Essay: The rights of female children, born and unborn

When we talk about the rights of the child, we talks about the rights of the person who may not even envisage those rights and who cannot fights for those rights. Therefore the rights of a child are exercised by proxy through the parents, family, society and State. Unfortunately, these very agencies are responsible for violating children’s rights.

Such violation may be in any form i.e discrimination, abuse, lack of parental care, lack of nutrition etc. One of the major concerns over child rights which is prevailing now a days is Discrimination against girls child.

The struggle for a girl child starts the day her existence is known in her mother’s womb. The fear and struggle to survive swallow most of the girl’s life even if she is ‘allowed’ to live in this cruel world.

Discrimination against girls begins in our very homes, ‘even before the girl child is born’. One of the most inhuman, uncivilized and reprehensible practices is the practice of female feticide. The patriarchal mindset and preference for male children is compounded by unethical conduct on the part of some medical practitioners assisted by unscrupulous parents who illegally offer sex determination services.

The present paper discusses the role of parents as a leader, a torchbearer, a mentor or a guide with love, care and understanding of the child to provide best protection, opportunities and assistance in order to ensure them the best future. This paper also discuss the female foeticide/ infanticide practice in India and concerning law to prevent such.

The right to life, survival and development and Female feticide

Article 6 of the CRC deals with the right to life. Female infanticide is the violation of them right to life. The right to life certainly includes survival issues such as shelter, food, safe water and medical care. The declining sex ratio in the country has sent shockwaves across all sections of society. It seems that the socio-economic factors are so embedded in the psyche of the people that they even accept wrong ways of life for the sake of economical superiority. It is not poverty alone that kills baby girls ‘ the choices made by her parents and family have a greater role to play in curtailing her life. Custom, tradition and economic values shape these choices and when resources are meager; these can make a difference between life and death. Significantly, microlevel studies have shown that baby girls are more likely to die in a family where there is no older male sibling, pointing to strong circumstantial evidence of discriminatory care.

Article 7 of the UN Convention on the Rights of the Child (CRC) says, “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared by his or her parents.” Ironically, this aspect of child rights has been lost in translation in India where a large percentage of child births go unreported and where large numbers of female children are not even allowed to be born but are killed in the womb itself.

Female Foeticide : Death before birth

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.
The concern for girl child, who is murdered because she is female, is of growing concern in contemporary society worldwide. This violation of a girl’s basic right to life requires urgent attention and action. Girl children are undesirable in many regions of the world. In fact, due to the high occurrence of foeticides, infanticides, including newborn neglect and abandonment, the world are currently deprived of over 100 million women. China and India alone are responsible for 80 million missing females.

Female Infanticide: Death just after birth

Another form of eliminating the girl child has been the practice of female infanticide. It is a deliberate and intentional act of killing a female child within one year of its birth either directly by using poisonous organic and inorganic chemicals or indirectly by deliberate neglect to feed the infant by either one of the parents or other family members or neighbours or by the midwife.

Kolloor defines infanticide as, ‘Killing of an entirely dependent child under ‘one year of age’ who is killed by mother, parents or others in whose care the child is entrusted’. It is unfortunate that the parents also view her as a liability. This attitude is rooted in a complex set of social, cultural, and economic factors. It is the dowry system, lack of economic independence, social customs and traditions that have relegated the female to a secondary status. Poverty, ignorance of family planning, cost of dowry, etc. have been reported as the possible causes for this crime.

The law on infanticide entered into the National legal framework. called Indian Penal Code. Infanticide is one form of homicide, attracting the application of Section 299 or 300 IPC. Section 317 of the Code also controls this crime. According to this provision, ‘whoever being father or mother of child under the age of 12 years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend seven years or with fine or both’. Section 318 further states that, by secretly burying or otherwise disposing of the dead body of a child whether such child die before, after or during its birth, the person who intentionally conceals or endeavours to conceal the birth of such child is punishable with imprisonment for two years or with a fine or with both.

