Academic journal article The George Washington International Law Review

"It's (Still) a Boy. . .": Making the Pre-Natal Diagnostic Techniques Act an Effective Weapon in India's Struggle to Stamp out Female Feticide

Academic journal article The George Washington International Law Review

"It's (Still) a Boy. . .": Making the Pre-Natal Diagnostic Techniques Act an Effective Weapon in India's Struggle to Stamp out Female Feticide

Article excerpt

I. INTRODUCTION

"AgIe Janam Mohe Bitiya Na Dije, Narak Dije Chahe Dar ..." goes the chilling refrain of a folk song from Uttar Pradesh, a northern state in India.1 The translation means "Next birth don't give me a daughter, Give me Hell instead."2 For centuries, India's societal, cultural, religious, and financial pressures have dramatically favored the birth of males over females. As a result, India is among the nations that lead the world in female infanticide and feticide, the systematic extermination of female babies and fetuses, respectively.3 In recent years this heinous act has been carried out with the aid of numerous pre-natal sex determination technologies.

In the late 1980s and early 1990s, lengthy campaigns were spearheaded against sex-determination in India, and activists demanded that the government offer a legislative solution. In response, the Indian central government enacted the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act ("Act") in 1994.4 The Act prohibits sex-determination after conception through pre-natal diagnostic techniques5 such as ultrasonography and amniocentesis.6

The Act has proved largely ineffectuaPand critics point out a loophole in the Act, which leaves open the legality of newly developing sex-determination technologies.8 Indeed, the Act fails to address pre-conception sex-selection. Many Indian fertility clinics now skirt the law by offering a controversial procedure known as XY separation.9 The procedure takes advantage of breakthroughs in technology that permit the separation of X and Y chromosomebearing sperm, and then use the Y-chromosome-bearing sperm to fertilize an egg, thereby ensuring the conception of a male embryo.10 In effect, sex selection before conception falls into a legal gray area.11

In May 2001 the Indian Supreme Court, ruling on a writ petition, admonished the central and state governments for non-implementation of the Act, and suggested that it be amended to keep pace with technology.12 As of this writing, the Indian government is considering amending the Act to more specifically address loop-holes and laxity, including a proposed ban on the XY separation procedure.13

The purpose of this Note is threefold: first, it will critically examine professed weaknesses in the Act and analyze why they continue to frustrate the Act's effectiveness; second, it will suggest several general recommendations and remedial measures that the Indian government should take in order to make the Act an effective instrument;14and, finally, the Note will address the issue of whether the Act should be amended to include pre-conception sex selection technologies.

II. DISCUSSION

A. The Problem: Female Feticide

1. Historical Roots and India's Societal Climate

According to many cultural historians, Indian society has permitted the systematic extermination of female babies since time immemorial. India has traditionally been a patriarchal society, a concept embedded in many of its historical, cultural practices.15 Property rights were passed down hereditarily from father to son.16 The marriage of a daughter often involved the paying of dowry to a bridegroom's family.17 A married woman was considered part of her in-laws' family and no longer part of her own.18 A son was expected to care for his parents in their old age, carry on the family name and caste, and to bring in dowry when he married.19 Because most of the common or indigenous Indian religious traditions, such as Hinduism, Jainism, Sikhism, and Islam, upheld this patriarchy, these religions often reinforced a strong preference for sons.20

Up until recently, Indian law, grounded largely in Hindu and Islamic principles, seemed to reflect the traditional bias against daughters.21 For instance, Indian laws governing inheritance rights often served to reinforce the advantaged status for males. Islamic rules of succession held that a female heir take half the share of a male heir. …

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