*

Associate Professor of Law, Sultan Sharif Ali Islamic University, Brunei Darussalam,
Adjunct Associate Professor of Law, Multimedia University, Malaysia; M.A., LL.B., LL.M.
(Luck. India), LL.M. (Strathclyde, U.K.), LL.D. (India); Email: ahmadnehal@yahoo.com.
___________________________________
Female Feticide in India
Nehaluddin Ahmad, M.A., LL.B., LL.M., LL.M., LL.D.
*
ABSTRACT: Women are murdered all over the world. But in India
a most brutal form of killing females takes place regularly, even
before they have the opportunity to be born. Female feticide the
selective abortion of female fetuses is killing upwards of one
million females in India annually with far-ranging and tragic
consequences. In some areas, the sex ratio of females to males
has dropped to less than 800:1,000. Females not only face
inequality in this culture, they are even denied the right to be
born. Why do so many families selectively abort baby daughters?
In a word: economics. Aborting female fetuses is both practical
and socially acceptable in India.
Female feticide is driven by many factors, but primarily by the
prospect of having to pay a dowry to the future bridegroom of a
daughter. While sons offer security to their families in old age
and can perform the rites for the souls of deceased parents and
ancestors, daughters are perceived as a social and economic
burden. Prenatal sex detection technologies have been misused,
allowing the selective abortions of female offspring to proliferate.
Legally, however, female feticide is a penal offence.
Although female infanticide has long been committed in
India, feticide is a relatively new practice, emerging concurrently
with the advent of technological advancements in prenatal sex
determination on a large scale in the 1990s. While abortion is
legal in India, it is a crime to abort a pregnancy solely because the
fetus is female. Strict laws and penalties are in place for violators.
These laws, however, have not stemmed the tide of this abhorrent
practice. This article will discuss the socio-legal conundrum
female feticide presents, as well as the consequences of having
too few women in Indian society.
____________________
According to the United Nations, there are, on average, 105 females to
every 100 males in most countries of the world. But this pattern, tellingly,
does not hold in four countries where female infanticide and feticide are still
Issues in Law & Medicine, Volume 26, Number 1, 2010 14
1
Celia de Lamo, Reports From a Village in India Where Newborn Girls Are Killed to
Stop Them Being a Financial Burden on Their Families, LONDON TIMES (U.K.), Mar. 12, 1997,
at 11; see also, UNESCO Institute for Statistics - UIS/FS/08/01.
2
Fred Arnold et al., Son Preference, the Family-Building Process and Child Mortality
in India, 52 POPULATION STUDIES 301 (Nov. 1998).
3
MANU: Laws of Manu (Manu Dharma Shastras) written between 200 B.C.E. and 200
C.E.; its 2,685 verses codify cosmogony, four ashramas, government, domestic affairs, caste
and morality. For dating of composition between the second century B.C.E. and third century
C.E., see FLOOD, AN INTRODUCTION TO HINDUISM 56 (1996). For dating of Manu Smriti in
final form to the second century C.E., see JOHN KEAY, INDIA: A HISTORY 103 (2000). For
dating as completed some time between 200 B.C.E. and 100 C.E., see THOMAS J. HOPKINS, THE
HINDU RELIGIOUS TRADITION 74 (1971). For probable origination during the second or third
centuries C.E., see HERMANN KULKE & DIETMAR ROTHERMUND, A HISTORY OF INDIA 85 (1986).
For the text as preserved dated to around the 1st century B.C.E., see http://www.britannica.
com/EBchecked/topic/363055/Manu-smrti (accessed on Apr. 11, 2010).
4
Sharma Chetan & Rita Patel, The Practice of Sex Selective Abortion Technology and
its Impact on Female Feticide in India, JAIN DIVYA, May 2005, at 286.
practiced: India, where there are 93 women to every 100 men; Bangladesh
and Afghanistan, where the ratio is 94 to 100; and China, where there are
only 88 women to every 100 men.
1
The Indian census has always reflected
a gender imbalance. Female feticide the selective abortion of female
fetuses and infanticide are largely responsible for this disparity. This
marked gap between males and females has nationwide implications. This
article will explore: (1) the history of Indias gender preference; (2) the
background of female feticide; (3) how female feticide is accomplished; (4)
the prevalence of female feticide; (5) viewpoints on female feticide; (6)
consequences of female feticide; (7) legislative responses; (8) consequences
for offenders; (9) the difficulty of enforcement; and (10) judicial responses.
Historical Background
Indian society, like many societies the world over, is patrilineal,
patriarchal, and patrilocal. For centuries, India has not welcomed the birth
of daughters. Women in Indian society were either heralded as goddesses,
a rarity, or objectified. Daughters were thus never welcome. Even the
blessing given by Rishis (priests) illustrates this painful reality: Ashta Putra
Saubhagyavati Bhava Be a Mother of eight sons. The blessing was
never for four sons and four daughters. Why?
