
This decision is landmark in more than one sense and similarly a long and much awaited
decision. It overrules the earlier decision delivered by the two judge Aurangabad Bench
of the same High Court in Writ Petition No. 1587 of 2009 filed by Dr.
DadashebPopatraoTarte against State of Maharashtra through the minister for Health &
Family Welfare and decided on 14/08/2009. In that writ petition, seizure of Ultra
sonography machine was challenged on the ground that Section 30 of the Act does not
empower Appropriate authority to seize such machine used in Genetic Clinic. High Court
had accepted the said contention holding that reading of Section 30 and Rule 12 of the
Act do not empower the Appropriate Authority to seize the sonography machine used in
the genetic clinic. The High Court had therefore set aside the seizure of ultra-sonography
machine and directed its return to the petitioner. However it was clear that while arriving
at this conclusion, Explanation(2) of Rule 12 which defines material object to include
machines and Explanation(3) which states that “seize” and “seizure” would include
“seal” and “sealing” respectively, were not brought to the notice of High Court.

The result of the said decision was however to the effect that Appropriate Authoriy could
not seize sonography machines and because of this decision, already siezed machines had
to be released and returned.
Fortunately for the Prosecution, when this anomalous position was brought to the notice
of the High Court in Writ Petition No.7896 of 2010 filed by Dr. Mrs.
SuhasiniUmeshKaranjkar against Kolhapur Municipal Corporation and others, dated
23.12.2010, it was held that this part of the decision requires reconsideration and the
matter deserves to be heard by a larger Bench.
132
2011(4) Bom CR 293.
 P a g e | 62

Accordingly, the matter was considered in detail by the Full Bench, which in its decision
dated 12.6.2011 positively and conclusively held that, the analysis of the provisions of
the Act is sufficient to hold that the expression "material object" in respect of which the
power to seize and seal is conferred upon the Appropriate Authority/ authorised officer,
includes ultra sound machines, other machines and equipment which are used for pre-
natal diagnostic techniques or sex selection techniques” and hence now it can be held as
settled law that Appropriate Authority has power to seize the ultra sound machine used in
genetic clinics.
In this case, before parting with the matter, the High Court also made a reference to the
disturbing figures of the declining National child sex ratio over the last five decades, to
which its attention was sought by the learned Additional Government Pleader, reflecting
that in the census of 2011 the national female child sex ratio has fallen to 914 whereas in
Maharashtra it has gone down from 913 in 2001 to 883 in 2011. It has gone down to as
low as 801 in Beed District. In Kolhapur District, where the offence in question was
registered, it is 839.
The High Court also felt distressed by the fact that a number of cases for trial of offences
registered under the Act are pending in Courts of the Judicial Magistrate First Class for a
long period, sometimes upto 6 years and in a few cases as long as 6 to 8 years. The High
Court has, therefore, directed that all cases under the Act shall be taken up on top priority
basis and the Metropolitan Magistrates, Mumbai and the J.M.F.Cs. in other Districts shall
try and decide such cases with utmost priority and preferably within one year. Criminal
Cases instituted in the year 2010 and prior thereto shall be tried and decided by 31
December 2011.
The High Court further gave direction to circulate the copy of the judgement to all the
courts in Maharashtra for timely compliance of the above direction.
This judgement therefore goes a long way not only in clarifying the anomalous legal
position but also paves the way for expeditious disposal of the cases filed under this Act
so that the Act will acheive the object of curbing the misuse of sex determination and sex
selection techniques.The results of this judgment are also visible in expeditious disposal
of cases and recent decisions coming from trial courts.

 J. SunderrajanV. Dr. S.G. Dalvi&anr.133

This Petition is filed U/S 482 of Cr. P.C. for quashing the process issued against the
Petitioner under Section 3-B of the Act. The allegation against the Petitioner, who was
accused No. 2 in the complaint case filed by Respondent in the trial court, was that
Petitioner being one of the directors of Accused No. 1 Company - Philips Medical
System India Pvt. Ltd., has violated the provisions of Section 3 B of the Act by selling

133
IN THE HIGH COURT OF BOMBAY (GOA BENCH),CRIMINAL WRIT PETITION NO.6 OF 2009,
Decided on 15-4-2009.
 P a g e | 63

Ultrasound machine to Apollo Victor Hospital which at the time of sale was a non-
registered hospital under the Act.
It was not disputed that the sale in question took place after Section 3 B was introduced.
It was also not disputed that Apollo Victor Hospital was a non-registered hospital at the
time of the sale. The only contention raised was that there were no averments in the
complaint as well as in the statement on oath that Petitioner was in charge of and
responsible to the Company for the conduct of the business of the Company. The High
Court accepted the said contention and quashed the process issued against the Petitioner.
It is pertinent to note that the Apex Court has in several of its decisions like S.M.S.
Pharmaceutical Ltd. V. Neeta Bhalla 2005 (8) SCC 89 categorically held that necessary
averments ought to be in the complaint before a person can be subjected to criminal
process by way of fastening vicarious liability on him in his capacity as director of the
company. What are those necessary averments is also spelt out by the unanimous judicial
decisions. Even then in this case the only averment made in the complaint was that
Petitioner is a director of the Company. There was no necessary averment made that
Petitioner was in charge of and responsible for the conduct of the business of the
company. Hence for this technical lacuna in the complaint the process issued against
Petitioner came to be set aside though factually all the necessary conditions of the offence
were met.
This case is therefore important for the prosecution to act as a guideline while drafting
the complaint against the company and its directors.

4.9.4 APPEAL AGAINST ACQUITTAL

 Sadhu Ram KuslaV. RanjitKaur and others134

In this case the acquittal of the respondents by the trial court for the offences punishable
u/s 120 B, 312, 315 IPC & Section 23 of the Act was challenged. The allegations against
the respondents were to the effect that respondent No.3 Dr. Kamlesh Jindal who was
running her Nursing Home at Rampura had conducted Sonography test on respondent
No. 1 who was 14 weeks pregnant. The test was allegedly conducted to determine
“foetuswell being” and the result was found to be normal. However on the same night
respondent 1 had a miscarriage. Hence it was contended by the Petitioner that in fact
Sonography test was conducted to determine sex of the foetus and the pregnancy was
terminated on finding the foetus to be female. It was argued that if the foetus was found
to be normal in the sonography test, a miscarriage could not have occurred on the same
night by alleged excessive bleeding as contended by the respondents. Respondent No. 2
was the husband of Respondent No. 1 and respondent No. 4 was Dr. Laxmi who has
terminated the pregnancy of respondent No. 1.

134
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH,Criminal Misc. No. 337-
MA of 2007, Decided on 23/03/2009.
 P a g e | 64

During trial evidence was laid both by the prosecution and defence. As per respondent
No. 1 she had continuous bleeding and pain for 2 days and therefore she had gone for
Ultrasound scan to respondent No. 3 to know the condition of foetus. She was told by
respondent No. 3 that there was risk of threatened abortion and she should get herself
admitted. However as no male member was accompanying her, she refused to get
admitted and on that night she had miscarriage. The trial court accepted the defence case
and acquitted all the four accused.
In Appeal the High Court also concurred with the decision of the trial court by holding
that there was practically no case made out. It was opined by the High Court that the
mere fact that there was miscarriage on the same night on which sonography test was
conducted, ipso-facto does not establish that sex of the foetus was detected and disclosed.
It was further held that there is no legal presumption that as there was abortion, the foetus
was female. There was also no evidence to prove that the foetus was of a female.
This case to some extent exposes the lacuna in the provisions of the Act. The tell-tale
circumstances of the case created strong ground to hold that abortion, alleged to be a
miscarriage, was only because the foetus was found to be female. Otherwise there is no
explanation how the alleged miscarriage took place on the very night when the condition
of the foetus was found to be normal in the afternoon. It appears that as respondent No. 1
- the pregnant lady was also made an accused, there was no likelihood of her supporting
the prosecution case. Hence there was no evidence for prosecution to prove its case
against the doctor who conducted sex determination test and terminated the pregnancy.
Some thinking is, therefore, required in this direction for amendment in the provisions of
the Act so that the evidence of the pregnant lady will be available for prosecution to
prove the case against the doctors and clinics which misuse prenatal diagnostic
techniques. Making the pregnant lady an accused in the case wascounterproductive. The
attention of the Appropriate Authorities is also required to be drawn to provision of
Section 24 of the Act, which lays down a presumption that unless the contrary is proved,
the Court shall presume that the pregnant woman was compelled by her husband or any
other relative as the case may be, to undergo pre-natal diagnostic technique for the
purposes other than those specified in sub-section (2) of Section 4 and such person shall
be liable for abatement of offence under subsection (3) of Section 23 and shall be
punishable for the offence specified under that section. This presumption is to be drawn
notwithstanding anything contained in the Indian Evidence Act. It is to deal exactly with
situations similar to those faced in this case, although the presumption was laid down by
the Legislature it was not adhered to by the Appropriate Authorities, while making
respondent No.1 as accused.
 P a g e | 65

