LAW AGAINST SEX DETERMINATION

Souvenir 1995

New reproductive technologies in tandem with already existing patriarchal biases, have succeeded in taking society’s hatred of women to newer depths. In an era of growing commercialisation and profit oriented health services, fertility and reproduction have become over medicalised, with high tech monitoring at every stage. Medical science, in its search for perfection, has developed highly sophisticated pre-natal diagnostic tests to detect foetal abnormalities. Such detection would pave the way for foetal surgery, abortion in the case of severe abnormalities and other interventions. Tests such as amniocentesis, chorion villi biopsy, foetoscopy, maternal serum analysis etc. enable the detection of chromosomal abnormalities, haemoglobinopathies, genetic metabolic disorders, sex-linked genetic diseases and other congenital anomalies. These developments in medical technology raise several ethical as well as political questions, with regard to who controls such research, and to what end it is used. In societies where there are active movements of disabled people, or, to use the terminology emergent from the movement; persons who are physically and mentally challenged, or differently abled persons, there have been active critiques of technologies which aim to eliminate all “undesirables’ from society.

In the context of trends in eugenics, which press for greater ‘purity’ of the human race and weeding out of any deviations from a norm set by the capitalist and patriarchal forces, these technologies need to be analysed from a feminist people-oriented perspective. A society which wants to produce only upper class, physically fit males, surely is a perverted one. Where do the powerless go?

The question of the differently-abled is a complex one. In present society, all over the world, caring for children, sick and elderly, is the responsibility of the family, especially that of women. A few changes have come about in the so-called welfare states where the State has taken on some of these responsibilities. It is in this context that the State then gains the ‘right’ to decide how to allocate costs, and thus decide that the burden of bringing disabled people into the world is too much for it to bear.

To the rescue come New Reproductive Technologies [NRTs], with their ‘solution’ of detecting abnormal foetuses and eliminating them before birth. Societies which have invested the most in NRTs, are also those with phenomenal environmental pollution, high risks of radiation, chemical ingestion in food, water contaminated by chemicals and radioactive waste, and other such conditions contributing directly to birth defects. Technological solutions then, can at best tackle only the tip of the iceberg. In India, the issues surrounding NRTs need to be seen in the light of almost non-existent State support for families with differently abled persons. Having a ‘handicapped’ person in the family involves massive expenditure of resources, time and energy. It is mainly women who shoulder this burden, with little help from other family members. State interventions have been of limited value, in the form of abysmally few ‘homes’, the conditions of which are horrifying in most instances, job reservation and travel passes. On the whole, society is insensitive and unresponsive to anyone who is not in the prime of health. It thus becomes difficult to say a blanket ‘no’ to these diagnostic procedures, since at present, and in the forseeable future, it is the family which is left to cope as best as it can. However the dilemma remains, and ought to be on the agenda of all.

In India, seriously tackling the broader issues related to NRT has not been possible because of the more immediate threat of sex-determination tests. As part of the diagnostic procedure for detecting sex-linked genetic diseases, these pre-natal tests are also meant to detect the sex of the foetus. This is thought to be necessary both for the rational management of the disorders, and for counseling the parents. It is this aspect of the procedure that has been widely misused for sex-determination followed by abortion of the foetus if it is female. Further, there are some pre-natal diagnostic procedures, which, apart from the function of detecting foetal abnormalities, may also find wide use in general gynecological and obstetric practice. For instance, ultrasonography can be used for detection of congenital malformation as well as for detecting intra-uterine growth deviations, and establishing placental implantation. The sex of the foetus can also be determined by ultrasonsography. Similarly, foetoscopy, a sophisticated technique of foetal visualisation and intervention also has a potential to be misused for sex-determination. Pre-natal diagnostic tests have been a boon to the profit-hungry, who are making full capital of the craze for sons in our society. Pseudo-concern about health has increasingly become a big business, and sex-determination tests have the potential for a fast buck. After all, if even a quack pronounces the foetus as female, no one desperate for a son would hesitate to have an abortion.

