The Quint: Decade-long war Against Female Foeticide Dismissed Within Minutes
A group of civil society bodies will launch an online campaign in support of a woman doctor, whose eight-year-old struggle for justice against “illegal sex determination” of her twin daughters, ended on a bleak note.
Mitu Khurana, 40, said to be the first woman in the country to file case against her husband and in-laws under the Pre-Conception & Pre-Natal Diagnostic Techniques Act (PC-PNDT), 1994, has exhausted her legal recourse after the Supreme Court recently dismissed her case.
“My in-laws had illegally determined the sex of the foetus, and after finding that I was carrying twin daughters, forced me to abort them,” she alleged.
“I fought this battle from the lower court to the Supreme Court. My fight was not just for myself but also for my daughters and for many women who continue to suffer harassment. Was it my fault that I fought back and struggled for justice,” she said.
A few representatives from different civil societies and women rights bodies today held a press conference here in the presence of Khurana, a physician, and appealed to people to support her cause.
“After losing in court, we would now go to peoples court. Some of the organisations fighting for womens right have decided to rally behind this cause and very soon we are going to launch an online campaign seeking justice for her,” President, Forum Against Corruption and Threats, Indu Prakah Singh told reporters.
Last Friday, after a hearing that barely lasted a few minutes, the Supreme Court dismissed Dr Mitu Khurana’s case. It was a bitter end to the Delhi resident’s eight-year-old battle against the doctors who allegedly conducted an ultrasound to illegally determine the sex of her twin daughters, apparently in collusion with her husband and in-laws.
Earlier, in April, the Delhi High Court had quashed the proceedings against the two accused doctors – Dr Harsh Mahajan of Mahajan Imaging, and Dr Nitin Seth, the radiologist who conducted the ultrasound – as it felt the case had exceeded the period of limitations of three years, a stipulation under criminal law.
Khurana’s case, activists said, is a huge setback to the women’s movement against the country’s rapidly declining sex ratio. At last count, according to the 2011 Census, the child sex ratio had declined from 927 girls for every 1,000 boys to 919 girls to 1,000 boys.
How it all started
Khurana’s story began in 2005 when, a year after marriage, she became pregnant. Her doctor husband Kamal Khurana and his relatives, she said, pressed her for an illegal sex determination examination, which she refused to do. They later tortured her and tried to force her to terminate her pregnancy, allegedly on finding out that she was carrying girls.
Sick with stomach pain and nausea – after she was allegedly fed cake with eggs, which she was allergic to – she was admitted to Jaipur Golden Hospital in Delhi. Here, she underwent an ultrasound examination – without her consent and while heavily sedated, she claimed.
In 2008, she found the ultrasound report and suspected it was actually a sex determination test. She filed a complaint with the National Commission for Women, the health minister and the appropriate authority under the Pre-Conception and Pre-Natal Diagnostic Techniques Act. When no major action was taken, she filed a complaint before a magistrate.
When the magistrate court summoned the accused doctors in 2011, they, in turn, filed a case in the Delhi High Court.
Khurana – said to be the first Indian woman to sue her now former husband and his relatives under the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994, that bans foetal gender determination – lost the case despite having documentary evidence against the doctors.
During the trial, Dr Mahajan admitted in an affidavit to running an ultrasound imaging centre without registration, in direct contravention of the 1994 law.
Government health authorities, too, backed Khurana. They said the imaging centre had failed to submit her Form F – mandatory under law to be filled by the pregnant woman undergoing such an ultrasound test – to them. Her form, in fact, had gone missing.
The Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, which aimed at stopping female foeticide and arresting declining sex ratio in India by banning and penalising sex determination of unborn babies, is not being implemented effectively and there is a huge need to sensitise society on it, say experts.
“The act was brought in as a socially beneficial legislation, aimed at eradicating the persistent evil of sex-selective ultrasound tests but the proper and effective implementation of the law has run into rough weather for a variety of reasons,” advocate Indira Unninayar said in a press meet which stressed “how sex-determination test offenders are getting away with murder” here on Tuesday.
Unninayar, along with other activists and lawyers, drew attention to the glaring loopholes in implementation of the law, and how certain hospitals and ‘imaging centres’ exploit them to indulge in gross illegalities and enjoy impunity.
Referring to the case of Mitu Khurana, who has been fighting a courageous battle against her being deceived into having a sex-determination test, she said: “Both the government and prosecution are reluctant to, and/or have shown insufficient interest in ensuring that the law is enforced in both letter and spirit.”
“Invest Rs.500 now and save Rs.50, 000 later” are advertisements still seen in Indian cities for gender biased sex-selection and elimination. Writer, Patralekha Chatterjee catches up with Mitu Khurana who had made legal history by prosecuting her doctor husband for illegally making her go through a sex-determination test but her fight is far from over.