Tradition holds that sons are necessary in order to kindle the funeral
pyre of their late parents and to assist in the soul salvation.
2
According to
Manu,
3
a man has to be reborn as a man to attain moksha (redemption). A
man cannot attain moksha unless he has a son to light his funeral pyre. Also,
a woman who gives birth only to daughters may be left in the 11th year of
marriage. Obviously, this demonstrates the gender bias prevalent in this
male-dominated society.
4
Female Feticide in India 15
5
L. Visaria, Deficit of Women in India: Magnitude, Trends, Regional Variations and
Determinants, 15 NATL MED. J. INDIA 19 (2002).
6
R. MUTHULAKSHMI, FEMALE INFANTICIDE, ITS CAUSES AND SOLUTIONS 92 (Discovery Pub.
House, New Delhi, 1997).
7
Id. at 92-93.
8
RITA PATEL, THE PRACTICE OF SEX SELECTIVE ABORTION IN INDIA, MAY YOU BE THE
MOTHER OF A HUNDRED SONS 67 (1996).
9
R. J. RUMMEL, DEATH BY GOVERNMENT 65-66 (1986).
Moreover, daughters come with a high price to be paid later in the form
of dowries, and they have little utilitarian value growing up. The unfortunate
practice of dowries and the historical view of women as undesirable second
class citizens have lead to the wholesale slaughter of female infants, and now
fetuses.
5
The burden of taking a woman into the family continues to
account for the high dowry rates in India which, in turn, have led to an
epidemic of female feticide.
6
But before feticide became a widespread
practice, infanticide was the method of choice for families desirous of
relieving themselves of the burden of an unwanted daughter.
7

The Background of Female Feticide
Infanticide
Sex selective abortion is a fairly recent phenomenon, however, it should
be seen as a subset of the crime of infanticide, which has also targeted the
people who are physically or mentally disabled, as well as infant males and
infant females on a gender-selective basis.
In the late 18th century, infanticide was initially documented by British
officials who recorded it in their diaries during their travels to India. The
scope of the problem of female infanticide became apparent in 1871, in the
taking of Indias first census survey. At that time, it was noted that there was
a significantly abnormal sex ratio of 940 women to 1000 men. This
prompted the British to pass The Infanticide Act in 1871, making the
practice of murdering infants illegal. But the Infanticide Act was difficult to
enforce in a country where most births took place at home and where
registration of births was not common.
8
This inhuman practice continues
today.
Some would dispute the assigning of infanticide or female infanticide
to the category of genocide, or as here, gendercide. Nonetheless,
governments and other actors can be just as guilty of mass killing by neglect
or tacit encouragement, as by direct murder.
9
R. J. Rummel buttresses this
view, referring to infanticide:
In India, for example, because their beliefs and the rigid caste system,
young girls were murdered as a matter of course. When demographic
statistics were first collected in the nineteenth century, it was discovered
Issues in Law & Medicine, Volume 26, Number 1, 2010 16
10
Id. at 66-67.
11
Id. at 67.
12
Malvica Karlekar, The Girl Child in India: Does She Have Any Right? 15 CAN.
WOMANS STUD. 55-56 (1995).
13
Id. at 56-57.
14
Kishor, May God Give Sons to All: Gender and Child Mortality in India, 58 AM. SOC.
REV. 262 (Apr. 1993).
that in some villages, no girl babies were found at all; in a total of thirty
others, there were 343 boys to 54 girls. . . . in Bombay, the number of girls
alive in 1834 was 603.
10
Rummel adds:
Instances of infanticide . . . are usually singular events; they do not happen
en masse. But the accumulation of such officially sanctioned or demanded
murders comprises, in effect, serial massacre. Since such practices were so
pervasive in some cultures, I suspect that the death toll from infanticide
must exceed that from mass sacrifice and perhaps even outright mass
murder.
11
No matter that female infanticide, or its progeny, feticide, is not committed
en masse, it is a tragedy of epic proportions with far-ranging consequences
for Indian society.
What is Female Feticide?
Female feticide is a practice that involves the detection and abortion of
female foetus due to the preference for male babies and from the low value
associated with the birth of females.
12
This could be done at the behest of
the mother, father, or under family pressure. Karlekar points out that:
[T]hose women who undergo sex determination tests and abort on
knowing that the foetus is female are actively taking a decision against
equality and the right to life for girls. In many cases, of course, the women
are not independent agents but merely victims of a dominant family
ideology based on preference for male children.
13
Why is Female Feticide so Widely Practiced?
It is quite simply more expensive to raise a female than a male, as the
female child needs to be provided a dowry upon marriage. It is widely known
that increased dowry payments led to the further decline of the status of
women.
14
The brides family, according to Indian convention, bears the
major cost of the wedding. The amount of dowry given is determined by the
grooms caste, his earnings potential, and the distinct needs of his family.