Major Causes of Female Feticides/ Infanticide

Preference for the male child:

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.

Deteriorated Status of Women:

Sure, 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 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.

Foul Medical Ethics:

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 today to save the expense of Rs. 500 000 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.

Industrial Growth:

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.

Effect of Female Foeticide/Infanticide

As Newton’s Third Law of Motion states, ‘For every action, there is an equal and opposite reaction’, the after effects of this genocide are fatal and far-reaching. Blinded by the need for an assertive gender to rule the house after the parents’ demise, the majority are often ignorant of the disaster they unwittingly invite by indulging in female feticide.

Skewed Sex Ratio:

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.

Is an imbalance in the number of females a truly worrying matter?

Yes, indeed. Sex ratio is merely a microscopic view of the number of both genders. However, when calculated for the entire population, this clearly indicates the widespread disparity. This disparity may prove critical for the country’s development in political, economic and emotional spheres.

Female/Women Trafficking:

The steep decline in the number of girls makes them scarce for the teaming number of males eligible for marriage. As a solution to this issue, illegal trafficking of women has become commonplace in many regions. This is a graver matter than the ideology of mail order brides. Women, often young girls who’ve just crossed the threshold of puberty, are compelled to marry for a price fixed by the groom-to be. They are usually bought in from neighboring areas, where the number of girls might not be as miniscule as the host region. Child marriages become a rage and child pregnancies, a devastating consequence. The moment when a land participates in the trade off of its women population, it is a sure path laid ahead with pitfalls.

Increase in Rape and Assault:

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.

Population Decline:

With no mothers or wombs to bear any child (male or female), there would be fewer births, leading to a decline in the country’s population. Though a control in the demographic statistics is currently the goal of many nations like China and India, a total wipeout of one sex is not the way to achieve this target. Science would then have to look up solutions to do away with the swarming number of men, should such a worst case scenario happen.

Female Feticide and concerning laws

Code of Medical Ethics

Constituted by the Indian Parliament in the Medical Council Act, 1956, the relevant section of the Code of Medical Ethics states:

On no account, sex determination test shall be undertaken with the intent to terminate the life of a female foetus developing in her mother’s womb, unless there are other absolute indications for termination of pregnancy as specified in the Medical Termination of Pregnancy Act, 1971. Any act of termination of pregnancy of normal female foetus, amounting to female foeticide, shall be regarded as professional misconduct on the part of the physician leading to penal erasure besides rendering him liable to criminal proceedings as per the provisions of this Act (Clause 7.6). It is here important to note that the penalty for unindicated sex determination and female foeticide is striking off the name from the register apart from criminal action.

Indian Penal Code

Until 1970 the provisions contained in the Indian Penal Code (IPC ) governed the law on abortion. The Indian Penal Code 1860 permitted ‘legal abortions’ did without criminal intent and in good faith for the express purpose of saving the life of the mother.

Sections 312-316 of the Indian Penal Code (IPC) deal with miscarriage and death of an unborn child and depending on the severity and intention with which the crime is committed, the penalties range from seven years to life imprisonment for fourteen years and fine.

The Medical Termination of Pregnancy Act, 1971

Liberalization of abortion laws was also advocated as one of the measures of population control. With these considerations, the Medical Termination of Pregnancy Act was passed in July 1971, which came into force in April 1972. This law was conceived as a tool to let the pregnant women decide on the number and frequency of children. It further gave them the right to decide on having or not having the child.

The Medical Termination of Pregnancy Act of 1971 had been enacted as a health measure for women; it was later, modified in 1975 to permit abortions under the following conditions:

  • The pregnant woman has a serious medical disease or condition that would endanger her life if the pregnancy were to continue.
  • Continuation of pregnancy would entail a substantial risk of physical and mental handicap to the newborn child.
  • The pregnancy resulted from rape.
  • The socio-economic circumstances of the mother would endanger the health of the newborn child.
  • The pregnancy occurred because of failure of a contraceptive method.