The dilemma about the values at a societal level with respect to elimination of females is perplexing. Female infanticide is regarded as barbaric and inhuman today, and any ‘right thinking’ person would be against it. With liberalized views on abortion, thanks partly due to the government propaganda and promotion, selective abortion does not seem to carry with it the horror associated with female infanticide. With sex-preselection, the issue of violence against women appears even more remote, and woman hatred becomes more sanitized and acceptable. In the context of the “small family norm”, and more middle class families opting for only two or one child, sex-determination to ‘plan’ the family just right, becomes an added justification. Eliminating females now gains the status of a national duty!

The implications of sex-determination followed by abortion of female foetuses, can be seen at the macro level in the demographic imbalances created by the adverse sex-ratio of the country, which has declined from 972 females per 1000 in 1901 to 927 per 1000 males in 1991.

Sex ratio is an accepted index of the socio-economic development of any country, with the ‘developed’ countries having more number of females as compared to males. The female of the species is known to be tougher. In India, however, prevalent patriarchal structures have managed to do away with this natural advantage. Mortality rates for females are higher at all age groups in India, as a result of female infanticide, neglect and abuse of female children, early and repeated childbirth, undernutrition, lack of medical facilities, dowry murders and violence against women. Medical technology has now developed yet another means to eliminate women in India. The Registrar General of India has admitted to abortion of 3.6 lakh female foetuses in India in 1993-94, an estimate based on hospital births alone.

What is alarming is the acceptability and legitimacy given to this form of violence. There has been vocal support for sex-selective abortion on grounds that it is better not to bring forth another female into the world, rather than have her murdered for dowry 20 years later. This sort of perverted logic encourages eliminating the victim rather than the problem. Further this same argument goes on to suggest that once there are fewer females, demand for them will increase, consequently enhancing their status. But already India, with its skewed sex-ratio, its increasing rate of crimes against women and their secondary status in general, presents enough evidence that such pseudo-economic logic holds no water.

Apart from these basic objections, other problems associated with these technologies have also surfaced in an alarming way. The hazards of amniocentesis range from infections to trauma to the mother as well as the foetus, false results, and the hazards of second trimester abortion after an ultrasound. However, women are never informed of these possible hazards, and only leeched of their cash by money making professionals who tout the wonders of these technologies.

Women’s groups all over the country have been vociferously protesting since the early 80s against the growing incidence of these tests, and campaigning to put an end to this woman hatred. We came out into the street, corners, distributed leaflets and raised the issue in local trains, street corners, in the media, in schools, and forced the public to think about this issue. We have simultaneously held that the State policies must be re-oriented in order that female children are not liabilities. The government, rather than relying merely on empty propaganda and slogans, or insulting proposals to ‘compensate’ parents with girl children, should make concrete changes in discriminatory laws, development policies and economic opportunities for women. Till date, however, all that has been handed out are hollow promises and rhetoric and cosmetic gestures like ‘Year of the Girl Child’.

In order to pressurise the State, one of the planks of the campaign has been the demand for legislation to curb the proliferation and misuse of sex-determination tests. Maharashtra was the first state to come out with a law in 1986, after pressure from the Forum Against Sex-Determination and Preselection in Bombay. Rajasthan and Punjab have passed similar legislation. Goa and Gujurat also debated the issue in the Assembly. Simultaneously there was a demand for a comprehensive central legislation. Around 1986-87, a countrywide campaign demanding a central law, was launched by autonomous women’s groups. It involved signature campaigns, sending thousands of postcards, representations to Parliamentarians, lobbying the Committees set up for the purpose of drafting the legislation and keeping the issue alive in the media. It needs to be mentioned, however, that women’s groups have found these laws to be full of loopholes, and almost impossible to implement. It is a testimony to this fact, that there has not been a single prosecution in Maharashtra under this law. This is a result of gaping loopholes in the implementation of the machinery, desultory functioning of the Vigilance Committees set up for the purpose and the fact that women undergoing the tests are also liable for punishment. This last factor has been a deterrent to women’s groups in registering violation of the law, rather than a deterrent to money-making doctors performing the tests. We are not optimistic enough to interpret lack of prosecution under the Act as a complete halt of sex-determination tests. The reality is too grim for us to nurture this hope.