Therefore, the wealth of a bride or her family is irrelevant in the determina-
tion of the dowry amount. The female child, particularly in families of lower
Female Feticide in India 17
15
SONALDE DESAI, GENDER INEQUALITIES AND DEMOGRAPHIC BEHAVIOR: INDIA 166
(Population Council, Inc., N.Y., 1994).
16
Zeng Yi et al., Causes and Implications of the Recent Increase in the Reported Sex
Ratio at Birth in China, 19 POPULATION & DEV. REV. 297 (June 1993).
17
Duttas Subhabrate, Child Sex Ratio The Grim Picture, in SOCIAL WELFARE 17-18,
23-24 (Nov. 2001).
18
Kishor, supra note 14, at 263-64.
economic stature, is thus an economic drain on her family. The need for a
dowry for a female child exerts considerable economic pressure on families
to use any means possible to avoid having girls, who are seen as a liability.
Sonalda Desai has reported that there are posters in Bombay advertising
sex-determination tests (which lead to selective abortions of female fetuses)
that read: It is better to pay 500 Rs now than 500,000 Rs (in dowry)
later.
15

The following factors are often advanced as other justifications for the
practice of feticide:
Social Security: Consequent upon the advances in medical science, the
termination of unwanted children, especially female fetuses through
abortion, has become common in families to satisfy their preference for
sons. Studies indicate that there is a preference for sons in South Korea,
Pakistan, India, Turkey, Mexico, Taiwan and China.
16
In India, the
excuse offered is that families prefer boys to girls because boys provide
security to aged parents.
Dowry: A boy is an asset who fetches a dowry.
Financial Dependence of Females on Husband or In-laws: In India,
socio-economic background has been the villain behind female feticide.
Certain communities want to get rid of female children because of
dehumanizing poverty, unemployment, superstition, and illiteracy.
17
Cultural Factors: The bias against females in India is related to the fact
that Sons are called upon to provide the income; they are the ones who
do most of the work in the fields. In this way sons are looked to as a type
of insurance. The concept of Vanshodharak requires a male child to
perform last rites in Hindus. With this perspective, it becomes clearer
that the high value given to males decreases the value given to
females.
18
The problem is so acute that Indian Prime Minister Manmohan Singh,
speaking of female feticide, said It is very sad that in our society, the girl
child is being killed even before being born. This is a shame on our society.
Addressing the nation from the Red Fort on the 63rd Independence Day, he
added: As soon as possible we have to remove this blot. Our progress will
Issues in Law & Medicine, Volume 26, Number 1, 2010 18
19
P.M. Manmohan Singhs Independence Day speech, New Delhi Female Foeticide a
Shame for India, PRESS TRUST OF INDIA, Aug. 15, 2009, available at http://www.ndtv.com/
news/india/female_foeticide_a_shame_for_india_pm.php (accessed on Apr. 10, 2010).
20
Amniocentesis, also referred to as amniotic fluid test or AFT, is a medical procedure
used in parental diagnosis of chromosomal abnormalities and fetal infections.
21
Chorionic villus sampling or CVS, also known as chorionic villus biopsy, is a prenatal
test that can detect genetic and chromosomal abnormalities of an unborn baby.
22
A test in which sound waves are used to examine internal structures. During
pregnancy it can be used to examine the fetus. See V. PATEL, INDIAN WOMEN 16-17 (Bombay,
1996).
23
Id. at 17.
24
R. Jeffery & P. Jeffery, Female Infanticide and Amniocentesis, 19 SOC. SCI. & MED.
1207 (1984).
25
Z. Imam, India Bans Female Feticide, 308 BRIT. MED. J. 428 (1994).
26
Id. at 428-29.
27
V. G. Julie, Will Indias Ban on Prenatal Sex Determination Slow Abortion of Girls?
HINDUISM TODAY (Am. ed.), Apr., 1996, at 7.
be incomplete till women become equal partners in the growth.
19
Despite
the pleas of the Prime Minister, female feticide is widely practiced.
How is Female Feticide Practiced?
India is the heartland of sex-selective abortion. This detection of the sex
of the baby is done through three methods: (a) amniocentesis
20
; (b) chronic
villus sampling
21
; and (c) ultra-sonography.
22
Amniocentesis is a procedure in which a small amount of amniotic fluid,
which contains fetal cells, is extracted from the amniotic sac surrounding a
developing fetus. It was introduced in 1974 to ascertain birth defects in
utero. This procedure, and chronic villus sampling, although invasive, were
quickly appropriated by medical entrepreneurs in the business of sex
determination.
23
Today, however, less invasive ultrasound machines, which
produce pictures of fetuses inside the womb, have made the process of sex
determination even simpler for those desirous of determining the sex of the
child so it can be aborted before birth.
24
Due to the use of amniocentesis and ultrasound, sex determination has
also become a lucrative business
25
and sex-selective abortions increased.
26
With the advent of these technological advancements, families have an easy
alternative to the more horrific method of birthing, then killing, female
infants; simply have a sonogram, determine the sex of the child, and abort
the undesired female fetus before birth. Sex selective abortions are a way to
avoid the birth of daughters, with less moral compunction.