An Act of this kind, no doubt, made abortion legally permissible and available on demand subject to qualifying under any of the stated criteria. However, this good intentioned step was being used to force women to abort the female child. Despite this legalisation, a major proportion of induced abortions effected were illegal. In order to do away with lacunae inherent in previous legislation, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act had to be passed in 1994, which came into force in January 1996. The Act prohibited determination of sex of the foetus and stated punishment for the violation of the provisions. It also provided for mandatory registration of genetic counselling centres, clinics, hospitals, nursing homes, etc.

Thus both these laws were meant to protect the childbearing function of the woman and legitimise the purpose for which pre-natal tests and abortions could be carried out. However, in practice we find that these provisions have been misused and are proving against the interest of the females.
Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994

In order to do away with lacunae inherent in The Medical Termination of Pregnancy Act, 1971, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act had to be passed in 1994, which came into force in January 1996. The Act prohibited determination of sex of the foetus and stated punishment for the violation of the provisions. It also provided for mandatory registration of genetic counselling centres, clinics, hospitals, nursing homes, etc.

In the light of new techniques available to determine sex before conception, it was felt necessary to amend the Act. With the result, the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002, came into force. Originally, there was a Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, but due to the prevalence of pre-conception diagnosis, a newer law was put in order. Also the PNDT Act 1994 was renamed as the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.

Pre-Natal Diagnostic Techniques
Pre-Natal Diagnostic Techniques means use of the diagnostic techniques before the birth of a child on a pregnant woman for the purpose of determining of sex of the foetus.
Pre-natal Diagnostic Techniques include

  • Ultra-sonography,
  • Foetoscopy,
  • Taking samples of amniotic fluid, embryo, blood or any tissue or fluid of pregnant women before or after conception,
  • Testing samples in Genetic Laboratory to detect genetic disorders, abnormalities or sex-linked diseases

Section 4[2] of the Act provides for those circumstances under which the pre-natal diagnostic may be done. Other than this exception all other activities would come under the ambit of an offence and shall be punishable under this Act.

According to Sec. 4 (2), PNDT can be used for detection of abnormalities:

  • Chromosomal Abnormalities
  • Genetic Metabolic Diseases
  • Haemoglobinopathies
  • Sex-linked genetic diseases
  • Congenital abnormalities
  • Any other abnormalities

According to Sec. 4 (3), PNDT can be conducted only in following conditions:

  • Age of pregnant women is above 35 years
  • Two or more spontaneous abortions
  • Pregnant women has been exposed to drugs, radiation, infection or chemicals
  • Family history of mental retardation or physical deformities
  • Any other condition

According to Sec. 5 of the Act, no person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs or in any other manner. Determination of sex is also prohibited under Sec. 6 of Act. Husbands and relatives cannot ask or encourage pre-natal diagnostic techniques expect for reasons permitted under law.

The major prohibitions under the PC-P.N.D.T Act are-

  • Prohibition of sex selection ,before and after conception(section 3A) ‘ Sec. 3A of the Act state that No person, including a specialist or a team of specialists in the field of infertility, shall conduct or cause to be conducted or aid in conducting by himself or by any other person, sex selection on a woman or a man or on both or on any tissue, embryo, conceptus, fluid, or gametes derived from either or both of them.
  • Prohibition on sale of ultrasound machine, etc. (section 3B)
    According to Section 3B of Act, no person shall sell any ultrasound machine or imaging machine or scanner or any other equipment capable of detecting sex of foetus to any Genetic counseling center, Genetic clinic, and Genetic Laboratory or any other person not registered under this act.
  • Prohibition of advertisement of any technique for sex selection as well as sex determination (Sec 22 of the Act)

Punishment for violation of provisions of Act (Sec. 23)

1. For a doctor or medical person who misuses these techniques for sex selection:

  • 3 years imprisonment and/or fine up to Rs 10,000 for first conviction. Suspension of Registration by the Medical Council for 5 years for first offence.
  • For subsequent offence, 5 years imprisonment and/or fine Rs 50,000. Permanent removal for subsequent breaches.

