LET GIRLS BE BORN ELSEWHERE: SEX SELECTIVE ABORTION IN INDIA AND THE NEED FOR SELF-REGULATION WITHIN THE MEDICAL PROFESSION

Erica Harrigan | 1 Regent J. Glob. Just. & Pub. Pol. 59 (2014)

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INTRODUCTION

Let girls be born elsewhere, let boys take birth here. Son is wealth. Son is a blessing. The son will be the father’s strength in old age. The father will go to heaven if the son lights his funeral pyre. It is the son who will rescue the father from hell.^[1]

This Indian saying is indicative of a pervasive societal preference for sons. In India, the desire for sons is so strong that half a million girls per year are killed via sex selective abortion in the hopes that a future pregnancy will produce a son.^[2] Prenatal medical technology like the ultrasound is so widely available and cheap that even the poorest of Indian families can determine the sex of a fetus and decide if they want to allow it to live.^[3] This has resulted in an increasingly skewed sex ratio that has dangerous consequences for India’s future.^[4] Despite efforts to curb these statistics, the latest Indian census in 2011 revealed that the sex ratio of the number of girls born per 1000 boys had dropped yet again from past censuses.^[5] A natural sex ratio at birth is an average of 105 boys born for every 100 girls.^[6] In 1981, the ratio in India was 962 girls for every 1000 boys.^[7] In 1991, that dropped to 945 and in 2001, continued its descent to 927.^[8] In 2011, the ratio dropped to an all-time low of 914.^[9]

Traditionally, Indian culture has valued sons and systematically discriminated against girls.^[10] Infanticide of girl children has been documented for centuries, but the introduction of ultrasound technology in India opened a floodgate of prenatal sex determination followed by sex selective abortions.^[11] To combat the dropping ratio of girls, the Indian Parliament enacted the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act (PNDT) in 1994, which criminalized sex determination and sex selective abortion.^[12] Sadly, however, society and medical professionals alike generally ignored the PNDT Act.^[13]

In 2001, the Indian Supreme Court responded to a 1998 report regarding the lack of enforcement by issuing directives for more vigorous enforcement.^[14] Since those issuances, awareness and advocacy for the rights of the girl child have slightly increased, but as evidenced by the continuous drop in sex ratios, the current course of action is not effective.^[15] In order for there to be a significant drop in sex selective abortions and an evening out in the sex ratio, the medical community must take responsibility for its role in sex determination and abortion.^[16] The Indian Medical Association (IMA) and the Medical Council of India (MCI) must enforce the PNDT Act and the MCI’s Code of Medical Ethics, so that doctors who have direct control of these technologies are held responsible for their actions.^[17]

This Note discusses the historical discrimination against girl children in India, societal motivations for sex determination, and the effects of the introduction of prenatal medical technology as well as the projected consequences of sex selective abortion. This Note then discusses the current state of the law in India and the PNDT Act. Finally, this Note analyzes the role of the medical community in sex determination and sex selective abortion and emphasizes the necessity of enforcing the Code of Medical Ethics in a way that is self-regulating.

BACKGROUND

A. Historical Discrimination Against Girl Children

1. Causes of Female Discrimination Against Girl Children

Dominant patriarchal family structures in Asia have traditionally placed great value on producing a male heir.^[18] “Property rights [are] passed down hereditarily from father to son.”^[19] The son not only “carr[ies] on the family name and caste,” but also “care[s] for his parents in their old age,” while a daughter is considered “part of her in-laws’ family” once she marries.^[20] Because a son receives the family inheritance, he is perceived as a critical source of stability and wealth and as such is a better “investment” than a daughter.^[21] In India, a son’s birth raises the social and economic standing of a family, while the birth of a daughter does not.

Not only are girls perceived as not bringing money into a family, but they are also perceived as taking money away from the family in the form of a dowry.^[22] An Indian proverb demonstrates the prevailing cultural bias against daughters: “Grooming a girl is like watering a neighbor’s garden.”^[23] When a daughter marries, she leaves her family and spends the rest of her life working for her in-laws’ family.^[24] In addition, the custom of dowry in India demands that the family of the bride pay the family of the groom.^[25] Though this custom has deep roots in Hindu law and historically was voluntary, the current practice is not voluntary and requires a significant amount of money and goods whether or not the bride’s family has the financial ability to pay.^[26] The demanded dowry can amount to up to five years’ income for some families because it is calculated to be proportionate to the groom’s potential earning capacity.^[27] Despite the Dowry Prohibition Act that was passed in 1961 outlawing dowry payments, the practice continues.^[28] If a groom’s family is not satisfied with the dowry payment, there can be serious repercussions for the bride, including abuse and even death.^[29] These deaths are often called “bride burning”^[30] in reference to the “accidental” kitchen fires that kill these young brides.^[31] Since 1947, when India became independent, 72,000 brides “between the ages of fifteen and twenty have been burned to death.”^[32] Dowry is only one example of a culture that devalues girls to the extent that it is seen as merciful to selectively abort or kill them to prevent them from experiencing bride burning or other discrimination.^[33]

