Women & Women Issues

‘Grey areas’ in law banning prenatal sex determination need fixing, says HC

Context: The Delhi High Court has remarked that certain aspects of the Pre­Conception & Pre­Natal Diagnostic Techniques (Prohibition of Sex Selection) (PC & PNDT) Act need reconsideration for effective implementation of the Act. Court also remarked that “the low rate of conviction under the PC & PNDT Act poses a significant challenge, as it is incredibly arduous to prohibit pre­natal diagnosis of sex”.

The problem of declining child sex ratio

  • Continuous decline in child sex ratio since 1961 Census is a matter of concern for the country. Beginning from 976 in 1961 Census, it declined to 927 in 2001. As per Census 2011 the Child Sex Ratio (0-6 years) has dipped further to 919 against 927 girls per thousand boys recorded in 2001 Census.

Important provisions of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 

  • The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act was enacted on September 20, 1994 and the Act was further amended in 2003. The Act provides for the prohibition of sex selection ,before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto.

The Act is implemented through the following implementing bodies:

  1. Central Supervisory Board 
  2. State Supervisory Boards and Union Territory Supervisory Boards 
  3. Appropriate Authority for the whole or a part of the State or Union Territory 
  4. State Advisory Committee and Union Territory Advisory Committee 
  5. Advisory Committees for designated areas (part of the State) attached to each Appropriate Authority. 
  6. Appropriate Authorities at the District and Sub-District levels

Registration 

  • Appropriate Authority of the district is responsible for registration of ultrasound diagnostic facilities.
  • Mandatory Displays at ultrasound centre

(1) Pre-conception and Pre-natal Diagnostic Techniques (PC and PNDT) Certificate: It is mandatory for every clinic or facility or hospital etc. registered under the Pre-conception and Pre-natal Diagnostic Techniques Act to display the certificate of registration at a conspicuous place at such Centre, Laboratory or Clinic. 

(2) Signage, board or banner in English & local language indicating that foetal sex is not disclosed at the concerned facility. 

(3) Copy of the Pre-conception and Pre-natal Diagnostic Techniques Act must be available in every ultrasound centre

Renewal of registration 

(1) Every certificate of registration is valid for a period of 5 years 

(2) Renewal of registration to be done 30 days before the date of expiry of the certificate of registration. 

Mandatory maintenance of records: Register showing in serial order: 

(1) Names and addresses of men or women subjected to pre-natal diagnostic procedure or test

(2) Names of their spouses or fathers 

(3) Date on which they first reported for such counselling, procedure or test. 

(4) A monthly report should be submitted to the Appropriate Authority regularly, before the 5th of every month. A copy of same monthly reports with the signature of the Appropriate Authority acknowledging receipt must be preserved.

Preservation of the following duly completed forms 

  1. Form F 
  2. Referral Slips of Doctors 
  3. Forms of consent 
  4. Sonographic plates or slides 9. 

Record storage  

  • All above records should be preserved for 2 years. 

Powers of Appropriate Authority 

(1) Appropriate Authority can enter freely into any clinic or facility for search and seizure. 

(2) Examine and inspect of registers, records including consent forms, referral slips, Forms, sonographic plates or slides and equipment like ultrasonography machines. 

(3) To ensure presence of at least two independent witnesses of the same locality or different locality during the search.

Concerns 

  • Non-compliance with the legal requirements for operating the facility is rampant in many parts of India. 
  • The primary reason for non-conviction is due to the inadequate legal expertise provided by the Public Prosecutor. 
  • As per the 10th Common Review Mission Report of the National Health Mission , there are low conviction rates under this Act, due to  lack of witnesses, insufficient evidence, and out-of-court settlements.
  • The ground-level people are more focused on clerical errors than working on the bigger picture of reducing female foeticide. This has led to many instances of harassment of radiologists and has also provided additional avenue for corruption.
  • Future technologies being developed for sex-determination, like testing of craniate cells in maternal blood, subtle techniques for sex-pre-selection, like electrolysis, Ericsson’s methodology, etc are presently not covered under the law.

Suggestions 

  • Implementation of Act should be strengthened through regular survey and inspection.
  • Renewal of the registration  should be done on the basis of track record of the compliance to the record keeping rules.
  • Regular meetings among various implementation bodies of state should be taken up.
  • Monitoring and evaluation process should be made robust by inclusion of PRI’s , NGO’s and community workers.
  • Capacity building various stakeholders like prosecutors, District appropriate authorities, community workers like ASHA’s etc, through training and media workshop should be undertaken.

Conclusion

The sex determination techniques and female infanticide is an inhumane act that needs to be curtailed by effective implementation of the PC PNDT Act. Protection of women and girl child should be priorities through effective implementation of public policies and regulations. There needs to be proper vigilance by the state and civil society to look after the declining sex ratio of the female population in the country.  

Surrogacy

Context: The Supreme Court on Tuesday questioned whether a single, unmarried woman having a child through surrogacy is an “accepted norm” in Indian society or not.