27
There is
certainly no denying that murdering a living, breathing, crying infant in
ones arms would be more difficult than aborting a fetus. Thus, ultrasound
and other technologies spawned the avoid a daughter industry in India by
Female Feticide in India 19
28
R. P. Ravindra, Campaign Against Sex Determination Tests, 8 LOKAYAN BULL. 31
(1990).
29
Tim Dyson, The Preliminary Demography of the 2001 Census of India, 27
POPULATION & DEV. REV. 341 (2001).
30
BBC, Jan. 9, 2006, available at http://news.bbc.co.uk/2/hi/south_asia/4592890.stm
(accessed on Apr. 10, 2010) (Their research was based on a national survey of 1.1 million
households in 1998).
31
John-Thor Dahlburg, Where Killing Baby Girls is No Big Sin, TORONTO STAR , Feb.
28, 1994, at 13.
32
Julie, supra note 27.
33
Renu Dube, Reena Dube & Rashmi Bhatnagar, Women Without Choice: Female
Infanticide and the Rhetoric of Overpopulation in Postcolonial India, WOMENS STUD. Q.,
Spr./Sum. 1999, at 73.
34
Sarah Boseley, Health Ed., 10 Million Girl Foetuses Aborted in India, GUARDIAN, Jan.
9, 2006; see also http://www.guardian.co.uk/world/2006/jan/09/india.sarahboseley (ac-
cessed on Apr. 10, 2010).
finding a niche market where those services were in demand, i.e., families
wanting to avoid having daughters and also avoid infanticide.
28
Prevalence of Female Feticide
There has been an alarming rise in the number of female fetuses
aborted over the past several years. While it is impossible to know exactly
how many female fetuses have been aborted, there are myriad estimates
available in the literature. For example, according to recent medical
research, over 10 million female fetuses may have been destroyed due to
abortion and sex selection in the past twenty years in India.
29
Researchers
in India and Canada for the Lancet journal said prenatal selection and
selective abortion was causing the loss of 500,000 girls a year.
30
Dahlburg
noted that [i]n Jaipur, capital of the western state of Rajasthan, prenatal
sex determination tests result in an estimated 3,500 abortions of female
foetuses annually, according to a medical college study.
31
The Indian
Association for Womens Studies reported in 1998 that 100,000 female
fetuses are killed every year in India. In 1996, the national publication,
Hinduism Today, put the annual figure at 50,000 female fetuses,
32
and a
study revealed that 13,000 female fetuses were aborted annually between
1978 and 1983, following the introduction of amniocentesis as a sex
determinant test.
33
No matter which numbers are relied on, one thing is not
in dispute: despite Indias ban on gender selection and selective abortion in
1994, with up to 10 million female fetuses allegedly terminated in India in
the last 20 years, there are now 36 million more men than women in India.
34
Issues in Law & Medicine, Volume 26, Number 1, 2010 20
35
OFFICE OF THE REGISTRAR GENERAL AND CENSUS COMMISSIONER, CENSUS 2001, GOVT
OF INDIA (hereinafter CENSUS 2001").
36
Klasen Stephan & Wink Claudia, A Turning Point in Gender Bias in Mortality? An
Update on the Number of Missing Women, 28 POPULATION & DEV. REV. 285 (2002).
37
Pande Rohini & Malhotra Anju, Son Preference and Daughter Neglect in India, What
Happens to Living Girls? ICRW (2006), available at www.icrw.org/docs/2006.
38
L. VISARIA, SEX-SELECTIVE ABORTION IN THE STATES OF GUJARAT AND HARYANA: SOME
EMPIRICAL EVIDENCE 64-83 (Abortion Assessment Project of India: Qualitative Studies, Health
Watch Trust, Jaipur and CEHAT, Mumbai 2004); see also CENSUS 2001, supra note 35.
39
VISARIA, supra note 38.
The following is the sex ratio chart from 1901 to 2001.
Year - Sex Ratio:
Females per 1,000 Males
35
1901- 972
1911- 964
1921- 955
1931- 950
1941- 945
1951- 946
1961- 941
1971- 930
1981- 934
1991- 927
2001- 933
Feticide in India remains unreported; the sex ratio for females has
dropped from 972 to 933 per 1000 males according to the chart shown
above. Female feticide is a well-known fact. For instance, the 2001 Census
figures point to a sex ratio for 0-6 age group of around 927 females per 1000
males (see Table 1 below).
36
The sex ratio gap at birth further widened by
2002-2003, according to some rough estimates from civil registration of
births, to 882 females per 1000 males. Assuming an average of 900 females
per 1000 males, this demonstrates that almost 10 percent of females are
missing.
37
That would amount to the elimination of almost one million
female children every year.
The sex ratio disparity is worse in some states such as Punjab, Haryana,
Rajasthan, Gujarat, Delhi and Maharashtra.