4.9.5 CASES OF CONVICTION

 Dr. PradeepOhri V. State of Punjab and Anr.135

Petitioner in this case was convicted u/s 23 (1) of the Act and was released on probation
by the trial court. Initially he was legally advised that it was not necessary for him to file
appeal against the conviction. However subsequently as per legal advice, he preferred an
appeal alongwith application for condonation of delay. Meanwhile after more than one
year of his conviction by the trial court, the Petitioner's name was removed from the State
Medical Register by the Medical Council u/s 23 (2) of the Act. By this Writ Petition, he
has challenged this order of removal of his name.
The first contention raised was that his name was removed from the State Medical
Register for a period of 5 years for an offence committed on 09/07/2002 when as per
Section 23 of the old PNDT Act, 1994, his name could have been removed only for a
period 2 years. It was submitted that only after the amendment of PNDT Act with effect
from 14/02/2003, the period of 2 years for the first offence had been enhanced to 5 years.
Therefore it was argued that the order of removal of his name for 5 years in respect of the
act committed prior to the new amended Act came into effect was squarely hit by the
Constitutional prohibition as imposed by Article 20 (1) of the Constitution against
retrospective effect to any penal law. The High Court accepted and upheld the said
contention and reduced the period to 2 years from 5 years.
The second contention raised was that as the Petitioner was not sentenced to any
punishment but was released on probation, no disqualification was attached to his
conviction. Hence Medical Council had acted illegally and without jurisdiction while
ordering the removal of his name. It was submitted that this order was grossly in violation
of Section 12 of the Probation of Offenders Act. The High Court however rejected the
said contention and confirmed the removal of his name for two years.

 The Appropriate Authority, Dr. Sambhaji Patil V. Dr. Prashant Navnitlal

Gujrathi136
It is one of those early decisions which are an encouragement for the prosecution. In this
case the accused was prosecuted u/s 23 and 25 of the Act for contravention of Rule 9 (4)
of the Act, for non-maintenance of record and for failure to submit the record which was
to be the maintained as per Form-F, of his sonographic clinic, before Appropriate
Authority at the time of inspection.
The court considered in detail the relevant provisions, like Section 4 (3) Section 29 (2)
Rule 10 (1A), Rule 11 in their proper perspective, casting the bounden legal duty on the

135
AIR 2008 P&H 108.
136
IN THE COURT OF JUDICIAL MAGISTRATE (F.C.) AT- PAROLA, DISTRICTJALGAON(Presided
over by S. P. Naik- Nimbalkar, Judicial Magistrate (F. C.), Parola) Regular Criminal Case No. 5/2006
Decided on 27.07.2010
 P a g e | 66

accused to produce and show the record to inspecting Authorities. The court elaborately
dealt with the various pleas taken by the defence including the challenge to competence
of Appropriate Authoritiy to file a complaint for non-compliance with procedure of
seizure, the conduct of accused and held accused guilty for offence u/s 23 and 25 of the
Act for contravention of Rule 9 for non-maintenance of records.
While awarding the sentence, the Court dealt with the object of the Act and as to how non
maintainance of form-F amounts to contravention of provisions of Section 5 and 6 within
the meaning of Section 4 (3) of the Act, making the offence more serious and grave. The
court has considered the need for imposing deterrent punishment in view of declining sex
ratio particularly in the said Taluka and status of the accused as Doctor by profession,
casting further responsibility upon him to obey the law. The Court accordingly sentenced
him to suffer rigorous imprisonment of 1 year and to pay fine of Rs. 5000/- in default to
suffer further simple imprisonment of two months.
In this case for the first time the Proviso to Section 4(3) of the Act and its effect was
discussed. Failure of the Accused in discharging the burden shifted upon him by this
Proviso was one of the factors resulting in his conviction.

The Court also took note of Section 28(1)(a) of the Act while rejecting the contentions of
the defence that complaint was not filed by the Police or before the Police. The Court
also rightly rejected the various contentions about improper procedure of search, seizure
and sealing, which are routinely raised in various proceedings.
The most important part of the judgment is that the court has directed the copy of
judgment to be given to the Appropriate Authority through Civil Surgeon, Jalgaon for
reporting the name of accused to the State Medical Council for taking necessary action
against him as per Section 23 (2) of the Act. It is reported that now the Civil Surgeon has
already taken necessary action
The Credit for the success of the case to some extent also goes to Assistant Public
Prosecutor for bringing sufficient oral and documentary evidence on record by examining
the complainant, panch and Medical Officer and by proving Panchnama and Authority
Letter.
 P a g e | 67

CHAPTER V

INTERNATIONAL ORGANISATIONS DECLARATIONS

5.1 FOETUS RIGHTS AS HUMAN RIGHTS

The Universal Declaration of Human Rights was the first major international human
rights instruments to explicitly recognize economic, social and cultural rights. The canon
has been extended to provide explicit protection for group rights, such as, the right of
self-determination, right of indigenous peoples, and for the groups that are especially
vulnerable such as children, the elderly, the disabled and refugees. Human rights may be
usefully defined as universal, moral rights, which all persons possess inherently and
equally because they are human beings.

The traditional natural law theory of rights that has come down from the stories, medieval
Christian theology, and the Enlightenment, by and large upheld the view that rights are
natural. On this account natural or human rights exist as moral laws, only post-modernist
criticism received by modern human rights conception about its universalities is that, it’s
only an expression of North Atlantic bourgeoisie137 intellect community with its cultural
ethos, especially the white males, who have confounded their ideology to all societies, in
a genderless way. Sexual discrimination is not separately emphasized, although it could
be argued that it is the most common world-wide discrimination. Women are often given
less to eat than men in certain civilization where food is short, they may receive less
medical attention, and in some cases, infant female infanticide has been practiced.
Female Foeticide is the modern substitute for infanticide.

With the decline in family authority and human values the sense of right and wrong is
easily submerged by the pressure exerted by competition, race for material success and
above all the cult of individual freedom, even at the cost of social and familial cohesion.
This being a deep malaise if the root of social collapse.138

It is a well-known fact that the age of the child is counted from the birth of the child. The
unborn child is not included while defining person Indian Constitution of any other law.

IyerArthi, “Women and Human Right”, p. 53, Periyar Publications, Chennai.

137
138
Sharma Gokulesh, “Human Rights and Legal Remedies”, p. 544-545, Deep & Deep Publications, New
Delhi, 2000.
 P a g e | 68

In the famous American cases of Roe V. Wade; Doe V. Bolton, it was argued that an
unborn child is a person according to the 14th Amendment of the constitution of United
States, hence, it cannot be deprived of its life without the due process of law. But in both
the cases Supreme Court observed that unborn child is not a person under the 14th
Amendment of tire constitution of United States. Life commences at the moment of
conception and continues throughout pregnancy, hence the state has compelling interest
in saving the life, form and after its conception, but we are not to resolve the difficult
question that when it commences. When the persons expert in their respective fields of
medicine, philosophy and theology are unable to arrive at a definite conclusion. The
judiciary at this juncture in the development of man’s knowledge is not in a position to
form an opinion as answer.139 However in Roe V. Wade140 the right to a woman to choose
whether or not to terminate pregnancy was recognized as fundamental.

In many cases the women are not independent agents but merely victims of a dominant
family ideology based on preference of male child. On one hand, the motherland and
mother are treated as an embodiment of paradise in our country but on the other hand,
female foeticide has become a general phenomenon, which is a matter of shame to all of
us. Millions of people refer male progeny and considered bearing sons as essential to
extend the lineage. In the bargain thousands of female fetuses are aborted. A proper
education will create awareness of self-esteem and enlighten them of their own rights.
Then they will be able to stand on their foot and raise their voices against this so-called
general phenomenon.

American convention on Human Rights (1969) states under its chapter II Article 4 (Right
to life) “every person has the right to have his life respected. This right shall be protected
by law and, in general, from the moment of conception. No one shall be arbitrarily
deprived of his life”.141 Here the right to life is extended so as to cover the fetus rights
also.

