Will mandatory sex-determination prevent sex-selective abortions or endanger pregnant women?

Twenty-five legislators in Maharashtra want pregnant women to undergo mandatory sex-determination tests in order to prevent sex-selective abortions. The legislators are a part of the Public Accounts Committee that was studying the problem of sex-selective abortions in Maharashtra. They are not the first to offer what activists call a “bizarre” solution. In February last year, Women and Child Development minister Maneka Gandhi suggested mandatory sex-determination tests and tracking all women carrying female foetuses.

The committee released their recommendations following the discovery of a sex-selective abortion racket operating in Karnataka and Maharashtra.

Congress MLA Gopaldas Agarwal, who is the head of the Maharashtra panel, said that a complex problem needs a “revolutionary” solution. “The panel wants to end female foeticide, and by tracking women pregnant with female foetuses, we can ensure they do not abort them,” said Agarwal.

Agarwal and the panel contend that the Pre-Conception and Pre-Natal Diagnostic Techniques or PC-PNDT Act, which makes sex-determination illegal, has failed. “We have penalised doctors under the Act, but the sex-ratio is not improving,” said Agarwal. “We need to make sure that families who do not want girls to be born are scared of the law. Right now the doctor is a criminal for revealing the gender of the foetus. If we keep on accusing doctors, they will stop doing sonography.”

Social activists working for gender equality and against practices like sex-selective abortions believe that the government’s decision is radical but can compromise pregnant women’s care and their right to legal abortions. In India, abortion is legal up to 20 weeks of gestation if performed in accordance to the provisions laid in the Medical Termination of Pregnancy Act.

Bad law or poor implementation?

Agarwal cited the falling child sex ratio as seen in the census data as proof of the PC-PNDT Act’s failure. India’s child sex ratio dropped from 927 in 2001 census to 919 in 2011 census.

However, activists counter the argument saying that said that the panel has failed to account for poor implementation of a robust law.

Data from the civil registration system collected by state governments, which is different from the census data, shows improvement in sex ratios at birth in states like Haryana. In March, state government officials said 950 girls were born for every 1,000 boys. In 2012, Haryana recorded a sex ratio at birth of only 832, according to the civil registration system which records all births in a state. Even the National Family Health survey shows that Haryana’s sex ratio at birth has improved from 762 in 2005-’06 to 836 in 2015-’16.

“It is not the law but the unwillingness of the authorities to act, which needs to be tracked,” said Varsha Deshpande, member of the national inspection and monitoring committee of the PC-PNDT Act.

At present, Maharashtra’s health department is finding it difficult to provide ultrasound services to all pregnant women, said one health official who feels that monitoring all pregnant women in the state will be a next-to-impossible task. “To do this, we will need additional resources in the form of machines and manpower,” he said. “But, if the proposal comes through, we will have to think of a way to do it.”

Sunita Sheel, anthropologist and working editor of the Indian Journal of Medical Ethics, said that the government’s priority appears to be misplaced. She explained that instead of providing basic healthcare to pregnant women, the government is planning to use its resources to monitor them. “Where would you spend the limited resources?” she asked.

Like Sheel, Deshpande worries that legislators think that it would be easier to track lakhs of pregnant women than to monitor a few thousand doctors. “If doctors don’t provide the service of sex-determination, no one will demand it,” she said.

Shifting responsibility

Under the PC-PNDT Act, it is “presumed unless the contrary is proved that the pregnant woman was compelled by her husband or any other relative, as the case may be, to undergo pre-natal diagnostic technique.” The law does not hold the woman as an accused unless there is evidence to prove otherwise. The burden of proof in not on the woman undergoing sex-determination to prove her innocence.

But the Indian Medical Association has welcomed the Maharashtra panel’s proposal on the grounds that pregnant women should be held accountable. “It is the pregnant woman and her family who is asking for sex-determination,” said Dr KK Agarwal, president of the association. “The government’s focus should shift to catching families who abort girls and not doctors. The time has come that pregnant women undergoing a sex-selective abortion should be penalised. If she doesn’t go abort female foetus, there will be no gender imbalance.”

It is precisely this outlook that worries activists who say women run the risk of being treated badly if their families know that they are carrying female foetuses. “No public health intervention should be implemented if it has any potential to harm the community in any way,” said Sabu George, an activist from Delhi and the member of the national inspection and monitoring committee of the PC-PNDT Act.

Anubha Rastogi, an advocate who focuses on sexual and reproductive rights, said the PC-PNDT Act is being unjustifiably linked to the Medical Termination of Pregnancy Act, which regulates the procedure of abortion. “The PC-PNDT Act is clear and operates in the realm of pregnant women,” she explained. “The Act is clear. It is illegal to reveal the sex of the foetus. The problem is that the doctor community refuses to be regulated.”

She acknowledged, however, that over-zealous government authorities have levied excessive punishments on some doctors for minor violations of the law, which have led to doctors striking demanding that the Act be repealed.

George also questioned the motives behind the proposed legislation on mandatory sex-determination. “Doctors are extremely organised and powerful,” he said. “Is this an attempt to increase the overall returns of the ultrasound centres?”

Further stigmatising legal abortion

About 100 activists have demanded that the recommendations proposed by the Maharashtra panel should be rejected. They fear that the tracking of pregnant women will not only breach their privacy but also make it even more difficult to get legal abortions.

Already, seeking medical terminations of pregnancies between 12 weeks, after which the sex of the foetus can be detected, and 20 weeks is challenging, as doctors fear that authorities will assume that they are performing sex-selective abortions.

“There is a high possibility of misuse and abuse of the surveillance,” said Sheel, who points out that such monitoring might push women away from the regulated health system and force them to go to unregistered doctors for abortions, compromising their health and safety.

When asked whether the panel had considered the aspect of access to abortion, Agarwal said, “No one is snatching the woman’s right to abort. We want to curb female foeticide, and that we can achieve by tracking women pregnant with girls. A woman can do abortion if her life is in danger.”

Making sex-determination mandatory will need an amendment to the PC-PNDT Act in Parliament. “The state can only recommend,” said Deshpande. But Deshpande and other activists worry that, given the support from Women and Child Development minister Gandhi, the proposal may actually gain traction.