38
Table 1 points to an alarming
situation. Just imagine a state like Haryana where the sex ratio at birth is
around 860 per thousand clearly almost thirteen percent of female fetuses
are selectively aborted. The Punjab situation is equally threatening. Gujarat
is especially dire with a sex ratio of 808 females per thousand males in urban
areas.
39
Female Feticide in India 21
The extent of female feticide, like infanticide, calls for its classification
as a veritable gendercide.
Table 1
Sex Ratio of Females to 1,000 Males, 2001 Census*
State Rural Urban
Punjab 866 789
Haryana 884 809
Rjasthan 909 886
Delhi 917 866
Uttar Pradesh 928 880
Bihar 949 924
West Bengal 955 948
Orissa 949 927
Madhya Pradesh 960 941
Gujarat 908 827
Maharashtra 934 908
Andhra Pradesh 962 958
Karnataka 951 939
Kerala 958 951
Tamil Nadu 951 951
India 934 905
*Sex Ratio in 0-6 age group - 2001 Census.
Viewpoints on Female Feticide
The elimination of females before birth is often justified on two
grounds. First, it reduces the population; and, second, poor parents will be
saved from the expense which they would have to incur in the marriage of
their daughters. So the abortion of female fetuses is considered to be a
solution for two major problems: (1) a burgeoning population, which strains
Issues in Law & Medicine, Volume 26, Number 1, 2010 22
40
Monia Das Gupta & P. N. Mari Bhat, Fertility Decline and Increased Manifestation
of Sex Bias in India, 51 POPULATION STUD. 307 (1997).
41
Id.
42
Kusum, The Use of Pre-natal Diagnostic Techniques for Sex Selection: The Indian
Scene, 7 BIOETHICS 149 (1993); see also J. Venkatesan, Enforce Ban on Sex Determination,
HINDUSTAN TIMES, May 6, 2003, at 7.
43
Dutta Subhabrate, Child Sex Ratio-The Grim Picture, SOC. WELFARE, Nov. 2001, at
17-18, 23-24.
44
Pre-natal Diagnostics Techniques Act, Regulation and Prevention of Misuse (1994).
the public coffers; and (2) the dowry, which stresses family finances.
40
But
how far do these justifications go?
India was the first country to adopt family planning as an official
program to reduce the birthrate. But the population of the country is still
growing, despite female feticide. One of the reasons for the growth of
population in India is the desire for a son. Today, the sex-determination
tests have provided an easy way to know whether or not a woman will bear
a son. Each time a woman gets pregnant she can have the sex of the fetus
determined and get it aborted if it happens to be a female child.
41
Abortion
was punishable under the Indian Penal Code, but it was legalized with the
passing of the 1971 Medical Termination of Pregnancy Act. This Act along
with its revised rules was envisaged as a milestone in the modernization of
Indian society through laws. Medical doctors were against the ban on
amniocentesis claiming it will lead to its underground practice.
42
None of the arguments given in favor of the continuance of sex
determination are persuasive. While it is true that societies need to control
population overgrowth, and that people should have every right to plan their
families, it does not follow that families should be permitted to selectively
abort females to save money in years to come on dowries. The sex determi-
nation test is used to eliminate female fetuses by abortion, rather than
control family size.
43
In India, the preference is always for a male child. It is
the female child who is unwanted. If female feticide continues at its current
pace, it will render all the women and child health programs a nullity.
44
There simply will not be enough women to maintain an adequate national
birth rate.
Consequences of Female Feticide
Beyond the tragedy of the destruction of one million fetuses annually,
the consequences are potentially disastrous for the society as a whole. The
nations discourse on female feticide is so crass, that it is either totally
ignored, or the discussion is only in a context of how would men find mates
with a shortage of women. Indeed it is ironic that the reason that is provided
as the strongest reason for stopping this genocide is that men will not be
able to get married.
Female Feticide in India 23
45
T. Kanitkar, The Sex Ratio in India: A Topic of Speculation and Research, 39 J. FAM.
WELFARE 19 (1993).
46
Pande Mrinal, A Price for Life, HINDU SUNDAY MAG., Feb. 3, 2002, at 10.
47
Aditya Ghosh, HINDUSTAN TIMES, Nov. 24, 2008, at 17.
48
Jonathan Manthorpe, China Battles Slave Trading in Women: Female Infanticide
Fuels a Brisk Trade in Wives, VANCOUVER SUN, Jan. 11, 1999, at 11.
49
Tina Rosenberg, The Daughter Deficit, N.Y. TIMES MAG., Aug. 23, 2009, at 23:
[I]n India and China the situation is dire: in those countries, more than 1.5 million fewer
girls are born each year than demographics would predict, and more girls die before they
turn 5 than would be expected. (In China in 2007, there were 17.3 million births and a
million missing girls.) Millions more grow up stunted, physically and intellectually, because
they are denied the health care and the education that their brothers receive.