The constitution of Ireland also recognizes similar rights as part of their personal rights :
it says “ the state acknowledges the right to life of the unborn and, with due regard to the
equal right to life of the mother, guarantees in its laws to respect, and far as practicable,
by its laws defend and vindicate that rights”.142

139
Paul R.C., “Protection of Human Rights”, p. 23, Common Wealth Publications, New Delhi, 2001.
140
410 U.S. 113 (1973).
141
Fitzsimmons Richard, “Pro-choice / Pro-life issues in the1990s”. westpat: conn. Greenwood, 1996.
142
Article 40 of Constitution of Ireland.
 P a g e | 69

5.2 THE UNITED NATIONS ORGANISATION

The aims of the Charter of the United Nations signed on 26th June, 1945 are expressly
based on universal respect for human rights and for fundamental freedoms for all without
discrimination as to race, sex, language or religion.143

The Commission on Human Rights established in 1946 also included an Article entitling
every person, “to all rights and freedoms set forth in this Declaration, without distinction
of any kind, such as race, color, sex or social origin, property, birth or other status”. The
Commission of the Status of Women was established in 1946 to promote women’s
economic and social rights and for formulating global policies and recommendations for
the advancement of women.

The two Covenants that were adopted in 1966, “International covenant on Economic,
Social and Cultural Rights” and “International Covenant on Civil and Political Rights”
guaranteed that the rights enunciated in these covenants “will be exercised without
discriminations of any kind as to race, color, sex, language, religion, national or social
origin property, birth or other status”. The Covenants also ensure that equal rights of men
and women on the enjoyment of all economic, social and cultural rights and of all civil
and political rights.144

The Convention on the Elimination of All Forms of Discrimination against Women

adopted by the U.N. General Assembly in 1979. Consisting of a preamble and 30 articles,
it defines what constitutes discrimination against women and sets up an agenda for
national action to end such discrimination.145 According to the Convention,
“discrimination against women” is a violation on the basis of sex of human rights and
fundamental freedoms in the political, social, economic, cultural, civil or any other
field.146 The article is based on the principle of equality between men and women.

By recognizing the Convention, independent nations of the world commit themselves to

undertake a series of measures to end discrimination against women in all forms. The
convention affirms the reproductive rights of women, right to acquire, change or retain
their nationality and the nationality of their children. The independent Nations of the
world agree to take all appropriate measures including legislation so that women can
enjoy all their human rights and temporary special measures and fundamental freedom.

Therefore, United Nation Organization, through its Conventions, Declarations, etc., has
made attempt to elimination sex-selective discrimination i.e. Female Foeticide and made
it legally binding in nature.

143
Mishra Jyotsna, “Women and human rights”, p.219, Kalpaz publication, 2000.
144
Agarwal H.O, “Human Rights”, p. 39-43, Central Law Publications, Allahabad, 2001.
145
Mishra Jyotsna, “Women and human rights”, p.219, Kalpaz publication, 2000.
146
Article 1 – CEDAW (Source : Brochure – American Information Resource Centre, Mumbai)
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5.2.1 UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)

The Universal Declaration of Human Rights (UDHR) is a milestone document in the

history of human rights. The Universal Declaration of Human Rights as adopted by the
United Nations in 1948 incorporated the basic rights of the children for growth and
education. On 10 December 1948, the General Assembly of the United Nations adopted
and proclaimed the Universal Declaration of Human Rights (UDHR). It sets out, for the
first time, fundamental human rights to be universally protected. In incorporating
Fundamental Rights in Part III of the Constitution of India and Directive Principles of
State Policy in Part IV, the Constitution makers were influenced by the just adopted
UDHR. Article 1 of the UDHR states “All human beings are born free and equal in
dignity and rights.” Article 2 states that “Everyone is entitled to all the rights and
freedoms set forth in this Declaration, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status. Furthermore, no distinction shall be made on the basis of
the political, jurisdictional or international status of the country or territory to which a
person belongs, whether it is independent, trust, non-self-governing or under any other
limitation of sovereignty”.
Article 3, the first cornerstone of the Declaration, proclaims the right to life, liberty and
security of person - a right essential to the enjoyment of all other rights147.

However, the fact is that even these basic human rights are denied to the girl child and
India has a long way to go before the human rights of the girl child are enforced.

5.2.2 “DECLARATION OF THE RIGHTS OF THE CHILD” AND “THE

CONVENTION ON THE RIGHTS OF THE CHILD”

The Geneva Declaration on the Rights of the Child in 1924 was the first convention of
the League of Nations to discuss on rights of the child.
An independent ‘Declaration of the Rights of the Child’ was made by United Nations in
1959. This emphasized the special protection and care of the child to develop in a normal
and healthy manner, an atmosphere of freedom and dignity. The United Nations
Declaration emphasized child-welfare having application to every social condition by
conferring specific rights on children through social security legislation prohibiting all
sorts of discrimination. By the present Declaration of the Rights of the Child is
commonly known as “Declaration of Geneva”. This was the basis of the “Convention of
the Rights of the Child”.
Principle 1 of the Declaration provides that “the child shall enjoy all the rights set forth in
this Declaration. Every child, without any exception whatsoever, shall be entitled to these

147
Universal Declaration of Human Rights, Available At:
http://www.ohchr.org/en/udhr/pages/introduction.aspx
 P a g e | 71

rights, without distinction or discrimination on account of race, color, sex, language,

religion, whether of himself or of his family”. Principle 4 states that “The child shall
enjoy the benefits of social security. He shall be entitled to grow and develop in health; to
this end, special care and protection shall be provided both to him and to his mother,
including adequate pre-natal and post-natal care. The child shall have the right to
adequate nutrition, housing, recreation and medical services”.
Therefore, according to the declaration, Female Foeticide is prohibited by the declaration.
There should not be violation of any principle entitled under the declaration.
The United Nations Convention on the Rights of the Child (UNCRC) is an international
human rights treaty that grants all children and young people (aged 17 and under) a
comprehensive set of rights. On November 20, 1989, the General Assembly of United
Nations adopted a convention on Rights of the child which was ratified by 107 member-
countries and India was a signatory to it. The convention contains 54 articles, each
dealing with different types of rights. These can be divided into four broad categories of
rights, such as – survival rights, developing rights, protection rights and participation
rights.

Survival rights cover a child’s right to life and the basic need for existence which
include an adequate living standard, shelter, nutrition and access to medical services.
Developing rights include the aspects that hold children to reach their fullest potential
such as information, freedom of thought, conscience and religion.
Protection rights require that the children be safeguarded against all forms of abuse,
neglect and exploitation which include child labour, drug abuse, sexual exploitation,
abuses in criminal justice system, etc.
Participation rights allow children to take an active role in their communities and
nations; these encompass freedom of expression, freedom to join associations and
assemble peacefully which are necessary for preparation of complete and responsible
adulthood.
The convention on the rights of the child was adopted and opened for signature,
ratification and accession by General Assembly resolution 44/25 of 20 November 1989
entry into force 2 September 1990, in accordance with article 49 148. Article 6 of the
Convention on the rights of the child provides that the state shall recognize that every
child has the inherent right to life. It also casts the duty upon the state to ensure to the
maximum extent possible the survival and development of the child.149
Female Foeticide is the crime whereby the parents determine the sex of the child while it
is in the womb; the girl child is killed even before she is born for the reason that it is a
female foetus.

148
Convention on the Rights of the Child, Available At:
http://www.ohchr.org/en/professionalinterest/pages/crc.aspx
149
United Nations Reference in the Field of Human Rights, New York: U.N. Publications, 1993, pg. no.
73-77.
 P a g e | 72

The Convention on Rights of the Child casts a duty upon the state to ensure that no child
is discriminated against on the basis of sex. However, the question is whether under the
CRC the definition of child being a ‘human being up to the age of 18 years’ was intended
to include an unborn child? The human being ‘up to the age of 18 years’ would include
the period both ‘before’ and ‘after’ birth, until the point the child reaches the age of 18.
Also, in Article 24 which urges the state to ensure proper pre-natal care for mothers it can
be inferred that the CRC is concerned with the interests of the child even before it is born
thus India is under an obligation under the CRC to take all possible measures to prevent
the practice of female foeticide, which represents the worst manifestation of sex
discrimination.

Discrimination and neglect in childhood initiates a lifelong downward spiral of

deprivation and exclusion from the social mainstream. Indicators show that the girl child
is discriminated against from the earliest stages of life, through her childhood and into
adulthood. The reasons for the discrepancy include, among other things, harmful attitudes
and practices, such as preferences for sons - which results in female infanticide and
prenatal sex selection - early marriage, including child marriage, violence against women,
sexual exploitation, sexual abuse, discrimination against girls in food allocation and other
practices related to health and well-being.

Certain social trends have in fact made the situation worse, as borne out by the fact that
the girl child is discriminated even before her birth in the form of foeticide and after birth
in the form of infanticide, and numerous other forms of violence and parental neglect.
The third article of the Universal Declaration of Human Rights says that everyone has the
right to life, liberty and security of person. However, the girl child is denied these basic
human rights every day in large measures.