2. Persons seeking to know the sex of the fetus:

  • 3 years imprisonment and/or fine Rs 50,000 for the first offence
  • For subsequent offence, 5 years imprisonment and/or fine Rs 1,00,000. The pregnant woman herself is considered innocent under the Act, unless and until proved otherwise. It is presumed that she will have been compelled to undergo sex determination tests by her husband and relatives

3. Persons connected with advertising of sex selection/ sex determination services:

  • 3 years imprisonment and/or a fine of Rs 10,000 with additional fine for continuing contravention at the rate of Rs 500 per day

According to Sec. 27, Offence to be cognizable, non-bailable and non-compoundable

Amendment in 2003

Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT), was amended in 2003 to The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition Of Sex Selection) Act (PCPNDT Act) to improve the regulation of the technology used in sex selection.

Implications of the amendment are :

  • Amendment of the act mainly covered bringing the technique of pre conception sex selection within the ambit of the act
  • Bringing ultrasound within its ambit
  • Empowering the central supervisory board, constitution of state level supervisory board
  • Provision for more stringent punishments
  • Empowering appropriate authorities with the power of civil court for search, seizure and sealing the machines and equipments of the violators
  • Regulating the sale of the ultrasound machines only to registered bodies
  • Constitutionality of the Act

Female foeticide is against the fundamental right to equality and freedom from gender based biased under the Indian Constitution.

In the case Vinod Soni and another v. Union of India the appellant challenged the constitutional validity of the PC and PNDT Act, 1994 and said that it is against the Art.14 and 21. The court held that the Right under the Art. 21 cannot include right to selection of sex whether pre-conception or post-conception. The art.21 is now said to govern and hold that it is a right of every child to full development .The enactment namely PC and PNDT Act, 1994 is factually enacted to further their right under art.21 which give to every child right to full development. A child conceived is therefore entitled to under art.21 as held by the SC, to full development whatever be the sex of that child. The determination, whether at pre conception stage or otherwise is denial of a child, the right to expansion, or if it can be so expanded right to come into existence.
In the case Allied Themes [CEHAT] And others v. Union of India the petitioner prayed inter alia that as the Pre-natal diagnostic techniques contravene the provisions of the PNDT Act, 1994 the Central government and the State government be directed to implement the provisions of the PNDT Act

[a.] by appointing appropriate authorities at State and District levels and the Advisory committees;

[b.] the Central government are directed to ensure that Central Supervisory Board meets every 6 months as provided under the PNDT Act; and

[c.] for banning of all advertisements of pre natal sex selection including all other sex determination techniques which can be abused to selectively produce only boys either before or during pregnancy.

After filing of this petition, notices were issued and thereafter various orders from time to time passed to see that the Act is effectively implemented.

Rate of Conviction

The Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
was passed in 1996 to stop female foeticide. A total of 1833 cases are registered under this act since it was implemented, including only 563 in Rajasthan. Only 65 licenses have been cancelled so far under this act. 143 people have been punished under this act since its enactment.

Above data is provided by Former Union Minister of Health, Mr. Ghulam Nabi Azad in a written reply to Rajya sabha on 13 Dec, 2013.

Why the low rate of conviction under PNDT Act?

  • Most cases are for incomplete or erroneous documentation
  • Most often the offenders carrying out sex determination and abortion are never brought to the book at all.
  • There are few or no ‘sting’ operations carried out by PNDT officials
  • The Collector is already handling numerous administrative issues besides PNDT.