I have been writing about gender biased sex selection and sex selective elimination for years. I filed my first report on the subject in 1988. It was about a notorious doctor couple in Amritsar who openly ran an anti-natal sex determination clinic. “Invest Rs.500 now and save Rs.50, 000 later”, they advertised. The blatant message that elimination of a female foetus could save parents the expenditure on dowry earned them huge notoriety, also customers. The doctors viewed their work as ‘social service.’
“We are saving the mothers and the unwanted daughters,” the wife told me without the slightest trace of remorse. I remember my visit to their clinic. It was a week-day evening. A row of young women were waiting patiently outside their chamber. Many were newly married. All looked tense, distraught. I remember one woman in an advanced stage of pregnancy. She was all too aware of the risks of an abortion in her state but the fear of what would happen to her if she gave birth to a baby girl came through as she whispered.
That distressing image has stayed with me.
Over the years, I have filed more reports — interviews with intrepid activists fighting to get culprits punished, with doctors who were willing to critique their own community and so on.
India has changed. But the deep-seated cultural preference for sons remains as strong as ever. Earlier it was seen as an obsession confined to some parts of the country – the north and the west. Today, the diabolic coming together of prejudice and misuse of technology has spread the problem across the country.
Sex selective elimination of a foetus is easy.
The data is all too well-known. The child sex ratio, which shows the number of girls per 1000 boys between the ages 0-6, plummeted to 918 for India in 2011 from 927 in 2001, according to the latest Census data.
Proposals to curb sex-selective abortion should be made with due deliberations even as social realities cripple India’s attempts to improve a skewed sex ratio.
It has been five years since the 2011 Census revealed the dismal sex ratio in India, its worst since Independence: That of 943 females per 1,000 males. Shockingly, child sex ratio (of those between 0-6 years of age) was lesser: 919 females per 1,000 males. Five years after the census, India is still grappling with this social anomaly despite having taken various measures to stem it.
Stirring a hornet’s nest, the Minister for Women and Child Development, Maneka Gandhi recently suggested that sex determination be made mandatory and each pregnancy be registered and tracked till the time of birth. Speaking at the sidelines of an event, Maneka said her ministry had sent a proposal for the same to the Ministry of Health and Family Welfare under whose purview the Act falls. However, this proposal was soon retracted by the minister. When Tehelka contacted the Ministry of Women and Child Development, it defended Maneka’s statement by saying that the Act (PCPNDT) does not come under its purview. Why then did the minister make such a statement without proper deliberation?
For starters, her statement completely negates the premise of the existing law – Pre Conception and Pre Natal Diagnostic Techniques Act 1994 (PCPNDT Act) – that bans sex determination unless it arises out of medical complications. The Act was enacted in the context of rising sex-selective abortions due to the ready availability of ultrasounds. “Sex-selective abortions rose into prominence because ultrasounds would identify the female foetus and parents who preferred a son began terminating the pregnancy,” says Mohan Rao, social medicine and community health professor in Jawaharlal Nehru University (JNU). Through banning sex determination, the Act was also clamping down on medical practitioners who aided such abortions.
Maneka’s ‘proposal’ thus met with lot of resistance from various sections as it was seen as a move to benefit medical players. “This is a reprehensible statement which points to the fact that Maneka isn’t there for the welfare of women but for the welfare of the medical industry,” says Rao. An abortion, whether sex-selective or not, cannot be done without the help of the medical fraternity. A statement issued in public domain by a national collective of women’s organisations and social activists points out that Maneka’s statement undermines the efforts to check the handin- glove involvement of health professionals. “The pcpndt Act was formulated precisely to address the manner in which unscrupulous health professionals and corporate profiteers have misused technology and made sex selection into a lucrative business venture,” it reads.
Shifting the onus of the pregnancy on the mother effectively means overlooking the role of the medical establishment. “Tracking of pregnancies will conveniently let the medical fraternity off the hook and that will definitely lead to further increase in female foeticide,” says Tehmina Arora, lawyer and founder of Vanishing Girls, a campaign dedicated to fight selective sex abortion.
Maneka’s statement has again brought to the fore the many debates surrounding the subject of abortion and foeticide. The government has time and again sought to address the problem of sex selective abortions from the National Action Plan (1991-2000) to the most recent Beti Bachao, Beti Padhao scheme, launched by the Centre. While these create awareness against sex selective abortions, one is forced to question the extent to which the State can interfere in the personal and biological sphere of a woman’s life.