5.2.3 CONVENTION ON THE ELIMINATION OF ALL FORMS OF

DISCRIMINATION AGAINST WOMEN

CEDAW is the predominant international treaty dealing with outlawing discrimination

against women adopted in 1979 by the UN General Assembly. It is often described as the
international bill of rights for women. It entered into force as an international treaty on 3
September 1981 after the twentieth country had ratified it. By the tenth anniversary of the
Convention in 1989, almost one hundred nations have agreed to be bound by its
provisions150.

The year 1979 was declared as international year of child by United Nations which gave
importance to the cooperation of the nations in the common task of meeting the basic

150
Convention on the Elimination of All Forms of discrimination against Women, Available At:
http://www.ohchr.org/en/ProfessionalInterest/pages/cedaw.aspx
 P a g e | 73

needs of children i.e. nutrition, health, education, maternal protection, family care, equal
social status and protection from racial and other forms of discrimination. This was a
challenge to the conscience of mankind and to the community of nations.

The jurisprudence of the Committee on the Elimination of Discrimination against

Women (CEDAW Committee), which interprets and monitors state compliance with the
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), makes clear that the fundamental principles of non-discrimination and
equality require that the rights of a pregnant woman be given priority over an interest in
prenatal life151.

In the case of L.C. V. Peru, the CEDAW Committee found that the government had
violated a pregnant girl’s rights by prioritizing the fetus over her health by postponing an
essential surgery until the girl was no longer pregnant. The girl’s continued pregnancy
posed a substantial risk to her physical and mental health, and the CEDAW Committee
held that the denial of a therapeutic abortion and the delay in providing the surgery
constituted gender-based discrimination and violated her rights to health and freedom
from discrimination152. The CEDAW Committee has further expressed concern that
women’s rights to life and health may be violated by restrictive abortion laws.

Multiple international organisations such as the CEDAW Committee and the Human
Rights Committee (HRC) have called upon states to ensure the eradication of gender
selective abortions, although there is no international piece of legislation which explicitly
calls for a ban on gender-specific abortions. All current international treaties also call
upon state parties to eradicate discrimination based upon gender that underlie sex-
selective abortions.

Article 16 of the Convention grants women the right to be able to choose the number and
spacing of her children. There has been controversy over this provision in relation to sex
selection as some argue that this means she has the right to choose the gender of her
offspring, however the CEDAW Committee has explicitly called upon State Parties to
eradicate the practice of sex selection. The Committee recognizes the importance of
women’s right to health during pregnancy and childbirth as it is closely linked to their
right to life. CEDAW has consistently criticized restrictive abortions law, particularly
those which prohibit and criminalize abortion in all circumstances, and note that such

151
Convention on Elimination of All Forms of Discrimination Against Women, adopted Dec. 18, 1979,
Art. 12, G.A. Res. 32/180, UN GAOR , 34th Session , Supp. No. 46, U.N. Doc. A/34/46 U.N.T.S. 13
(entered into force September 3, 1981). See also, Committee on the Elimination of Discrimination against
Women (CEDAW Committee), General Recommendation No. 24: Article 12 of the Convention (wealth
and health), (20th Session, 1999), in Compilation of General Comments and General Recommendation
Adopted by Human Rights Treaty Bodies , 11, U.N. Doc. HRI/GEN/1/Rev.9 (Vol. II) (2008).
152
L.C. V. Peru, CEDAW Committee, Comme’n No. 22/2009, 8.15, U.N. Doc. CEDAW/C/50/D/22/2009
(2011).
 P a g e | 74

legislation leads women to obtain illegal and unsafe abortions which may result in their
death. In addition, Article 5(a) of the Convention requires State Parties to modify social
and cultural patterns of conduct to try and eliminate prejudicial and customary practices,
which are based on the inferiority or superiority of either of the sexes. The CEDAW
Committee has expressed concern regarding sex-selective abortion, and has subsequently
called upon states parties to implement a comprehensive strategy to overcome traditional
stereotypes regarding men and women’s roles in society, which underlie the practice. The
Committee has also recommended that a state party monitor implementation of national
legislation prohibiting sex-selective abortion. India signed the treaty in July 1980 and
ratified CEDAW in July 1993. Gender-selective abortions are not considered legal under
international law because they reinforce discrimination against women153.

5.3 EUROPEAN CONVENTION ON HUMAN RIGHTS154

The European Convention on Human Rights is the first Council of Europe’s convention
and the cornerstone of all its activities. It was adopted in 1950 and entered into force in
1953. Its ratification is a prerequisite for joining the Organisation.
The European Court of Human Rights oversees the implementation of the Convention in
the 47 Council of Europe member states. Individuals can bring complaints of human
rights violations to the Strasbourg Court once all possibilities of appeal have been
exhausted in the member state concerned. The European Union is preparing to sign the
European Convention on Human Rights, creating a common European legal space for
over 820 million citizens155.
Article 2(1) of the European Convention on Human Rights (“Convention”) guarantees
that “everyone’s right to life shall be protected by law”. Yet “everyone” and “life” are not
defined
within Article 2, nor elsewhere in the Convention. Although confronted with the issue in
1992, the European Court of Human Rights avoided defining whether “everyone’s right
to life” includes the unborn child. If the European Court of Human Rights were to find
that “everyone” includes unborn human beings, and therefore “everyone’s right to life”
protects the unborn child, the abortion laws of many member states would then be held in
contravention of the European Convention.

Since the European Convention does not expand explicitly on the scope of Article 2 as
applied to unborn Children. The fetus is in fact covered by “everyone” within the
meaning of Article 2. First, Neither the ECtHR nor the former Commission has ever

153
StallardRoisin, “Sex- Selective Abortion in India”, Child Reach International, Available At:
https://www.childreach.org.uk/sites/default/files/imce/India%20Sex%20Selective%20Abortion%20FINAL.
pdf
154
PichonJakob, “Does the unborn child have a Right to Life” Vol. 7. Available
At:http://www.germanlawjournal.com/pdfs/Vol07No04/PDF_Vol_07_No_04_433-
444_Developments_Pichon.pdf
155
European Convention on human Rights, Available At: http://human-rights-convention.org/
 P a g e | 75

completely excluded the possibility of application of Article 2 to the fetus. Instead, the
ECtHR has repeatedly applied the “even assuming” formula which would not have been
necessary if Article 2 had been considered to be entirely inapplicable.

Second, there is no crucial difference between a fetus and a child already born, because
both are similarly dependent upon their mother. The mere fact that the fetus does not
have an independent existence from its mother does not lead to a different result and, as
this case illustrates very well, separate protection is needed at least for the viable fetus
and its mother. In order to prohibit techniques such as the reproductive cloning of human
beings and provide a strict framework for techniques with a proven medical interest.
Consequently the interpretation of Article 2 must evolve with these new developments,
requiring now the inclusion of the right to life of the fetus.

A fetus falls, notwithstanding the existence of the Contracting States’ laws on abortion,
into the scope of Art. 2 of the Convention. Art. 2 implies – like other rights of the
Convention – positive obligations.

All High Contracting Parties punished abortion as a crime when the European
Convention came into force. Therefore, the European Commission of Human Rights
(“European Commission” or “Commission”) did not consider the relationship of abortion
and
the right to life in Article 2 until member states began.

It would be possible to recognise the right to life of the unborn child, under article 2 of
the European Convention, without necessarily jeopardising the rights of the mother or the
diverse traditions of the State Parties.
Article 14 of the Convention states that the enjoyment of the rights and freedoms set forth
in this Convention shall be secured without discrimination on the ground of sex156.

Article 1 of the Protocol No. 12 to the Convention for the Protection of Human Rights
and Fundamental Freedoms states the general prohibition of discrimination “The
enjoyment of any right set forth by law shall be secured without discrimination on any
ground such as sex. No one shall be discriminated against by any public authority on any
ground such as those mentioned in paragraph 1”157.

Therefore, the rights have been conferred by the convention to the girl child which
eradicates the practice of Female Foeticide.

156
European Convention on Human Rights,Available At:
http://www.echr.coe.int/Documents/Convention_ENG.pdf
157
Supra 20
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5.4 VIENNA CONFERENCE ON HUMAN RIGHTS AND VIOLENCE

AGAINST WOMEN

The human history bears witness to occurrences of violence against women on account of
sex discrimination. Women are equally entitled to human rights. Violence against women
is a subject which concerns the world over. Although violence against women is a global
problem, it is yet to be recognized as an issue of human rights.

On 25th June 1993, representatives of 171 states adopted by consensus the Vienna
Declaration and Programme of Action of the World Conference on Human Rights. It
recognized that the human rights of women and of the girl child are an inalienable,
integral and indivisible part of universal human rights. The full and equal participation of
women in political, cultural, economic, social, civil life, at the nationals, regional and
international levels and the eradication of all forms of discrimination on the ground of sex
are priority objectives of the international community158.