Other Major Legislations

Besides having specific legislation and policy proclamations to deal with this menace, the precipitating factors such as dowry, poverty, and woman’s economic dependence etc., leading to the problem of foeticide and infanticide have been addressed by enacting various legislations as:

  • Dowry Prohibition Act, 1961(Amended in 1986);
  • Hindu Marriage Act, 1955;
  • Hindu Adoption and Maintenance Act, 1956;
  • Immoral Traffic Prevention Act, 1986
  • Equal Remuneration Act, 1976 etc.

These and various other legislations and policy proclamations intend to bring about women’s economic and social empowerment to the maximum and it is hoped that such measures would equip women to exercise their rights.

Areas of Concern

Effective implementation of PCPNDT 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 ultrasounds across the country (audit all F forms submitted).

Another problem is that the appropriate authorities don’t know their functions and responsibilities. Appropriate authorities do not have the necessary expertise and experience in legal matters. Deputing of medical professionals, or regulatory bodies under the PNDT Act, has not been an effective way to check the practice of sex determination, as doctors tend to be reluctant to book their fellow doctors.

Lack of adequate medical facilities is leading to increasing reach of private health service providers, whose practices are difficult to monitor.

Suggestions

1) PCPNDT Act is silent about punishment for parents who are also equally participate in such heinous act. Therefore parents who are involved in this act should be fined with high cash amount and sent to the jail for a minimum of 5 years. An immediate amendment in PCPNDT Act is need of hour.

2) Cancellation/permanent termination of the doctor’s license who partakes in fulfilling a client’s demand to do away with her girl child.

3) Heavy penalty imposed on companies like GE, that specialize in marketing medical equipments used for illegal sex determination and abortion in unlicensed clinics and hospitals.

4) High fines and judicial action against ‘parents’ who knowingly try to kill their unborn baby.

5) Sex selective abortion have a bad effect on the health of the women ‘ should be conveyed to the people through media.

6) Efforts and provisions should be made to provide social security to parents who are above 65 years of age and have only daughters. They should be provided with old age pension if they do not have a son.

7) Provide extra incentives for families that have more than one girl child. This will help correct the gender balance in a few years.

8) Women empowerment may be the solution of the problem. Empowerment of women would make them less dependent and she would not be a burden on the family. Empowerment would enable her to fight with the negative social norms of marriage and life.

9) Educating the masses would solve the problem and it would lead to a widening of thoughts. There should be awareness programme for people and public debate on this.

10) There need a co-relation between laws relating or supplement to each other.

11) Dowry prohibition Act should be implemented effectively.

12) Reaching the masses through religious/spiritual leaders keeping in mind the vast multitudes that India’s religious and spirituals leaders reach out to get them involved in spreading awareness on the issue of sex selection.

Conclusion

It can be concluded that It is said that God created mothers because He could not be present everywhere. It is unbelievable to realize that a God’s representative is continuously killing someone beautiful even before she can come out and see the beauty of nature. Female foeticide is approved under one pretext or the other. It will not be enough to counter son-preference. Aversion to daughters has to be squarely confronted through policy measures that increase the economic worth and support of daughters through improved employment opportunities and recognizing that women’s health and education is tied to more than the mothering roles.

The evil of foeticide is not just restricted to economically backward classes. It is, infact, the prosperous and the well-off families. Evidence indicates that the problem of female foeticide and infanticide is more prevalent in orthodox families. It is, therefore, essential that these socio cultural factors be tackled by changing the thought process through awareness generation, mass appeal and social action. In addition to this all concerned i.e. the religious and social leaders, voluntary organizations, women’s groups, socially responsible media, the doctors; the Medical Council/Association (by enforcing medical ethics and penalties on deviant doctors) and the law enforcement personnel should work in a coordinated way. It is possible for each one of us to do something, right now, to ensure that India does not become the mother of only boys that India’s daughters are not denied the right to live. Change is possible, change is in our hands.

‘Where women are honored
there Gods are pleased;
But where they are not honored
no sacred rite yields rewards.’
– Laws of Manu

Source: Essay UK - http://lecloschateldon.com/essays/law/essay-the-rights-of-female-children-born-and-unborn/


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