Sex Selection/Determination in India: Contemporary Developments

This short note will deal briefly with contemporary developments relating to the decline of child sex ratios due to abuse of medical technologies. The historic contribution of the Maharashtra campaign, which first called public attention to this problem, led by the Forum against Sex Determination in the mid-1980s has been highlighted by RP Ravindra, Vibhuti Patel, Flavia Agnes, Amar Jesani and others. This note will largely focus on the 2001 Census results and developments in the ongoing litigation in the Supreme Court of India to enforce implementation of the Prenatal Diagnostic Techniques Act, 1994.

The 2001 Census [1] highlighted the drastic decline in child sex ratios in several states in North and West India and continued declines in major Southern states. It was in the North-Western and Western states that private fetal sex determination clinics were first established and where the practice of selective abortion of female fetuses became popular in the late 1970s and early 80s. The Southern states, e.g. Karnataka, Tamil Nadu and Andhra Pradesh, have shown declines in child sex ratios but these are less than in the Northern states, as sex determination clinics emerged in the South only a decade after they became popular in the North. The emergence and spread of prenatal sex determination clinics are the early warning signals on the distortion of sex ratios at birth in the coming decade following selective abortion of female fetuses. The recently available urban–rural figures for 2001 on child sex ratios provide further confirmation that these declines are caused by the relative availability of sex determination facilities. Medical professionals and sex determination clinics are mostly present in the urban areas. The decline in urban areas is more than twice that seen in rural areas (935:903 and 948:934, respectively) over the inter-Censal period 1991–2001. In fact of all the 35 states and union territories of India, it is only in the small states of Kerala and Manipur that urban child sex ratios have not declined.

In February 2000, I filed a public interest litigation in the Indian Supreme Court along with two non-governmental organisations, CEHAT in Mumbai and MASUM in Pune, against the Union of India and all the State Governments for the non-implementation of the Prenatal Diagnostic Techniques Act, 1994 (PNDT) and for inclusion of all emerging technologies that can be abused to eliminate girls under the purview of the Act. The case is still under consideration, and it is therefore premature to discuss its overall impact. Nevertheless, there have been significant developments. The interim judgement was delivered on 4 May 2001, and since August 2001 hearings have taken place almost every month. Following the Court's directives, State Governments have undertaken awareness raising on this issue, and the media have been prominently covering the Court proceedings and the follow-up.

Registration of sex determination clinics and of ultrasound machines, required under the Act, is largely being undertaken at the district level though the pace in some states is tardy. Few states have started taking action against violators of the law. Of course there is a long way to go before all the district medical authorities take steps to initiate strict regulation of ultrasonography. This will be effective only if civil society organisations, ethical doctors and honest officials work aggressively to curtail the promotion of sex determination. Progressive lawyers must keep a constant watch so that those who make money from sex selective abortion do not use the lower courts to subvert the enforcement of the PNDT Act. Already I am aware of challenges in the High Courts of Calcutta, Karnataka, Rajasthan and Kerala.

To ensure that all ultrasound machines are registered, in December the Court asked the manufacturers to provide information on the customers to whom they sold machines over the last five years. Over 11,000 names have been provided by different companies as of mid-February 2002. In January, the Court asked three professional medical associations to provide lists of all members who use machines. Extensive media coverage of the hearings has led to other parties joining in our case in the Supreme Court. The most notable is Dr Aniruddha Malpani from Mumbai, who has been advertising sexing embryos for non-medical reasons on the Internet. He asserts that his patients, who are usually affluent, are excellent parents and therefore should have the privilege of sex selection for family balancing. Both the Union of India and the Maharashtra Government have filed affidavits opposing this contention. The Indian Government contends that the practice of sexing embryos violates basic constitutional values and principles. The Court has been preoccupied with the compliance of state governments over the last eight months and has so far not made pronouncements on this matter; however, the Indian Council of Medical Research and some medical associations have deemed sex selection for social reasons to be unethical.

Influential sections of the women's movement have felt since the 1980s that enacting laws would not contribute to improving women's well being. I believe that laws and the judiciary have an important role, particularly in the present context, since the executive is unwilling to take decisions which will affect powerful groups like the doctors. Observers have noted increasing action in the High Courts and the Supreme Court in health matters. For instance, over the last few months, judges have banned cigarette smoking in public places, passed orders on control of traffic pollution in Delhi, and removed the President of the Medical Council of India for subverting the Council to suit his own purposes. The intervention of the Supreme Court in attempting to get state governments implement the PNDT Law has raised widespread awareness of the criminality of the practice and also put guilty medical professionals on the defensive.

General Electric (GE), one of the world's biggest companies, which produces medical technology in India with WIPRO, has captured the largest market share of ultrasound scanners within a few years of starting manufacture. Cheap credit provided to buyers by GE Capital has assisted in achieving this domination. Examination of the list of over 5000 Indian buyers from GE–WIPRO, supplied following the Court order, revealed a disproportionate number of machines in North West India, the region with the lowest child sex ratio. It is reported that the Company has also sold machines to quacks. It seems GE has violated the assurance given by its then CEO Jack Welch, in 1993, that their machines would not be used for sex determination, when they first decided to come to India. The present marketing strategy of GE–WIPRO to target smaller towns is a matter of concern. Once a private practitioner in a small town buys a machine then there is great pressure on other doctors to buy. Multiple machines where there is little demand for legitimate prenatal care increases competition, reduces scan rates and motivates abuses like fetal sex determination so that clinics can recover their investment. In many parts of India, I have come across vigorous and open promotion of sex determination by clinic owners and medical professionals. At the global level, it is imperative that those concerned with human rights expose the transnational corporations involved in marketing ultrasound machines for these purposes. Sadly, the Indian business media is not gender-sensitive and has only glorified companies like GE–WIPRO for manufacturing sophisticated medical instruments for export. Yet in the domestic market, sale of enough ultrasound scanners may necessitate importing of women for marriage and unpaid and cheap labour in the coming decades.

Indian patriarchy is fierce. Coupled with the fact that there is little show of medical ethics in the profession makes the challenge of reducing sex selective abortion a formidable one. The misuse of modern reproductive technology in India has facilitated methods of sex selection from the earliest stage of human development, e.g. before conception by enrichment of the male-producing sperm and at the embryo stage by selection of male embryos for implantation [2].

Because of the extensive coverage given to sex selective abortion in the media, it was taken for granted that Indian media barons were in tune with public concern on this issue. The fact that influential media have been involved in the promotion and legitimation of these practices for commercial gain is condemnable. In November 2001 an American company, Gen-Select, repeatedly advertised a pre-conception sex selection kit in the Times, with a toll free number. The Times later defended this advertisement editorially by asserting that Indian women must be given freedom of choice and how can the Times abridge an individual's right to choose the sex of her child before conception [3]. On 5 February 2002, the most watched soap opera in the country, KSBKBT, aired on Star TV, had a scene where a doctor announced to a pregnant woman that she was carrying a boy, following which there was a celebration that it was a boy. Tragically, the same excuses have been used for over two decades for eliminating girls. Only the technologies have become more sophisticated and the acts of discrimination earlier in the reproductive cycle.