Gender-based violence and all forms of sexual harassment and exploitation, including
those resulting from cultural prejudice and international trafficking, are incompatible
with the dignity and worth of the human person, and must be eliminated. This can be
achieved by legal measures and through national action and international cooperation in
such fields as economic and social development, education, safe maternity and health
care, and social support.

The human rights of women should form an integral part of the United Nations human
rights activities, including the promotion of all human rights instruments relating to
women.

The World Conference on Human Rights urges Governments, institutions,

intergovernmental and non-governmental organizations to intensify their efforts for the
protection and promotion of human rights of women and the girl-child.

The conference urged government, institutions, inter-governmental and non-government

organizations to intensity their efforts for the protection and promotion of human rights
of women and the girl child159.

158
World Conference on Human Rights,Available At
:http://www.ohchr.org/EN/ABOUTUS/Pages/ViennaWC.aspx
159
U.N. dept. of public information – 1995 on Vienna declaration and programme for action, Available At :
http://www.legislationline.org/documents/action/popup/id/7701
 P a g e | 77

5.5 THE SOUTH ASIAN ASSOCIATION for REGIONAL CORPORATION ON

GENDER JUSTICE AND FEMALE HUMAN RIGHTS

In the SAARC countries the major initiative in attention towards women’s problems was
through its declaration of the SAARC decade of the GIRL Child 1991-29000 A. D.

The consensual aims of the plan of action drafted and approved accordingly include160:

1. Survival and protection of the girl child and safe motherhood, especially aimed at
making her economically independent
2. Special protection for vulnerable girl children in difficult circumstances and
specially those belonging to economically and socially deprived, or physically,
mentally disabled groups.

As contrasted with the global debate, the debate amongst SAARC countries focuses on
comprehensive growth and development of the girl child. This apart, themes like
prevention of female infanticide and female foeticide have high priority in both the global
and the regional agendas.

Other than the social themes that engage attention on the growth of girl child in society,
developmental themes are also dominant which show the plans to reduce infant mortality
rate and elimination of severe and moderate malnutrition.

At the regional level, the countries have shown sensitivity to attend to themes that are
specific to the country or society involved. Thus, the Government of India paid special
attention to girls from socially disadvantaged sections like scheduled castes and tribes.
The children with AIDS or parents affected by AIDS also figure in the picture, apart from
the physically or mentally disabled.

The SAARC convention also set up a research cell to look into various complexities and
give a situational analysis of the “Girl Child and the Family”, as part of the SAARC Year
of Girl Child161.

Hence, all forms of discrimination against the girl child and violation of her rights shall
be eliminated by undertaking strong measures both preventive and punitive within and
outside the family. These would relate specifically to strict enforcement of laws against
prenatal sex selection and the practices of Female Foeticide, female infanticide, child
marriage, child abuse and child prostitution etc. Removal of discrimination in the

160
National Commission for Women – Brochure, 1998.
161
National Commission for Women – Brochure, 2001.
 P a g e | 78

treatment of the girl child within the family and outside and projection of a positive
image of the girl child will be actively fostered. In implementing programmes for
eliminating female foeticide, there will be a special focus on girl children.Therefore, at
international level, the rights of girl child are also protected by the Conventions and
Declarations.
 P a g e | 79

CHAPTER VI

CONCLUSION AND SUGGESTIONS

India’s legal framework stipulates equal rights for all, regardless of gender. In practice,
however, unequal power equations between males and females have led to violations of
women’s reproductive rights. The girl child has often been a victim to the worst forms of
discrimination. Gender bias, deep-rooted prejudices, and discrimination against the girl
child have led to many cases of female feticide in the country. Strong male preference,
with the extreme consequence of elimination of the female child, has continued to
increase rather than decline with the spread of education and economic development.
This trend has been helped further with the progress in science and technology. Now,
modern techniques are available to select the sex of fetus before or after conception.
Female infanticide now in most places has been replaced by female feticide. Denial to a
girl child of her right to live is one of the heinous violations of the right to life. It has,
however, been reported that the moral guilt attached to elimination of the girl child after
she is born is not felt equally if the child is eliminated while still in the womb.

The decline in the child sex ratio is not a problem of numbers alone. The very status of
women, and the gains that have been made in this regard over the years, are at stake. The
likelihood is that with fewer women in society, violence against women in all forms
would go up. This atmosphere of insecurity would lead women to confine within the four
walls of their home. This is not the only manifestation of the threat of serious disruption
in the social fabric. If this decline is not checked the delicate equilibrium of nature can be
permanently destroyed. Female infanticide may occur as the deliberate murder of a girl
infant or young girl child or as the result of neglect. Selective abortion appears to be
increasing as a result of new sex-detecting, prenatal technologies. Worldwide, there are
several cultural and economic reasons for the preference of sons over daughters.

Female infanticide and selective abortion are most often practiced in societies where it is
believed that having a girl child is culturally and economically less advantageous than
having a boy child. Parents who strongly prefer sons but who can support only a small
family may choose to murder or abort a girl and attempt to have a female infanticide.”
Female infanticide may be committed deliberately or through neglect. In some cultures,
 P a g e | 80

female infanticide is so widely known as a traditional practice that the methods are part
of community lore.

Neglect that results in female infanticide is more widespread and insidious. There often is
a correlation between a strong son preference and a health disadvantage for females, a
disadvantage exacerbated when resources are scarce. The World Health Organization
(WHO) reports that men and boys often receive preference within households, including
higher expenditures on medicines and health care. Among humans, females are
biologically stronger than males, yet data on mortality and nutrition for girls suggest that
in many settings their social disadvantages outweigh their biological advantages.

Medical technology makes it easier for parents to discover the sex of a fetus at earlier and
earlier stages of pregnancy. Such techniques have been developed to check a fetus for
genetic or birth disorders, but in societies where son preference is strong, parents are
eager to discover the sex of a fetus as soon as possible. As this technology spreads around
the world, many women from communities with a preference for boys practice selective
abortion, and abort fetuses sole because they are female. Acting on son preference at an
even earlier stage, clinics that offer pre-pregnancy sex-selective technology are doing a
booming business despite laws against sex-discriminatory techniques. In countries where
female fetuses are aborted in favor of male fetuses, there has been a steady decline in the
number of female births over the past decade. Coupled with a higher mortality rate for
girl children due to neglect or murder, the ratio of women to men has noticeably fallen in
comparison to countries where female infanticide and selective abortion are not practiced.

Traditional cultural practices reflect deeply rooted values and beliefs. Son preference is
exhibited in many cultures and is not unique to developing countries or rural areas,
although it is stronger in countries where patriarchy and patriliny are prevalent. Societies
that expect women to live and express themselves within narrowly defined gender roles
also often exhibit cultural practices that benefit men and harm women and girl children.

Family lineage and the family name are carried on by male children in many societies,
leading parents concerned about their family’s future generations to hope for a son and
possibly murder or abort girl children in order to get an heir. Some societies practice rigid
social customs that make girls much more expensive to raise than boys. In parts of India,
for example, families are expected to hold religious or social ceremonies for a girl that
would not be held for a boy. These

Ceremonies can be very expensive—often requiring a family to provide a feast or gifts

for everyone in their village. “Proper” ceremonies for even one girl can ruin an already
poor family, and inadequate ceremonies are grave social disgraces. A family may choose
to kill a girl child rather than take on the expense, indicating the belief that a family’s
social status outweighs the value of a girl child’s life.
 P a g e | 81

People who determine the value of a girl child only in terms of wealth have little regard
for her value as a person. If tradition determines that she can only materially benefit her
husband’s family when she is grown, and her family lost wealth spent on her upbringing,
then her value is slight. Women who live in societies where they are made miserable
through injustice and inequality may not want to raise daughters who will live lives as
unhappy as their own. Women have used this excuse as a rationale for killing their girl
children. “Many women in feudal areas of India don’t want to have a daughter who
would go through the same misery, humiliation and dependence that seemed to define
their own lives.

It is difficult to determine how many girl children have been lost to female infanticide
and selective abortion. More than two thirds of the world’s population, according to the
UNHCHR, live in countries where death rates are not published by sex. However, the
population numbers in countries where female infanticide and selective abortion are
practiced often show a disproportionate ratio of women to men. Researchers sometimes
disagree as to the precise causes of gender skews in population ratios, but evidence from
smaller geographic areas where sex selective practices are known to occur is very
convincing.