50
Mrinal, supra note 46.
Let us consider some of the possible implications of even ten percent of
men not being able to find wives, leading single lives, and not producing
offspring. The decreased marriage rate might lead to depression among men,
increased suicide among men, and emotional emptiness among men.
45
Of
course, there could be increased violence against women rape, sexual
harassment, increase in immorality, prostitution, and spread of diseases
such as AIDS and tuberculosis. More generally, demographers warn that in
the next twenty years there will be a shortage of brides in the marriage
market mainly because of the adverse juvenile sex ratio, combined with an
overall decline in fertility.
46
With female feticide continuing at its current pace, ten percent of the
male population will have to remain unmarried, not experiencing the joys of
intimacy, family life, or raising children. With ten percent of men leading
emotionally vacuous, depressed lives, they may become societal nuisances,
possibly turning to crime. With a shrinking pool of marriageable females,
the Hindustan Times recently reported that young girls from Assam and
West Bengal are being kidnaped and sold into marriage in neighboring
Haryana.
47
The impact on society should not be underestimated. According to
Chinese estimates, by 2020 there are likely to be 40 million unmarried
young men, called guang guan or bare branches, in China, because of
the adverse sex ratio.
48
Whether in China or India, a society with a large
number of unmarried young men is prone to particular dangers.
49
More
women are likely to be kidnaped and exploited as sex workers or sold for
marriages. The sharp rise in sex crimes in Delhi has been attributed to the
unequal sex ratio.
50
Legislative Responses
Female feticide is a gross violation of many human rights. The first is
the right to life of the unborn child. The second right violated is the womans
right over her own body. Often, the decision not to have the child is made by
Issues in Law & Medicine, Volume 26, Number 1, 2010 24
51
M. Kaur, Female Foeticide A Sociological Perspective, 39 J. FAM. WELFARE 40
(1993).
52
M. L. Solapurkar & R. N. Sangam, Has the MTP Act in India Proven Beneficial? 38
J. FAM. WELFARE 46 (1992).
53
Id. at 48-49.
54
S. V. Subramanian & S. Selvaraj, Social Analysis of Sex Imbalance in India: Before
and After the Implementation of the Pre-Natal Diagnostic Techniques (PNDT) Act, 63 J.
EPIDEMIOLOGY & COMMUNITY HEALTH 245 (2009).
the man of the family, with the opinion of the mother rarely considered. The
Indian legislature, in its effort to balance the legitimate needs of women to
abort fetuses when necessary, against the abuse of prenatal screening tests
and abortions for sex selective termination of viable female fetuses, has
enacted several laws designed to thwart gender-specific feticide.
51
Until 1970, the Indian Penal Code (IPC) governed abortion. The Indian
Penal Code 1860 permitted legal abortions done without criminal intent
and in good faith for the express purpose of saving the life of the mother.
Liberalization of abortion laws was also advocated as one of the measures of
population control. The Medical Termination of Pregnancy Act (MTP) was
passed in July 1971, and went into effect in April 1972. This law was
conceived as a tool to allow a pregnant woman to decide on the number and
frequency of children she produced. In essence, it gave women the freedom
to choose to discontinue a pregnancy, within certain parameters.
52
Specifically, the Indian government permits abortions to be performed
if there is:
Danger to the life of the mother if the pregnancy continues to birth;
Danger to the child by, or at risk of, being born handicapped; or
If the woman has conceived the child as a consequence of rape.
Women are also permitted to abort a fetus for family planning purposes
(i.e. if they wish to keep their family small). However, abortion has to be
done during a specific gestational period when it is difficult to identify the
sex of the fetus. If the abortion is to be carried out after 16 - 18 weeks of
pregnancy, for any medical reason, the opinion of two doctors is required.
53
However, this well-intentioned law which was conceptualized to allow
women the right to abort began being used to force women to abort female
fetuses. Unlike abortion, female feticide is usually done beyond the legal
gestational age (i.e., when the fetus is much older and developed), and is
done only because the fetus is female.
In order to do away with the lacunae inherent in previous legislation,
the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse)
Act (PNDT or the Act) was passed in 1994,
54
and went into effect in January
1996. The Act prohibits the determination of the sex of the fetus. It also
provides for mandatory registration of genetic counseling centers, clinics,
Female Feticide in India 25
55
Sabu George, Female Foeticide in India, 13 HEALTH ACTION 23 (2000).
56
Subramanian & Selvaraj, supra note 54, at 249.
57
J. F. Burns, India Fights Abortion of Female Fetuses, N.Y. TIMES, Aug. 27, 1994,at 5.
58
Id. at 5.
hospitals, nursing homes, etc. The PNDT Act only focuses on regulation and
control of techniques of prenatal sex determination, not access to abortion.
That is, the Act does not concern itself with selective abortion of female
fetuses as such, but rather with medical procedures to detect the sex of the
fetus which can lead to feticide.