Through her statement the minister has reinstated the fact that women will be the only ones made answerable, overlooking external factors that push for a selective termination of pregnancy. Additionally, such deep intrusions in a woman’s personal life reiterates that she is incapable of making decisions for herself. “The statement made by Maneka Gandhi is unacceptable as it turns towards women’s surveillance and policing, making it extremely problematic,” says Nivedita Menon, feminist and professor in JNU for comparative politics and political theory.
Further, Maneka’s ‘proposal’, if implemented will impinge on a woman’s right to abortion. The argument arises from an inconclusive debate around a woman’s right to her body and thus her choice whether or not to terminate the pregnancy. The other facet of this debate equates terminating a pregnancy with foeticide – the word foeticide coinciding with words like matricide or patricide amounting to murder. However, what could complicate matters is when a woman herself makes a choice towards sex selective abortion.
Another problem arising out of Maneka’s comment is the implication of criminalising pregnant women who already bear the brunt of gender discrimination in society.
“I have faced opposition from all quarters in my fight against female foeticide. A woman willing to fight to save her daughters has no support system. Such a move will only deem the woman as criminal,” says Dr Mitu Khurana, survivor of violence for giving birth to twin daughters and one of the most prominent faces fighting against sex selective abortions in India.
It is an open secret that women are at the risk of being largely mistreated if their families do not want a daughter and with sex selection being mandatory, she will find herself in a hostile environment detrimental to her and her child. “Women carrying female foetuses will be starved and beaten, “accidental stove bursts” will increase when relatives find out that the child is a girl,” says Khurana. “Women are mostly forced into sex selective abortions and tracking a pregnancy is going to make the woman even more vulnerable with the risk of her being thrown out of the house,” agrees Arora.
The intention to lift the ban on sex determination in order to check the falling child sex ratio has kicked up quite a controversy in India.
The Union Women and Child Development (WCD) Minister Maneka Gandhi’s intention to lift the ban on sex determination in order to curb sex-selective abortions in India misses the woods for the trees.
The law to ban sex determination/sex selection – the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994 – was created to counter the misuse of reproductive technologies for elimination of female foetuses.
The nexus between illegal and unethical medical practitioners and families with an aversion for daughters has been addressed through the various facets of this legislation that was created after country-wide consultations with women’s groups, rights-based organisations, ethical medical practitioners, and citizens’ forums.
One of the most progressive elements of this law is that it keeps a clear distinction between the right to abortion and sex-selective abortion, thereby upholding reproductive rights of women.
The unfortunate reality is that the law has not been enforced properly.
At the same time, in regions where it did get enforced, such as in Punjab, which had the dubious distinction of having the worst child sex ratios in 2001, there has been a positive turnaround in terms of numbers in 2011.
From 795 girls per 1000 boys in the 0-6 age group in the 2001 Census, the child sex ratio in the state has increased to 846 girls per 1000 boys as per the 2011 Census. In fact, the Union government’s holistic programme of Beti Bachao Beti Padhao has a huge component dedicated to the strict implementation of the PCPNDT Act.
So, what are the factors that are pushing the Ministry to even consider withdrawing the ban?
First, due to the pressures on unethical and illegal medical practitioners for accountability and transparency, there is a reaction and counter move by the radiologists, ultrasonologists, and various other vested interests to influence the Ministry.
Another reason is the Prime Minister’s urgent call to provide immediate and quick results on the issue of a skewed child sex ratio.
Since the higher echelons of the government have fraternal bonding with the powerful business interests as well as the doctors’ lobbies, they have discovered their magic silver bullet to deal with the problem at hand – the close monitoring of the pregnancies of women, after compulsory sex determination.
Never mind that it is a travesty of gender justice that the women have to be criminalised and their privacy, bodily integrity, and dignity is completely set at naught.
The limited right to abortion that we have in India will be seriously compromised by this. And, as for the Minister’s fear that the prisons have no place for erring doctors, it will be assuaged by the fact that it will be women who will fill up the prisons now.
More than anything else, the proposed compulsory sex determination will multiply the risk of violence against women by the marital family either to ensure the elimination of female foetus or force her to keep the male foetus in situations where it may be risky for her to continue with her pregnancy.
Instances of ‘accidental’ stove burst deaths and other forms of violence to induce abortion will become more common.
Just as in the case of Dr. Mitu Khurana, the first woman complainant under PCPNDT Act, who reported increased violence against her by her in-laws and husband, once they came to know the sex of the foetus.
Mitu, who has given birth to twin daughters, has managed to do so due to sheer grit and determination and by escaping her marital home.
Although she has been fighting in the Court for the last seven years and justice has eluded her, she believes in the positive efficacy and strength of the PCPNDT Act. Many women like Mitu have been able to withstand pressures to deliver sons by emphasising on the illegality of sex determination. It will impact women’s ability to report on the violence and pressures for sex-selective abortion, since sex determination will become legal.