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1. Discrimination Against Women: Millions of Girls Aborted in Recent Years in
   India, BUDDHIST BROADCASTING NETWORK (Oct. 16, 2013), http://www.bbncommunity.com/discrimination-women-millions-girls-aborted-recent-years-india/ (quoting Taslima Nasrin, “It’s a Girl!” “Kill Her”, FREETHOUGHTBLOGS.COM (Apr. 30, 2012), http://freethoughtblogs.com/taslima/2012/04/30/its-a-girl-kill-her/). ↩︎
2. Kristi Lemoine & John Tanagho, Note, Gender Discrimination Fuels Sex Selective Abortion: The Impact of the Indian Supreme Court on the Implementation and Enforcement of the PNDT Act, 15 U. MIAMI INT’L & COMP. L. REV . 203, 204–05 (2007). ↩︎
3. Id. at 205. ↩︎
4. Id. ↩︎
5. OFFICE OF THE REGISTRAR GEN. & CENSUS COMM ’R, INDIA, Final Population Totals, CENSUS INFO INDIA 2011, http://censusindia.gov.in/2011census/censusinfodashboard/index.html (last visited Oct. 22, 2014); see also Sex Ratio in Indian Population – 2011, MED INDIA,
   http://www.medindia.net/health_statistics/general/sex-ratio-in-india-2011.asp (last visited
   Oct. 22, 2014) [hereinafter Sex Ratio in Indian Population – 2011]. ↩︎
6. MARA HVISTENDAHL, UNNATURAL SELECTION: CHOOSING BOYS OVER GIRLS, AND THE CONSEQUENCES OF A WORLD FULL OF MEN xiii (2011). ↩︎
7. OFFICE OF THE REGISTRAR GEN. & CENSUS COMM’R, INDIA, Gender Composition, CENSUS OF INDIA, http://censusindia.gov.in/Census_And_You/gender_composition.aspx (last visited Oct. 22, 2014). ↩︎
8. Id. ↩︎
9. Sex Ratio in Indian Population – 2011, supra note 5. ↩︎
10. See Lemoine & Tanagho, supra note 2, at 218. ↩︎
11. See Vineet Chander, Note, “It’s (Still) a Boy . . . “: Making the Pre-Natal Diagnostic Techniques Act an Effective Weapon in India’s Struggle to Stamp Out Female Feticide, 36 GEO. WASH. INT’L L. REV. 453, 453, 457 (2004). ↩︎
12. Lemoine & Tanagho, supra note 2, at 206. ↩︎
13. Id. ↩︎
14. Id. ↩︎
15. Id. at 206–07; Sex Ratio in Indian Population – 2011, supra note 5. ↩︎
16. Chander, supra note 11, at 466. ↩︎
17. Id. ↩︎
18. Monica Sharma, Twenty-First Century Pink or Blue: How Sex Selection Technology Facilitates Gendercide and What We Can Do About It, 46 FAM. CT. REV. 198, 200 (2008). ↩︎
19. Chander, supra note 11, at 455. ↩︎
20. Id. ↩︎
21. Sharma, supra note 18, at 200–01. ↩︎
22. Sharma, supra note 18, at 200–01. ↩︎
23. Id. at 200. ↩︎
24. Alison Wood Manhoff, Note, Banned and Enforced: The Immediate Answer to a Problem Without an Immediate Solution—How India Can Prevent Another Generation of “Missing Girls,” 38 VAND. J. TRANSNAT’L. L. 889, 899 (2005). ↩︎
25. Id. at 900. ↩︎
26. Id. ↩︎
27. Andrea Krugman, Note, Being Female Can Be Fatal: An Examination of India’s Ban on Pre-Natal Gender Testing, 6 CARDOZO J. INT’L & COMP. L. 215, 224 (1998). ↩︎
28. Manhoff, supra note 25, at 901. ↩︎
29. Id. ↩︎
30. Krugman, supra note 28, at 224. ↩︎
31. Dowery Deaths and Bride Burnings, VDAY, http://www.vday.org/bride+death#.VAzmz2PCevk (last visited Oct. 30, 2014). ↩︎
32. Krugman, supra note 28, at 224. ↩︎
33. See Manhoff, supra note 25, at 905; see also Varsha Chitnis & Danaya Wright,
    The Legacy of Colonialism: Law and Women’s Rights in India, 64 WASH. & LEE L. REV.
    1315, 1339 (2007). ↩︎