55
However, taken together, the MTP and
PNDT were meant to afford women the right to choose abortion for medical
reasons, or for legitimate family planning purposes, and to prevent prenatal
tests and abortions from being used for the purpose of female feticide.
56
However, in practice, these laws are often misused or ignored to the
significant determent of females mothers and their unborn daughters in
Indian society.
57
What are the consequences for those who breach the law?
Consequences for Offenders
Female feticide is a punishable offence in India. The offenders (both
doctor and parents) may be imprisoned or fined or both. The primary law
for prosecuting persons who are engaging in sex selective abortion is the
Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act,
1994. The PNDT Act was renamed as the Pre-Conception and Pre-Natal
Diagnostic Techniques (Prohibition of Sex Selection) Act.
The Act:
Prohibits misuse and advertisement of prenatal diagnostic techniques
for the determination of the sex of fetus, leading to female feticide;
Permits and regulates the use of prenatal diagnostic techniques for
detection of specific genetic abnormalities or disorders and use of such
techniques only under certain conditions and only by the registered
institutions;
Provides for punishment for violation of the provisions given in the Act;
and
Provides for fines of about $320 and up to three years in prison for
advertising gender determination tests or working in a testing center.
58
A complaint must be made to the appropriate authority with notice of
not less than 30 days for proper action and with the intention to make a
complaint to the court. Only women over the age of 35 or those who have
certificates of medical necessity are permitted to have prenatal tests; women
who take the tests simply to determine the gender of the fetus can be
Issues in Law & Medicine, Volume 26, Number 1, 2010 26
59
Subramanian & Selvaraj, supra note 54, at 250.
60
Id.
61
Editorial, HINDUSTAN TIMES (Natl Daily), Dec. 11, 2007, at 16.
prosecuted and fined or imprisoned.
59
One of the criticisms of the law is that
it does not provide for the registration of ultrasound machines, many of
which are put into vans and driven from village to village.
60
Apart from the Act, the following sections from the Indian Penal Code,
1860 are also relevant and can be used to prosecute offenders when:
Death is caused by a person (Section 299 and Section 300).
A pregnant woman is caused to miscarry the unborn baby (Section 312).
An act done with intent to prevent child being born alive or to cause it
to die after birth (Section 315).
A quick death of the unborn child is caused (Section 316).
A child under 12 years of age is exposed and abandoned (Section 317).
The birth of child is concealed by secretly disposing her/his body
(Section 318).
The punishment for these offences extends from two years up to life
imprisonment, a fine, or both.
Enforcement: The Reality
Despite these statutory provisions, due to lack of proper enforcement,
female feticide is still widely practiced and very few cases are prosecuted.
The irony of the situation is that in the 14 years since India enacted the
Pre-Natal Diagnostic Technologies (PNDT) Act, with countless thousands
of females lives terminated in utero for convenience sake, not a single person
was convicted until very recently. In April 2006, two people were convicted,
fined and given five years imprisonment. According to Indias Health
Minister Ambumoni Ramadoss statement to Parliament in 2007, only 23
cases have been registered under the Act thus far.
61
In December 2007, the
Health Minister told the Upper House (Rajya Sabha) that the government
intends to make life imprisonment a penalty for violations of the Pre-natal
Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. In
addition, he acknowledged that the conviction rate was so low because
feticide is a clandestine practice.
The ban on government hospitals and clinics, on the central and state
levels, making use of prenatal sex determination for the purpose of abortion
a penal offence led to the commercialization of the technology. Private
clinics providing sex determination tests through amniocentesis and
ultrasound multiplied rapidly and widely. Sex selection tests can be done on
Female Feticide in India 27
62
G. Singh & S. Jain, Opinions of Men and Women Regarding Amniocentesis, 39 J.
FAM. WELFARE 13 (1993).
63
Id. at 18.
64
Gautam Chikermane, To Save the Girl Child Invest, INDIAN EXPRESS (Natl Daily),
Mar. 30, 2006, at 13.
65
J. P. Singh, Social and Cultural Aspects of Gender Inequality and Discrimination in
India, 30 ASIAN PROFILE 163 (2002).
66
J. P. Singh, Dowry in India: A Search for New Social Identity, 58 EASTERN
ANTHROPOLOGIST 199-220 (2005).
67
Centre for Enquiry into Health and Allied Themes [CEHAT] v. Union of India. AIR
2001 SC 2007.
a fetus at almost every one of the 30,000 clinics, if not all of them.
62
Advertisements still herald the economic benefits of aborting female fetuses;
the relatively low cost of the testing can be more than offset by saving the
future cost of a dowry. The portable ultrasound machine has facilitated use
by doctors going from house to house in towns and villages.
63
In such an
environment it is very difficult to enforce a law seeking to control informa-
tion that travels through informal channels and services that can operate
secretly. Implementation of the law has thus been slow and ineffective.
Another reason for the limited effectiveness of the law includes lack of
political will. Experience has shown that, in general, the role of legislation
in curtailing a social practice can be limited.
