Foeticide and Pre-Natal Testing: Conceptual Dilemmas
Authored By- Anushka Mhatre
Keywords: foeticide, female foeticide, pre-natal testing, women, fetus.
Indian culture believes in “Yatra Naryastu Pujyante Ramante Tatra Devata, Yatraitaastu Na Pujyante Sarvaastatrafalaah Riyadh”[i]which means"where women are honored, divinity blossoms there; and where they are dishonored, all-action remains unfruitful." Advancement in the field of science and technology is a must for the progress of the nation. But what matters is its manifestation and beneficial application. Medical science has developed in a manner that now it is possible to detect abnormalities even before the birth of a child with the technique of prenatal diagnosis. But this progress in the field of medicine is used mainly for sex detection which ultimately leads to foeticide if a female fetus is detected. This article throws light on prenatal testing and the dilemmas associated with it. It further analyses the dark side of prenatal testing i.e. female foeticide and the penal provisions against it.
Prenatal diagnostic tests mean ultrasonography, or any test conducted to detect genetic or metabolic disorders or chromosomal abnormalities or congenital anomalies. This advancement of medical science is used to detect any genetic abnormalities in the fetus and thus to enhance and ensure that they led a healthy life. Many pregnant women undergo this test on the advice of doctors to ensure that if the fetus is diagnosed with deformities then timely action can be taken and thus the child born is healthy. Prenatal testing encourages the continuation of pregnancies if there is an assurance of fetal normality and suggest termination in vulnerable situations. But the harsh reality is that this technique of prenatal diagnosis is repeatedly used for sex detection and not for genetic purposes. The direct result of sex detection is female foeticide i.e. killing of a female fetus in the womb itself. Ultrasonography is the most used technique for prenatal diagnosis that can detect abnormalities related to the nervous system of the fetus. Amniocentesis is a technique that can detect specific genetic abnormalities and disabilities of the fetus. But today, little are these techniques used for deformities detection and more for sex detection. Research by The Lancet, a premier British Medical Journal says that sex selection claims up to 5,00,000 female fetuses in India every year.
Dilemmas behind Prenatal testing
The main aim of prenatal testing is to provide the family with information regarding the pregnancy, whether the condition can be improved or not so that termination decisions can be taken. Selective abortion of a fetus as treatment often comes with many social and ethical dilemmas. Termination of pregnancy can be justified after the 2ndtrimester if it appears that the fetus is incompatible with postnatal survival or some serious abnormalities like down syndrome is detected. Issues arise of maternal versus fetal rights when women with positive results of the test choose elective abortion rather than definitive workup. To respect maternal autonomy or to act for the benefit of the child is the basic conflict. Many philosophical, legal, and social problems arise due to prenatal testing such as consent of parents, confidentiality, human rights of the unborn child and the mother, health, surety of test results, after result decisions, etc. A positive result of prenatal testing leads to the emotional instability of the mother as it becomes very difficult for the mother to take a decision of either continuation or termination. India is a country dominated by patriarchal and religious practices. The decision to choose between the two is also affected due to such beliefs. Human life is the most precious and sacred life. It becomes extremely difficult and regrettable to accept that a precious fetus whose life has just begun, ends prematurely. Professional ethics of the medical field also play an important role in this part as it prohibits active killings. Opinions of various medical professionals differ when the fetus is found suffering from certain disabilities and deformities. With fetuses suffering from down syndrome, it becomes difficult for a doctor to even suggest what’s better of the two- sparing a life to save him from future sufferings or give birth to a child with chances to have a painful disability. But the ultimate aim of prenatal testing is to ensure the healthy life of the fetus and the mother. Women today willingly undergo prenatal diagnosis. Such a mother who undergoes these tests with good intentions is not less sympathetic but an example of being a responsible parent.
A backlash of Prenatal Testing: Female Foeticide and the Skewed Sex Ratio
Prenatal testing is aimed at detecting abnormalities in the fetus. But these techniques are used more for sex detecting which ultimately results in foeticide if the detected sex is a female. In an era where women have progressed in every other field, they are still considered as burden-both social and economic. To the astonishment, the heinous crime of female foeticide is practiced not only by the illiterates but also by highly educated families. The discrimination against female starts from the womb and ends up in the tomb. The main reason for this evil practice is that girls are considered to be a “liability” whereas a son is considered as an “asset” It’s a common perception that a son will carry forward the name of the family and a girl would not which results into the death of thousands of female fetuses every year. A survey by the Population Research Institute(PRI) says that approximately 15.8 million girls were missing due to prenatal sex selection between 1990 and 2018 in which 550,000 were from 2018 alone. The direct impact of female foeticide is the skewed sex ratio of the country. As per the census, the sex ratio is 107.48 males per 100 females in 2019 i.e. 930 females per 1000 males. A report released by the United Nations Population Fund in 2020 states that India accounts for 45.8 million of the world’s 142.6 million “missing females” over the past 50 years due to foeticide.
Legal provisions to curb gender discrimination and female foeticide have been in force since the inception of the practice. Taking inspiration from the Maharashtra government passed the Maharashtra Regulation of Prenatal Diagnostic Techniques Act, 1988, the Central Government passed the Pre-natal Diagnostic Techniques Act (PNDT) in 1994 which was again amended to Pre-Conception and Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) (PCPNDT) Act, 1994. The main aim of this act is to prevent the misuse of prenatal techniques for the purpose of sex detection which results in female foeticide. The act prohibits the conduction of any test including ultrasonography to determine the sex of the fetus. No person, including the one who is conducting the procedure as per the law, is allowed to communicate the sex of the fetus to the pregnant woman or her relatives in any manner. Advertising for pre-natal and pre-conception sex-determination facilities in any form is punishable under this act. This can lead to the termination of the medical license as well. The challenge to the PCPNDT Act, 1994 on grounds of violation of Article 21 of the Constitution was rejected by the Supreme Court in Vinod Soni v.Union of India.[ii]The Supreme Court in order to stop illegal sex determination directed all States to confiscate ultrasound equipment from clinics that run without licenses.[iii]The Constitution guaranteed to all the right to live a dignified life[iv]and imposes a duty on everyone to relinquish unjust and inhumane practices including sex-selective abortions resulting in female foeticide within its wide purview. The Indian Penal Code, 1860 under Sections 312 and 131penalizes voluntary causing of miscarriage with both fine and imprisonment for three years and miscarriage without the consent of women for 10 years respectively. An act done with intent to prevent a child from being born alive or to cause it to die after birth or act done to cause quick death of an unborn child amounting to culpable homicide is punishable under Sections 315 and 316 respectively for imprisonment up to 10years and fine. Similarly, if the pregnant woman loses her life when an act is done with the intent to cause miscarriage is also punishable with imprisonment for up to 10 years.
Technology when rightly used proves to be a great benefit to society. Likewise, the progress in medical science to detect genetic disorders or disabilities of the fetus is to ensure that the child born as well as a mother leads a healthy and happy life. Misuse of this technology to detect sex and kill an innocent girl child is against the principles of natural justice. More stringent punishments must be imposed against the people who are a part of this evil practice. Indian soil is waiting for a time with no gender discrimination. This can happen only when awareness is spread, and steps are taken on an individual level to fight against female foeticide. Because, in the end, a son remains a son until he gets his wife, but a daughter remains a daughter till the end of her life.
[i] Manu, Chap. III. Verse 58. [ii] Vinod Soni v. Union of India, 2005 Cri LJ 3408. [iii] CEHAT v. Union of India, 2001 5 SCC 577. [iv]Indian Const. art 21. References