The cultural and economic factors that lead to female infanticide and selective abortion
are part of the vicious cycle of discrimination against women and their devaluation. The
preference for sons, however, is not the only reason for the practice of female infanticide
and selective abortion. There are actual disincentives and costs associated with raising
girl children that influence choices made in communities where this abuse is practiced.
The same social practices reflect a community’s low estimation of women in general. In
general, girls still have lower economic earning potential than boys. A poor family may
not want the added expense of another child unless that child will someday bring
economic wealth back to the family. “Compared with men, women have fewer
opportunities for paid employment and less access to skill training that would make such
employment possible,”

As the Indian government increased criminal penalties for female infanticide, the
availability of

Sex-determining technologies such as ultrasound scanning have led to a rise in sex-

selective abortion. The Indian Medical Association (IMA) estimates that five million
female fetuses are aborted each year, and estimated in 1999 that India had approximately
20,000 ultrasound clinics, most unregistered and staffed by unqualified doctors.27 In the
Indian states of Punjab, Haryana and Uttar Pradesh, mobile vans take sex-detection
clinics to outlying villages. “You will find an ultrasound machine even in a village which
has a road over which only a bullock cart can go, and electricity to run the machine and
nothing else,” said one ultrasonographist, as reported in The Hindu, a national newspaper.
 P a g e | 82

Because the Indian demand for fetal sex-determination is so great, doctors can ask for
high fees, which have resulted in an increase in fetal sex-determination and abortion
businesses and abuses.

For example, the IMA revealed that some sex-determination centers perform ultrasound
scanning weeks before the fetal sex can be determined and charge women to undergo
repeated and unnecessary ultrasonography. Unethical scan centers and doctors have told
expectant parents they have a female fetus in order to collect the abortion money.

The problem of female foeticide cannot be solved by any number of laws. However,
strong may be their provisions. It is a reflection of the position of women in the society.
To curb this practice, a broad and objective approach to the problems faced by females at
large is necessary and realistic efforts at their empowerment shall made by securing them
economic freedom.

6.1 LACUNAS IN THE EXISTING LAWS

The practice of female foeticide causes an imbalance between the number of males and
females in the society. Gender differences seem to be at the root of all the ways daughter
elimination can be looked at. Women are considered as a liability ad as a threat to the
survival chances of the early societies. According to the mindset of many Indians it is
better to invest in a son than in a daughter. The socio cultural perspective focuses on
gender differences in household level and the demographic perspective talks about
gender differences in the desired family composition. Sex ratio indicated the proportion
of the number of men and women in a certain society. In India, the sex ratio is calculated
as the number of females per 1000 males. The sex ratio in India indicates a high level of
deficit of women in the population. Around 36 million women are missing and with a
decline in the sex ratio this number is likely to increase in future. Therefore, the Indian
sex ratio can thus be characterized as an adverse and a declining one, which is favorable
to males when looking at the whole country.
There is an immediate requirement for stringent regulations to keep a continuous check
on such tradition, which is carried on in many parts of India. The first legal response
came from the government of India in form of Pre-Natal Diagnostic Techniques Act,
1994 (PNDT) which was further amended into Pre-Conception and Pre-Natal Diagnostic
Technique (Regulation and Prevention of Misuse) Act, 2004 (PCPNDT). There are
various provisions under the Act that play an important role in preventing the practice of
female foeticide. This was a powerful legal instrument to foster positive change in this
modern sociological trend. The implementation though has remained weak and not
effective. The number of cases that has led to conviction is so low that it makes an
investigation of the implementation of the Act essential.
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In spite of various stringent provisions made in the existing laws, the problem of female
foeticide is on as increase. This is evident from the declining sex ratio n at birth and the
findings of various study groups who undertook the study at micro level in different parts
of the country. The problem lies in the attitude of the society at large towards the
construction of family and towards the place of female child in the family. There is also
lack of political will among the policy framers and implementers. Certain inherent
lacunae have been found in the enactment and implementation of law.

The law is intended to regulate the sex determination and thereby to check the female
foeticide. The law is not designed to ban or eliminate female foeticide. As pre-natal
diagnostic techniques are essential to diagnostic genetic and hereditary disorders of the
foetus, it is not possible to ban such test. Liberalization of laws relating to abortion is also
need of the time and hence what the law could do is to provide safeguards. Corruption,
bureaucratic hassles and redtapism have added fuel to the fire.

It is found that most of the hospitals, clinics and the machines used for pre-natal
diagnoses neither are nor registered as required under PNDT Act. The economic and
social structure that is essential for securing implementation of laws does not exist in
India. The patriarchal attitude of society hinders the effective implementation of the law
and it is against the interests of women.

Though there is provision to suspend or cancel the registration of medical practitioners

found guilty under the PNDT Act, the task is entrusted to the Indian Medical Council.
The Medical Council usually does not resort to such a practice. Therefore, it is suggested
that power shall be vested with the court, which is competent to try the cases under the
Act.

Another important lacuna is that the interested persons and groups cannot complain and
bring out an action under the Act. The consequence is that the actual practice of female
foeticide often goes unreported. The lack of effectiveness in the implementation of law is
evident from the unofficial reports that an approximately 20 lacs female foeticide are
aborted every year in our country, but there is hardly any case is seen registered
exclusively against this crime.

The female foeticide is purely a human right issue. It is a result of abuse of scientific
technology. It depicts the powerlessness of women against an ideological onslaught of
forces opposed to the independence of and emancipation of women.

All female rights are and shall be human rights. The concept of right to life and other
human rights shall be extended beyond the traditional concept of life; so as to cover the
foetus rights too.
 P a g e | 84

1. The problem of female foeticide is persistent for a long time in India, but the law
has addressed this issue as a distinct legal problem only.
2. The advancement of medical technology and improvement in the conditions of
life of people, and the consumer culture that is being cultivated by people now has
aggravated the situation.
3. There is a clear preference for male children in Indian societies; especially in the
Northern and Western regions due to social convictions as well as economic
reasons.
4. Education and social status is no barrier for those who are interested in Female
foeticide.
5. Though poverty can be attributed as one of the chief reasons; this practice is
prevailing among the affluent class in the society.
6. The interest and wished of the females are not taken into consideration while
resorting to foeticide. Usually the females are subjected to the pressure of
husbands and relatives.
7. Punishing the females who get themselves aborted will not serve much purpose.
8. Hospitals, clinic and medical profession by and large see it as a lucrative business.
9. The existence of laws though armed with strict provisions has been proved to be
ineffective in operation.
10. The people have very low legal awareness.
11. People do not feel the guilt in killing the foetus as they think there was no lige in
it. Therefore, it is highly necessary to recognize the foetus rights as human rights.
12. The doctors are also not aware of the seriousness of the law.
13. The problem persists because women’s rights have not been given due
recognition in our society. Women’s right to control her own body, women’s right
to choose the sex of the offspring and even women’s rights to have sex or not in a
marital relationship have not received due attention.
14. The decision-making ability of women relating to the child in family is restricted
by cultural practices.
15. This problem cannot be viewed in isolation as it forms part of the large arena of
atrocities against women.
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6.2 RECOMMENDATIONS AND SUGGESTIONS

The incidence of sex selective abortions is the worst form of gender based discrimination
against women. The causes for elimination of girl child indicate that the reasons are
similar and different upon the geographical location in which female foeticide is
practiced.

 An exorbitant dowry demand is one of the main reasons for female forticide.
 Some of the other reasons are the belief that it is only the son who can perform
the last rites, lineage and inheritance runs through the male line, sons will look
after parents in old age, men are bread winners etc.
Strong male preference and consequent elimination of female has continued to increase
rather that decline with the spread of education.

The recent technological developments in medical practice combined with a vigorous

pursuit of growth of the private health sectors have led to the mushrooming of a variety
of sex-selective services. The increase in female foeticide has been seen proportionate
decrease in female sex ratio which has hit an all-time low especially in the 0-6 age group
and if the decline is not checked the very delicate equilibrium of nature can be
permanently destroyed.

In order to stop this evil practice, the legislature has enacted certain laws which are the
Indian Penal Code, 1860; the Medical Termination of Pregnancy Act, 1971 and the Pre-
Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selective Act),
1994.

The Indian Penal Code is the first law which contained provisions under sections 312 to
316 for prohibiting miscarriage. These sections penalize violent of forced abortions. The
Medical Termination of Pregnancy Act, 1971 liberalised law and allowed termination of
pregnancy on medical grounds, humanitarian grounds and eugenic grounds. The real
efforts on behalf of legislature to curb the evil practice of female foeticide started with
the passing of Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse)
Act, 1994. The Act was amended in 2002 and renamed as the Pre-Conception and Pre-
Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. In order to prevent
female foeticide, the Pre-Conception and Pre-Natal Dignostic Technique (Prohibition of
Sex Selection) Act, 1994 provide provisions under which Supervisory Board,
Appropriate authorities and advisory committees are to be constituted by the Central
Government as well as by the State Government.

The extent and effect of enforcement of laws can be seen from the fact that the first
women who lodged a complaint five years ago, against her in-laws for pre-natal sex
determination still awaits for Justice. Despite all the hue and cry about missing daughters,
 P a g e | 86

till the end of January 2006, just 308 persons had been prosecuted, but not a single person
had been convicted under the PNDT Act.

