Looking at Female foeticide through the lens of Human Rights, Society and Law

What is Female foeticide?

Female foeticide involves a process where a female foetus is killed in the womb of the mother. It
is a heinous form of sex-selective abortion. Female foeticide is most common in India since there
is still a dominance of patriarchy in several parts of India. Female foeticide and female
infanticide are two very distinct concepts. The former involves killing the foetus in the womb
whereas the latter involves killing the girl child soon after her birth. Both even though are
distinct are to some extent similar as they are considered a criminal offence.

Root causes of the problem -

1. Preference of boys over girls - We still live in a society where girls are subjected to bias. Be it
cultural or societal.They are considered as a burden. There are people who still believe that the
last rites of parents should be done by son as it will lead the person to Moksha. We still live in a
society where girls are not treated at par with the boys be it in the field of education or
profession.

2. Social and financial security associated with sons - Parents often think that after they have
reattained a certain age it is the son’s responsibility to take care of them and they believe that it is
the son who will be able to provide them with basic amenities and not the daughters.

3. Dowry - Many poor families with a fear of dowry tend to kill the female foetus in the womb of
their mother.

4. Advancement in technology - With technology reaching newer heights it becomes easier for
determining the sex of the child before birth and once a married couple comes to know that it is a
female they tend to abort it in the womb.

Female foeticide from Human Rights perspective -

All human beings in this world are entitled to basic human rights. Human rights as such are
universal in nature. Violence against women has been prevalent in India since time immemorial
be it heinous crimes like rape,sati, female foeticide, female infanticide and many other forms.
The World Health Assembly in the year 1996 supported the concept that violence against women
is a Public Health problem and female foeticide is one of such extreme manifestations of
violence against women.

The situation of human rights violations in India is alarming. As per surveys conducted lakhs of
females are victims of female foeticide as a result of which the number of girls has been
continuously decreasing and has become a matter of concern. The Constitution of India under
Article 14 provides for the Right to Equality and the Right to Live with dignity enshrined under
Article 21. Pre-natal sex determination tests violate both of these rights. The right to life is a
basic form of human rights and is recognized by almost all international instruments. Now the
question that arises is whether a foetus has a right to life? There is no definite answer to this.
Even though the sanctity of life is recognized by various constitutions globally, they have failed
to address the protection of the life of a foetus.

Judicial pronouncements are inconclusive and differ in various jurisdictions across the world. In
India, the right to life is guaranteed to every person under Article 21 of the Constitution of India.
The very concept of personhood complicates the position of the legal status of a foetus. Often
courts refrain from answering this question due to complex issues that arise in determining this
question – when does the foetus qualify as a person? Rather than refraining the courts should
come forward and address this issue. There is a desperate need for the courts to provide clarity
on this vital issue and recognize the rights of the foetus. In India, Article 21 of the Constitution
guarantees the right to life and liberty to every person. But it is doubtful if this would include the
life of the foetus as the meaning is restricted by the use of the word person. The Indian
Constitution has recognized the right to life under Article 21 in several cases. The Constitution
of India does not address the issue of unwanted girl child. Hence, the right of the girl child may
be construed in broader terms and should be inferred as the right to be born and not to be aborted
only because she is a girl. According to a survey conducted by UNICEF over 3 years (1994-
1996), there are only five states where no cases of foeticide have been reported. Those five states
include Sikkim, Nagaland, Meghalaya, Mizoram and Jammu & Kashmir.

Socio-legal aspect of Female foeticide -

While abortion in India is legal there are several exceptions when it comes to abortion. It is a
crime to abort a pregnancy solely because the foetus is female. Aborting a child on basis of
gender attracts rigorous punishments. We have seen from time and again that female foeticide is
prevalent in India. The patriarchal society which we live in still believes that it is the son who
will bring joy, name and fame to the family. Hence, whenever a couple came to know about a
female foetus after an ultrasound they caused the child to be aborted. It was high time that the
law and regulations needed to interfere and protect the interest of such children. Hence, The Pre-
Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act,1994 was enacted to curb and
end female foeticide by banning techniques of sex determination before or after conception. This
very Act provides various rules that keep a check on female foeticide. It mandates the
maintenance of detailed records of foetal scans which is a key feature of this Act. The Act not
only acts as a measure in preventing sex determination but also prohibits various advertisements
related to pre-natal sex determination and sets out punishments for those who violate these laws.
This act has played a crucial role in improving the sex ratio across the country through
demanding methods of deterrence. Sex ratios have improved in many states to a wider extent.
However, the act has not been successful in completely eradicating female foeticide from India.
There are several loopholes. Social evil continues to persist in the country due to the regressive
outlook of people and the existence of loopholes in the execution of the law. Despite its
imperfections, the Act stands as a great example of the power held by legislation to bring
changes in society. The socio-legal enigma of female foeticide presents many problems one of
which is an imbalance in sex ratio.Apart from the above, a feeling has to be developed in the
minds of the people that she is not just a liability.She is the daughter, she is the sister, she is the
mother and she is the life partner of a man.

In Centre For Enquiry Into Health And Allied Themes (CEHAT) v. Union Of India & Ors 1,
the Supreme Court realized that “discrimination against girl child still prevails because of
prevailing uncontrolled dowry system despite the Dowry Prohibition Act, as there is no change
in the mind-set or also because of insufficient education and/or tradition.”

1
(2003) 8 SCC 412.
In the case of Voluntary Health Association of Punjab v UOI 2, the Hon’ble Justice Dipak
Misra observed that everyone who is involved in female foeticide tend to forget that a woman of
the future is crucified and as a result, the sex ratio gets affected.

Conclusion

India has developed a lot in all fields such as in the field of education, science, health or in the
economy post-independence, but unfortunately in India, we did not bring equality to the male
and female sex ratio. The unbalanced sex ratios continue to form a salient feature of Indian
societies. With the introduction of various legislations, the sex ratio in India has seen an
improvement but it is a mere improvement.More stricter forms of punishment should be
introduced to eradicate female foeticide. The main reason behind female foeticide is the
regressive thought process that is still in the minds of people. Such ideologies cannot be
eradicated by any law but can only curb it. The regular submission of reports highlighting the
prenatal tests and procedures conducted by a clinic plays an important role. By a collection of
such data, one can know about the crimes against girl child and some prominent steps can be
taken to curb it down to some extent. Human rights are not only for men but women also have
human rights as human beings, For this, we must work with the cooperation of voluntary
organizations to create awareness. A woman will also have to come forward against female
foeticide because foetal testing and abortion cannot be done without her permission. Therefore,
the woman herself, her family and society will raise their voices against female foeticide together
only then this sin will be eradicated from human society.

2
Writ Petition (Civil) No. 349 Of 2006.