64
Thus, despite having
protections in place since 1996 under the PNDT Act, the practice of sex
selection continues unfettered.
Reports continue to reveal that members of the female sex are
undesirable in India. Baby girls are neglected, malnourished or even killed
at birth. Anecdotal and other evidence suggest that sex selecting clinics and
the abortion of female fetuses are still wide-spread. Although tougher
legislation has made it possible for the authorities to raid prenatal clinics to
check records and look for evidence of illegal sex selection, officials admit
that it is difficult to find evidence.
65
Prenatal scans to check for abnormali-
ties are legal and it can be impossible to prove that a doctor has in fact used
one to reveal a babys sex. Thus, enforcement efforts are thwarted at every
juncture. It seems it is in everyones interest to continue this practice: the
lucrative prenatal test industry, families struggling under the weight of
future dowries, and doctors desirous of serving their patients for their own
profit.
66
Despite the societal acquiescence, the judiciary has taken on the
cause of saving female fetuses.
Judicial Responses
Public interest litigation was filed in the Supreme Court of India by
concerned health activists.
67
In response to the petition, the Court issued
notices to the central and state governments to file replies to the central
Issues in Law & Medicine, Volume 26, Number 1, 2010 28
68
Surya Deva, Public Interest Litigation in India: A Critical Review, 28 CIVIL JUST. Q.
19 (2009).
69
Pamela Philipose, Women Versus Girls, INDIAN EXPRESS (Natl Daily), Apr. 5, 2006,
at 5.
government. Appropriate authorities were further directed to send quarterly
reports to the central supervisory board about public awareness against the
practice of prenatal sex determination. The Supreme Court directed state
governments to take further steps to enforce the law, and the Secretary of
the Department of Family Welfare was directed to file an affidavit indicating
the status of actions taken. The Supreme Court further directed nine
companies to supply the information of the machines sold to various clinics
in the last five years. Details of about 11,200 machines from all these
companies were fed into a common database. Addresses received from the
manufacturers were sent to concerned states to launch prosecutions against
those bodies using ultrasound machines that had filed to register under the
Act.
68
Today there are an estimated 25,000 ultrasound machines in the
country, of which 15,000 have been registered. The Supreme Court directed
that the ultrasound machines/scanners be sealed and seized if they were
being used without registration. Three associations: The Indian Medical
Association (IMA); Indian Radiologist Association (IRA), and the Federation
of Obstetricians and Gynecologists Societies of India (FOGSI) were asked to
furnish details of members using these machines. Since the Supreme Court
directive 99 cases were registered, and in 232 cases ultrasound machines,
other equipment and records were seized. State governments have commu-
nicated to the central government of India in writing that according to
official reports received, they are satisfied that sex determination services
are no longer being provided in their respective states.
69
However, even after the Indian Supreme Court orders, all that has
occurred is that clinics are now registered, but yet not regulated. It is widely
believed that while these services are no longer openly available, their
clandestine availability and utilization continues all over the country. The
observation of the National Inspection and Monitoring Commission
confirms this situation and endorses the need for stricter enforcement of the
law.
Conclusion
India is experiencing female genocide. The only reason that it does not
cause shock or outrage is because it is accomplished through abortion (as
compared with infanticide), which is legal in India. The permissive abortion
culture has meant that India does not, by and large, view the selective
elimination of the female population as a massive human rights violation.
Female Feticide in India 29
70
Gender Laws Often Go Against Women, TIMES NEWS NETWORK, Jul. 24, 2006, at 7.
71
Nandita Haksar, Dominance, Suppression and the Law, in WOMEN AND THE LAW,
CONTEMPORARY PROBLEMS 89 (Lotoka Sarkar & B. Sivaramayya, eds., Vikas Pub. House, New
Delhi, 1994).
On the contrary, female feticide is an extreme manifestation of violence
against women, and a horrendous violation of their human rights. Unfortu-
nately, as Kerala High Court Chief Justice K.K. Usha stated: gender-specific
laws like the MTP Act 1971 which aims at empowering women have been
grossly misused for female feticide.
70
Failure to enforce the law when
violations occur has added to the growing problem of female feticide. First,
it must be realized that a law is just the beginning of a struggle to curb a
socially accepted practice like female feticide. And, as Haksar points out,
legal reform cannot be divorced from the more fundamental struggle to
transform social values.
71
Moreover, it is necessary to understand that while
progress in science and technology is mandatory for the progress of a nation,
what matters most is its beneficial application. Female feticide is a reflection
of what happens when technologies are misused to serve tragic ends. The
only long term solution is to change attitudes and end the archaic practice
of dowry which perpetuates the notion that females are an economic burden
on families. Society as a whole should ensure that each girl is safe, secure,
educated, economically, and emotionally independent. Worsening sex ratios
are bound to have a devastating effect on countries like India. The time has
come to declare a crusade against female feticide, both on an individual and
a collective level.
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