Inspite of all the laws in place, the sex ratio is declining at a very high speed. Confronted
with this situation, it is high time to take preventive measures against female foeticide.
We have to stop looking for quick fixes and instead face the problem squarely. Female
foeticide cannot be addressed in isolation, so a holistic approach is necessary to stop
female foeticide.

Following are some suggestions to combat the evil of female foeticide:

1. The related social malaises such as dowry, poverty, women’s unemployment and
exploitation, lack of proper education to girl child and their dropouts early
marriage etc.are to be dealt with sternly by enacting proper laws and
implementing them in true spirit.
2. Affirmative action on part of the government and the corporate sector by
providing security for parents and granting financial aid to the girl child can help
in changing the mindset of the society of treating the girl as a burden.
Corporate initiatives, such as “BetiEkAnmolRatan” scheme in which the donations
are invested in mutual funds, KisanVikasPatras& National Savings Certificates in the
name of new born girls and on maturity (Age of 21 years) to be utilised for higher
education or marriage; has found favour with the parents and the scheme is yielding
positive results.

Government schemes like “LADLI” have created gender revolution in national

capital, and impacted sex ratio in favour of the girl child. Banks need to be
encouraged to give loans for female child’s higher education at lower rates of interest.
Old age pension should be given to parents with no sons and having only daughters.

3. Awareness programmes should be launched to make the woman aware about their
rights and about the ill effects of abortions. Women should know their rights
regarding adoption, maintenance, marriage, property, employment, education etc.
4. In order to make the females independent, women should be imparted skill and
training through various vocational programmes. Free and compulsory education
should be provided to female children so that they can support themselves during
exigency. Also it would remove the attitude that investing in girls is unnecessary.
5. As dowry is considered to be an important cause of female foeticide, the Dowry
Prohibition Act should be made more stringent by proper amendments and should
be implemented strictly.
6. Medical termination of pregnancy should only be permitted after approval of
PNDT authority/committee/gazetted female officer/MahilaPanchayat
 P a g e | 87

members/NGOs on proof of the existence of medical condition necessitating such

termination.
7. The foetus should enjoy the right to life and should enjoy distinct legal rights
which should be recognized from the conception, because failure to recognize the
right to life on the foetus will amount to discrimination violating Article 14 of
the Constitution of India. Regarding the Unborn Child’s rights in the realm of
torts, the Congenital Disabilities (Liability) Act, 1976, was passed by the British
Parliament providing for action that may lie against a person or authority whose
breach of duty to a parent results in a child being born disabled, abnormal and
unhealthy. Similarly the Nuclear Installation Act of 1965 (U.K.), recognizes
liability for compensation in respect of injury or damage caused to an unborn
child by occurrences involving nuclear matter or emission of ionizing radiation.
The Indian Parliament should enact laws on similar lines so as to ensure healthy
growth and safe birth of an unborn child.
8. Village level committees should be set up to watch the pregnant women besides
setting up the Appropriate Authorities and Advisory committees at the District
and Sub-District levels.
9. There is need for social awareness that girls can grow up to be as good as boys.
They can be good citizens, good earners, good providers for their family and for
their parents. That woman need not be sold for dowry or burnt for it that her
education can make her self-sufficient and economically blessed as a man. A clear
and strong social preference for the girl child is required to be created which can
be done by generating awareness.
10. In society, the members of the medical community enjoy a powerful position.
Medical professionals should counsel their patients and their families on the
importance of the girl child and impact of the skewed sex ratio on the society.
The Indian Medical Association, a professional body of practicing doctors, should
come forward and implement a ‘No Sex Determination Code’ for Doctors. The
Doctors need to be reminded of their sacred duty of protecting human life in any form
rather than becoming a party in destruction of human foetus in the womb. License to
practice medicine of those doctors, who are found guilty under the PNDT Act, 1994
or MTP Act, 1971 should be cancelled and they should be debarred from practicing
medicine for life. Step taken by the Indian Medical Association constituting a special
cadre of 50 doctors to self-police and make doctors understand their moral and legal
responsibility to ensure a healthy sex ratio, is a step in the right direction.

11. Although section 27 of the PNDT Act, 1994 makes the offences cognizable, non-
bailable and non-compoundable, the Police cannot take action in view of section
28 of the Act. This difficulty in initiation of criminal proceedings against offender
should be removed.
 P a g e | 88

12. The members of Appropriate Authority are mainly doctors and they are reluctant
to launch criminal proceedings against fellow doctors. Therefore, the enforcement
agency should be a different body of professionals consisting of police, social
workers and doctors.
13. Effective implementation of the PNDT Act needs to be assured through, ensuring
registration, curbing the spread of mobile ultrasound, regulating sale of new
machines, ensuring compliance of the Act like keeping records and submitting
them to the Authorities in time, preferably online like the birth records are being
done now; monitoring the functioning of these ultrasound clinics, complete audit
of all pregnancy ultra sounds across the country (audit all F forms submitted).
14. Laws prohibiting sex selective abortions should be strictly implemented and the
violators should be punished.
15. As most of the decisions are made by men in the families, they need to be
sensitized about the practice of female foeticide and consequences thereof. The
education curriculum should be made gender sensitive, leading to gradual
formation of a changed value system in coming generation.
16. A social audit of all documents received from sonography clinics and making the
data regarding sale of ultrasound machines, which are used for illegal sex
determination tests, should be made available online. Information received will
help governmental and non-governmental organisation in estimating the targets
for proper implementation of the Acts and for suggesting remedial measures to
combat the problem. By involving all the stakeholders, a comprehensive social
audit can be conducted to launch a crusade against female foeticide.
17. Determining the sex of the foetus as female and killing her subsequently amounts
to murder. So the punishment should be life imprisonment or death sentence as in
the case of intentional causing of death under section 300 of IPC.
18. A major hurdle in the endeavour to prohibit sex-determination and regulation of
PNDT techniques is that there is no proper duty laid upon any of the authorities in
the Act. Therefore, penalty must be imposed for non-performance of duties or acts
of commission or omission by the Authorities.
19. All abortions must be registered. In cases where a healthy female foetus is
aborted, both the doctor and the family should be brought to book.

Unless social action is supplemented with prompt implementation of regulations

under the law meant to stop female foeticides, such practices will continue to flourish
and sex selective abortions will make women endangered species. Time has arrived to
declare a crusade against female foeticide both on individual and collective level to
stop elimination of daughters only because of their sex.
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 FAMILY WELFARE MEASURES

The large size and rapid growth of population has been a major concern for India
throughout the time. It is no doubt advantageous for a country to be blessed with
abundant manpower; especially in the field of agriculture, production, defense etc. but the
large size of population alone is not a boon. It must be healthy, intelligent and productive.
The state must meet the necessities of shelter, food, health and hygiene, education and
employment of its subjects out the available resources. In India, the situation is different.
Majority of the population is below the poverty line; with inadequate supply food and
clothing. Not to speak of shelter. Drinking water itself has become scare. In health and
hygiene of stands at a low level internationally, 30-35% of the adolescence is thrown to
streets. The presumption is simple. In the absence of effective reallocation and equitable
distribution of income and wealth in the economy, the state cannot cater the demand for
the basic necessities of life of its masses even at the bare minimum level. Therefore, it is
highly necessary to strike a balance between the population growth and available
resources a between the population growth and available resources at the national level.

The attitude of the people through the ages and the cultural convictions has a lot of
bearing to this issue. Historically, it is considered as a matter of pride to be blessed with
maximum children. This belief is deep rooted in all religions. It has too many historical
reasons also. Right from the ancient times, we come across with the blessings of ‘Shat
putravathiBhava’ (be blessed with 100 sons) lavishly showered upon the bride by the
elders at the tie of marriage. The religious scriptures and epics also depict the importance
of having maximum children.

The phenomenon of population growth has direct effect on the female foeticide. There is
a predominant preference for male children over the females through the ages and
therefore, in the families the female child is often neglected and ill-treated. When the
family is faced with the hard realities of bringing up the children by giving proper
education, nutrition, hygiene, medicare and care; the family has to choose from their
resources and to fix priorities, the interest of the female child is often seen sacrificed. The
family at that juncture may have thousands of justification to offer and the society also
accepts it as usual.

Limiting the number of children in a family attains greater importance today. It is

important not only from the social and moral point of view, but also from the economic
angle. With lesser number of children, the family can provide them better education,
health care and nutrition. This will relieve the family of the burden of bring up the
children and in turn will half the cruel tendency of eliminating the female child on
economic reasons.
 P a g e | 90

There was no much attention paid to the measures of birth control during the pre-
independence era. After independence the visionaries of modern India like pt. Jawaharlal
Nehru were convinced about the need for the same and family planning was made one of
main policy in the governance of the country.