The act defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.

Surrogacy can be classified into altruistic and commercial. 

  • True to the meaning of the word, altruistic surrogacy entails no financial compensation for the surrogate. 
  • In contrast, commercial surrogacy involves paying the surrogate for bearing the child, implying a profit, 
  • while a third type i.e. compensated surrogacy simply involves covering the incurred expenses and loss of wages.

Surrogacy (Regulation) Act, 2021

  • It defines the surrogacy as we have discussed earlier.
  • The Act prohibits commercial surrogacy, but allows altruistic surrogacy.
  • It provides for Eligibility criteria for intending couples:
  • Further, this act also specifies the eligibility criteria:
    • Surrogacy is permitted only for those intending married Indian couples who suffer from proven infertility.
    • An Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy.
  • Further it lays eligibility criteria  for the surrogate mother also which specifies that she must be close relative of the intending couple, she must be a surrogate only once in her lifetime; and the surrogate mother cannot provide her own gametes for surrogacy.

Concerns

  • Exclusionary: The provisions deny this opportunity to LGBTQ+ persons, live-in couples, unmarried women and single parents.
  • Altruistic surrogacy is paternalistic -  It expects a woman to go through the physical and emotional tolls of surrogacy free of cost and only out of ‘compassion’. Thus reinforcing age old patriarchal norm of no economic value to the women’s work.
  • It doesn’t respect the bodily autonomy of women - By shifting from right based to need based approach it snatches away the right of a women to decide upon her reproductive choices. Further it is and violative of her fundamental rights under Articles 14 (right to equality) and 21 (right to life) of the Constitution.
  • Impetus to Black marketing- Blanket ban on commercial surrogacy may lead to creation of unregulated, exploitative underground/black markets.
  • Does not defines close relative - The act didn’t define ‘close relative’, which is a condition to be fulfilled by the surrogate mother. Thus scope for confusion and exploitation of loop holes is always there.
  • Reproductive liberty to the couples - Several restriction in form of eligibility criteria etc restricts the surrogacy option to intending couple which is a denial of reproductive liberty to them.
  • No power to make decision on abortion - Intending couple don’t have final say in the consent to abort a surrogate child, even if the child being born out of a surrogacy arrangement is at the risk of physical or mental abnormalities.
  • Identity and emotional aspect - Several times couples do not want to reveal their plans of oping for surrogacy, now putting the condition of close relative to be a surrogate clearly ignores this aspect and restricts the choices. Further, familial bonds and interaction may involve high emotional complications between surrogate mother and intended parents.

Way ahead

It is essential that, in the process of addressing the exploitation of surrogate mothers, the act should be revised to establish a comprehensive and inclusive procedure. This revised procedure should aim to make surrogacy readily accessible to the deserving citizens of India.

Female labour force participation

Studies shows that Female labour force participation rate (FLFPR) exhibits a U-shape during the process of economic development. The downward trend in ‘U’ was due to rise in Household incomes because of expansion of markets and shift from farm activities to factory work.

However, when educational level rises and as value of women’s time in the market increases further, they move back into the paid labour force. 

image 42

However, despite experiencing structural changes such as decline in fertility rates and expansion of women’s education, Indian FLFPR has been stagnated. While NSSO found that 25.9% of all women worked in 1999-2000, female labour force participation rate in 2020-21, according to PLFS report, is only 25.1%.

The female labour force participation rate of Muslim women in the country is 15%, as compared to 26.1% for Hindu women. Over the past three years, Muslim women have had the lowest LFP rate amongst all religious groups in the country.

Reasons for low female labour force participation

  • Rising Household Incomes: Rising incomes allow women to escape harsh labour on farms and construction sites and focus on their families.
  • Agrarian crisis: Declining farm sizes, rising mechanisation and agrarian crisis are pushing women out of agricultural workforce.
  • Lack of Rural connectivity: Lack of transport network to villages may prevent women from taking non-agricultural work in Neighbouring towns. Lack of transport services effect women more than men.
  • Increased Education levels of women: Growing enrolment of women in Higher education and lack of adequate well paid formal jobs in the market.
  • Nuclear families: Growing trend of nuclear families keeping childcare left to women with no support from elders of the family.
  • MSME crisis: MSME sector offers significant employment opportunities to women. But rigid labour laws and other protective policies of govt hindered the growth of MSMEs.
  • Patriarchal norms: Patriarchal norms of society determines Domestic division of labour. Women are expected to take care of domestic chores while men go out for work.
  • Childcare: Most education drop out of labour force due to childbirth and care.
  • Other factors: Glass ceiling at workplace which limits work opportunities for females at senior levels, sexual harassment at workplaces inducing fear among females. Lack of access to marketable skills in an economy which is driven by service class.

