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September 14, 2012

Are stricter laws the answer to female feticide?

Laws equating female feticide to homicide are not a solution to a multi-dimensional social evil.

Bollywood actor Aamir Khan’s popular talk show Satyamve Jayate has powerfully highlighted the issue of India’s skewed sex ratio. The statistics are stark: Census data suggests that in 2011 the sex ratio in India was an unhealthy 917 girls to 1000 boys with economically advanced states like Delhi performing even more poorly. Some estimates suggest that upwards of one million female fetuses are aborted annually in India- it can be safely presumed that gender bias is responsible for the majority of these abortions.

Apart from its troubling social implications, India’s skewed sex ratio can extract substantial economic costs including potentially sparking a demographic crisis as a report by the United Nations (UN) has warned. As demonstrated by Satyamve Jayate, it has already led to practices like polyandry as well as increased trafficking of women especially in states like Haryana where practices like female feticide and sex selection are particularly rampant.

Stung by public opprobrium and criticised for its failure to meaningfully act against physicians indulging in female feticide, Maharashtra government now proposes to slap charges of homicide on such practitioners as well as accused family members. While the law’s exact contours remain hazy, it has already earned the support of ostensibly pro-choice celebrities like actor Aamir Khan. Even the so-called Khaps of North India- not exactly known for their social progressivism- are demanding stringent punishment for the perpetrators of female feticide.

Photo: e-basak

It is easy to understand the motivation for laws of this nature. Or why it would be supported by well-meaning citizens. When a problem remains intractable despite multiple efforts over the years and challenges our basic moral and societal beliefs, there is a tendency to do ‘something’. Public policy, however, is rarely well served by impassioned rhetoric or populist posturing. It is important, therefore, to consider the full implications of the proposed legal changes.

First, it is hardly the first attempt by the government to squelch the practice of female feticide. Responding to the concerns that the widespread availability of ultrasound procedures was leading to increased incidences of female feticide, India promulgated the Pre-Conception and Prenatal Diagnostic Techniques Act (PCPNDT) in 1994. The PCPNDT Act prohibited medical professionals from revealing the sex of the fetus to the parents or indulging in any other form of sex selection.

The PCPNDT Act has been a spectacular failure. In a county where the quality of governance remains poor and largely ineffective, this is hardly surprising. In any case, unless India is prepared to countenance state intrusion into the most intimate physician-patient conversations, such regulatory failures are given. Unfortunately, as is often the case in India, the response to failed laws is to demand even more stringent laws without much thought to the implementation challenges. For instance, as proving homicide requires a substantial burden of evidence, it is unclear how effective the law would be, especially without the cooperation of the mother. However, if the mother is willing to take on family members, then existing statutes- with perhaps a little tweaking- should suffice. And what if the mother is a willing accomplice in female feticide?

Second, the actual effect of female feticide remains unclear. The sex ratio in India has followed a largely secular trend declining from 972 in 1901 to 946 in 1951. The sex ratio was already 930 in 1971 when the Medical Termination of Pregnancy (MTP) Act came into force and abortion became widely available and it actually improved to 933 in 2001. Female feticide may simply have replaced female infanticide.

Finally, labelling abortion- even if motivated by misogynistic concerns- as homicide risks opening the proverbial Pandora’s box. In the celebrated Roe vs. Wade judgment, the US Supreme Court legalised abortion locating a right to privacy within the due process clause of the 14th amendment. While no such grand narrative has animated the discussion on abortion in India, women have enjoyed the right to abortion relatively unmolested by either legal constraints or social pressures. The MTP Act permits abortion up to 20 weeks in cases of rape, incest and the all-encompassing “contraceptive failure”. As contraceptive failure is impossible to document or refute, abortion is virtually on demand in India.

Equating female feticide with homicide confers the rights of personhood on the fetus. In that case, abortion should be illegal as no other right- whether the right to privacy or even primacy over one’s body- can triumph the right to life. The debate over abortion remains unresolved in US 40 years after Roe vs. Wade; India should avoid walking down this path. The unfettered right to abortion in India is an important right and should be jealously guarded.

Additionally, the proposed law would not only be discriminatory against the male fetus but divide even the female fetuses into two different classes: Abortion would be completely legal as long as the sex has not been identified. This is not merely affirmative action in the womb but is discriminatory enough to be constitutionally and morally perverse.

From a pro-choice perspective, there is nothing inherently immoral about selective abortion. A woman may choose to indulge in sex selection purely from a need to balance her family or even due to personal proclivities. In an ideal world, sex selection would be a right as much as abortion is. The outrage against selective abortion- female feticide- in India reflects the larger social reality of pervasive discrimination and the lower social status of women. The women’s right to choose should not be curbed merely because it leads to socially unacceptable outcomes. Otherwise it will amount to little more than further victimising the victim.

There is certainly a case for positive government actions to improve the status of girl child and women in general in India. Some states have experimented with conditional cash payments while others like Bihar have provided free bicycles to female students. Education as always is the key: Kerala with the highest literacy rate performs significantly better than economically advanced states like Punjab and Gujarat. Considering society’s positive need for correcting the skewed sex ratio, these programs can certainly be expanded and further strengthened.

When faced with social problems, it is tempting to appeal to the legal and regulatory system for redressal. But history suggests that while such policies may temporarily assuage our moral outrage, they have little positive effect on the ground. Focusing on positive empowerment and social change may be a more long-term process but it’s the only one that works.


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