The very concept of ‘family planning’ was a controversial one from the beginning. There
was a stiff resistance from prominent quarters against this, stating that birth control is
immoral and anti-religious.

Fundamentalist elements though put up stiff resistance, could not properly base their
opposition on any religious scriptures or spiritual dictates and hence the resistance was
branded as unfounded and slowly subsided. On the other hand the religious resistance
from the Islamic and Christian corners was more stuff and borrowed support from their
scriptures and texts and the same is still continuing though low at intensity.

The efforts towards effective birth control gained momentum in India during the
seventies. The successive governments also took the task ahead. In a move to attract more
people to the programme and to create better awareness the programme was renamed as
‘family welfare measures’.

The government has a made a wide network covering the Government and private
hospitals and clinics to facilitate the implementation of the family welfare measures.
Widespread publicity was also give and catching slogans were coined as part of the
publicity. The advancement in the medical technology has simplified the means of birth
control.

Of late there seems to be slackness on the part of the government at center and states in
implementing the family welfare measures. The monitoring of the programme by the
government has become casual and money thirsty abortion clinics have started to take
advantage of the situation to indulge in female foeticide. This researcher had occasions to
meet at least a dozen-health workers and para-medical staff working in private hospitals
and clinics in different parts of the country who admitted that the clinics resort large scale
abortions to eliminate female foetus under the guise of family welfare measures. It is
revealed that 99 % of abortions done in a clinic Mumbas were female foeticide.

The most important element is to create awareness among the public on the importance of
the programme. Massive awareness campaign shall be taken out periodically and the
same shall reach out to the common man in the rural areas. This campaigns should
highlight the need for the family welfare measures and the advantages of it at the family
level. The effective implementation of birth control measures will certainly enhance the
financial status of the family and the health of the rural womenfolk, it will also enable the
parents to give better education, care and nutrition to their children and thereby reduce
their burden. Consequent to this the saving habit of the rural poor will be developed and
 P a g e | 91

they would be securing the fund for the marriage of their daughter. Once the economic
condition and saving habit of the community brightens up; the aversion for girl child will
be reduced.

The social status of the women is a very important aspect. The women should have
increased say in their family matters. Most of the abortions are carried out without the
free consent of the women. The consent is obtained in most cases by threat or
inducement. Women must be educated about their rights and they should cultivate the
courage and strength to decide the matter affecting her body and self.

6.3 CONCLUSION

Despite all this, if patriarchy still prevails in India and women continue to be dominated,
at least she would have the ‘pluses’ on her side. It may be idealistic but not impossible.
Before women drum for social conscience and accountability, they will have to take the
initiative to create a new social order.

Enforce the Indian laws to:

1. Make the family legally liable for this crime.

2. Stop the corruption. Revoke the OB/GYNs license/or the doctor/or authority who
performed the scan/procedure.
3. Prosecute the person who is asking for a bribe. Prevent some body’s pocket from
getting padded with money.

Non-enforcement of the laws is all negligent and violent acts against the mother and
the female fetus and humanity.

The Female Foeticide must be treated as a separate and distinct offence and a special
law to ban the same and to provide punishment for the commission of the offence
shall be enacted. Members of the general public must be empowered to bring in an
action under the PNDT Act.
 P a g e | 92

BIBLIOGRAPHY

I. PRIMARY SOURCES

1. ACTS
i. The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse)
Act, 1994.
ii. Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 2002
iii. Medical Termination of Pregnancy Act, 1971
iv. Indian Penal Code, 1860
v. Constitution of India

2. JOURNALS
i. All India Reporter
ii. Criminal Law journal
iii. Supreme Court Cases

II. SECONDARY SOURCES

1. BOOKS AND COMMENTARY

i. Gurusamy S. ,”Girl Child”, p.no.41, published by S.B. Nangia, A B H

Publishing Corporation, Darya Ganj, 2007
ii. Jena K.C., “Heirship of Women under Indian Personal Laws. A comparative
study”, Ph.D. Thesis (1998).
iii. Mehta Swati and Kothari Jayna, “It’s A Girl ! Pre- Natal Sex Selection and
the Law”, Lawyers Collective, November 2001.
iv. Srivastava Alka, “Declining Sex ratio: The marginalized Girl Child”,
Women’s Lint Vol. 8, No. 1, January March -2002.
v. Singh J.P. The Indian Women – “Myth and Reality” ; Godavari D Patil and
Madumati Patil “Girl Child a study in Familial and Societal Negligence”, p.
110, Gyan Publishing House, New Delhi, 1996.

vi. Mitter D.N., “The Position of women in Hindu Law”, p. 66, Inter-India
Publications, New Delhi, 1984.
vii. Sachdeva, D. D. R. (1998) “Social Welfare Administration in India”,
KitabMahal, Allahabad.
viii. Baruah Arunima, “Crimes againsi Childer”, p.9, Kalpaz Publications, New
Delhi, 2002.
ix. Madhuria, “Violence against women, Dynamics of Conjugal Relations”, p.
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84-85, Gyan Publication House, New Delhi, 1996.

x. Viswanath L.S. , “Female Foeticide and Infanticide”, Economic and
Politically Weekly, New Delhi, September 1, 2001
xi. Bala Saroj (Dr.), “Female Foeticide: Causes and Consequences” ,
International Indexed, Refereed Research Journal, ISSN -2250-253X, (Print),
E- ISSN -2320-544X, Issue-5, Vol-I, May, 2013.
xii. France Mesle, Jacques Vallin, Irina Badurashvili (2007). “A Sharp Increase in
Sex Ratio at Birth in the Caucasus. Why? How?. Committee for International
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xiii. John Bongaarts (2013) , “The Implementation of preferences for male
offspring, Population and Development review”, Volume- 39, Issue 2, pg. 185-
208, June 2013.
xiv. A. Gettis, J. Getis, and J. D. Fellmann (2004). “Introduction to Geography”,
Ninth Edition. New York: McGraw-Hill. pp.200. ISBN 0-07-252183-X
xv. Roberts, Sam (June 15, 2009), “U.S. Births Hint at Bias for Boys in Some
Asians”, The New York Times. Retrieved May 23, 2010
xvi. Parikh C.K., Parikh’s Text Book of Medical Jurisprudence Forensic Medicine
and Toxicology, p.no.72, C.B.S. publishers and distributors, 2000.

2. ARTICLES AND NEWS

i. Anand Meenu, “Indian Legal Framework to Arrest Female Foeticide” , Legal

News & Views, September 2005.
ii. Global Girl Power : Together We Are Stronger, “Female Foeticide”.
iii. Sheikh Usman, Lohiya Ashutosh, Yadav Prashant and Niturkar D. Yogesh,
“Stop female feticide: Save girl & save your relation”, International
Conference and Exhibition on Traditional & Alternative Medicine, December
09-11, 2013, Radisson Blu Plaza Hotel, Hyderabad, India.
iv. Info: Brochure, “Female Foeticide Issues and Concern”, Stella Maris
College, Chennai.
v. Sharma Sanjaya, Associate Prof. Medical College, “Female Foeticide and its
various critical aspects” , p. 6, Jhansi, workshop report held on 10th March
2002.
vi. Bose Ashish (2001): “Without my daughter- killing fields of mind”, The
Times of India, Mumbai, 24th April 2005.
vii. Sharma Tony, “Female Feticide: Causes, Effects and Solution”, Updated on:
25/05/2013.
viii. “We Are A Nation of Daughter-Killers, Affirms India’s 2011 Census”,
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updated on 1st April 2011.

ix. Smt.Sunitha Bhaskar, “Children In India 2012 - A Statistical Appraisal”,
Social Statistics Division Ministry of Statistics & Programme Implementation,
New Delhi, 2012.
x. Isabelle Attane. Une Chine sans Femmes?. Perrin, Paris 2005 and L’Asie
manqué de Femmes, article from Le Monde Diplomatique, July 2006.
xi. The Hindu, online edition of India’s National Newspaper, 14th December,
2014.

3. WEBSITES

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viii. http://www.theglobaljournals.com/ijar/file.php?val=Nzg2
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roots/
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xiii. http://ourethicaljourney09.blogspot.ca/2009/06/is-big-brother-watching-pgd-
regulations.html
xiv. http://en.wikipedia.org/wiki/Prenatal_diagnosis
xv. http://globalgirlpower.org/what-is-female-feticide/
xvi. http://www.esciencecentral.org/journals/2327-5162/2327-5162-S1.003-
080.pdf
xvii. http://definitions.uslegal.com/f/foeticide/
xviii. http://kapilmohit-com.webnode.in/news/female-feticide-/
xix. http://genderbytes.wordpress.com/2011/04/01/we-are-a-nation-of-daughter-
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xx. http://www.krepublishers.com/02-Journals/S-HCS/HCS-07-0-000-13-Web/S-
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