After years of pressurising by women’s groups, a draft central legislation was put forward. Women’s groups were marginalized in the process of the drafting and at a later state, all amendments we proposed we were ignored. A Joint Parliamentary Committee[JPC] was constituted to go into the merits of the legislation and open the debate to concerned parties. Many important organizations working on the issue in different parts of the country were deliberately left out, but doctors who were openly carrying out sex-determination were invited to place their views before the JPC. Saheli, along with Sabla Sangh and Medico Friends Circle, deposed before the JPC in January 1992. Evidence had been gathered to show the proliferation of the tests, the blatant misuse and the profit orientation of doctors performing the tests. In addition, a written submission was made, detailing our objections to specific provisions of the proposed legislation.

MORE AMMUNITION FOR THE PATRIACHS!

The language of the women’s movement has been co-opted by vested interests whenever it suits their ends. We have long fought for the right to abortion as a choice for women and this hard won demand has been distorted in the context of sex-selective abortion. In a society obsessed with the need to produce sons, with harsh consequences for women who “fail” to do so, sex-determination followed by selective abortion can hardly be looked upon as a free choice that women exercise. Loss of status within the family, being subjected to taunts and abuses and even being physically thrown out of the house, are direct consequences of not producing a son. The insidious operation of patriarchy is evident in the social conditioning of women who themselves may be convinced of the superiority of males, and hence the importance of sons. The task of the women’s movement becomes more challenging when we are confronted by women who may therefore, “voluntarily” undergo sex-determination tests.

Simultaneously, it has been important for us to distinguish our position from that of the orthodox, moral right which is anti-abortion per se. We have been unequivocally fighting for accessible and safe abortion on demand, as a back up measure in case of failure of birth control. However, we feel that sex-selective abortion is a violence against the female gender, with no attempts made by the proponents of such measures to change the material conditions in society which result in females being an ‘unwanted species’.

Suggested Amendments:

*The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Bill, 1991, passed by the Parliament in July 1994, is sill awaiting implementation. Women’s groups, health and democratic rights groups once again got together to appeal to the President to include our recommendations (submitted in 1992), and withhold assent until these provisions are included. We are convinced that the Law as it stands will address the problem only in a token and superficial manner.

*Registration of Genetic Counselling Centres and Laboratories will only serve the purpose of regularizing private clinics which, in view of the weak mechanisms for deterrence created by the Law, will continue to indulge in these activities for the pursuit of profit. Licensing also would pave the way for another avenue of corruption to circumvent the bureaucracy. We have been demanding that these tests should be confined to government hospitals with public accountability, rather than grant legitimacy to the private sector.

*The most offensive and misguided feature of the Law is its punishment for women, in order to act as a deterrent. Such a clause will only increase the misery of women in a context where patriarchy leaves little room for autonomous decision making by women, and where women are forced to make ‘choices’ under pressure. Punishment to women will only help to cover up the interests of those responsible for providing such a facility.

*Future technologies being developed for sex-determination, such as testing of foetal cells in maternal blood, sophisticated techniques for sex-pre-selection, such as electrophoresis, Ericsson’s method etc, are presently not covered under the Law. Unless future technologies are brought within the ambit of the Law, it will soon become irrelevant to the very issues which are to be addressed by it.

*Effective implementation of the law seems a near impossibility. Preventing information about the sex of the foetus from being communicated, is not practical, given the fact that those getting the test done, will obviously be interested in knowing the results. By creating a common interest among the providers and users of the facility to evade detection, the task of checking the practice is made more difficult.

There is no provision for the creation of local vigilance committees which would contribute to effective implementation, and only central and state level bodies are specified.

*Punishment for the providers of the facility is nominal, and will not act as a deterrent given the super profits generated in this business

Tasks Ahead:

The Law in its present form is unlikely to make any difference in checking sex-determination and the subsequent abortion of female foetuses.

It is imperative that the Law be amended to include the recommendations of womens’ groups, made pro-women, and less inclined towards the protection of professional and commercial interests.

A central legislation in no way suggests that a law will be adequate to deal with the problem. A comprehensive overhaul of state policies and programmes is essential to tackle the discrimination which results in the devaluation of women and the concurrent privileges of men.

Discriminatory inheritance laws, limited educational and job opportunities, and family, community & caste structures that perpetuate the secondary status of women, all need drastic change. Social attitudes denigrating female children will change only with a transformation of conditions towards a more egalitarian and less exploitative social order.