Measures to be taken

  • Promote gender-responsive employment policies particularly through macroeconomic, sectoral and labour market policies that address effectively the gender-specific effects of the COVID- 19 crisis and support the creation of full and productive employment for women.
  • Promote appropriate public and private investment in the care sector, which has the strong potential not only to expand decent work opportunities – especially for women – but also strengthen the resilience of economies and societies and enable workers with family responsibilities to engage in employment.
  • Closing the gender skills gap by gender-responsive upskilling and reskilling policies that enable women to take full advantage of the decent job opportunities on offer.

Abortion Laws in India

Context: A District Judge in Texas, the US has suspended the approval of the abortion pill mifepristone, which will essentially make sales of the pill illegal in the US.

About Mifepristone

  • Mifepristone is a medication that is commonly used for medical abortion. It is a synthetic steroid compound that blocks the action of the hormone progesterone in the body.
    • Progesterone is necessary for maintaining the lining of the uterus during pregnancy, so by blocking progesterone, mifepristone can effectively terminate an early pregnancy.
  • Mifepristone is typically used in combination with another medication called misoprostol. This is taken after mifepristone and helps to expel the pregnancy from the uterus by inducing contractions. 
  • Both mifepristone and misoprostol are taken orally as pills and are typically used up to 10 weeks of pregnancy. Mifepristone’s popularity lies in the fact that:
    • It is a non-surgical option for abortion, considered to be the safest option for aborting early-term pregnancies.
    • Since it is a pill, it allows individuals to have more privacy and control over the abortion process. 

Roe v. Wade

  • In 1973, the U.S. Supreme Court’s ruling in Roe v. Wade recognized that the decision of whether to continue or end a pregnancy belongs to the individual, not the government. 

Abortion Laws in India

  • Under Indian Penal Code, voluntarily causing a woman with a child to miscarry is an offence attracting a jail term of up to three years or fine or both unless it was done in good faith where the purpose was to save the life of the pregnant woman. Since this provision was highly restricting the reproductive rights of women, a law was passed to give exemptions from the above criminal provision. 

Medical Termination of Pregnancy, Act (1971)

This act allowed voluntary termination of pregnancy under the following conditions:

  • Continuation of the pregnancy would involve a risk to the life of the pregnant woman or cause grave injury to her physical or mental health.
  • Substantial risk that the child if born, would be seriously handicapped due to physical or mental abnormalities.
  • Pregnancy is caused by rape.
  • Pregnancy is due to the failure of contraceptives in a married woman.
  • Maximum time limit to terminate the pregnancy – 20 weeks though the law granted abortion rights to some extent, there were some issues with it and there was a need for an amendment. 

Need for amendment of MTP Act, 1971 

  • Unsafe abortions: Rigid conditions and time-limit for termination of pregnancy legally forced many to resort to illegal unsafe abortions. E.g., According to a study published in Lancet Global Health, 15.6 million abortions occurred in India in 2015 of which 78% of these were outside health facilities.
  • Time delay at judiciary: Those who wish to terminate pregnancy beyond the legal time limit had to seek the court’s permission. This often leads to judiciary delay and prevents women from terminating their pregnancy at the right time.
  • Technological advancements: Most of the foetal anomalies that are detected late and the MTP Act, of 1971, had not kept pace with the changing times, needs and advancements in medical science. With the advancement of medical technology, there is a scope to increase the upper limit for terminating pregnancies, especially for vulnerable women, and in cases of severe foetal abnormality.
  • Discriminatory to unmarried women: Lack of choice for abortions to unmarried women due to failure of contraception.

Keeping in view of these challenges, an amendment was made to the Act in 2021. 

MTP Amendment Act, 2021

  • Increased legal time limit: Increases the time for abortion from 12 weeks to 20 weeks with the advice of one registered medical practitioner (RMP) and allows abortion beyond 20 weeks for rape survivors and beyond 24 weeks in case of substantial foetal abnormalities thereby preventing illegal abortions beyond 20 weeks through quacks involving risk to maternal health
  • Equal rights to unmarried women: Replaces “any married woman” with “any woman” undergoing termination of pregnancies resulting from contraception failures, thus destigmatising pregnancies outside marriage and accepting modern-day relationships.
  • Reduces delay by setting up of medical boards: The amendment sets up state-level Medical Boards to decide if a pregnancy may be terminated after 24 weeks in cases of substantial foetal abnormalities.
  • Confidentiality: Medical practitioners are barred from revealing the identity of women who wants to terminate pregnancies thus ensuring their right to Privacy. However, there is still a long way to ensure full reproductive rights for pregnant women.

Limitations of Medical Termination of Pregnancy (Amendment) Act, 2021

  • Section 19 of the POCSO Act requires any person aware of a minor engaging in sex to report the matter to the local police even if it was a consensual act as the law pegs the age of consent at 18 years. Often, they are denied safe and legal termination of pregnancy due to fear of police harassment.
  • It does not cover victims of marital rape under the category of rape survivors thereby limiting the right of women to terminate pregnancies.
  • There is no change in the process for terminating pregnancies due to rape that have crossed the 24-week limit and the only recourse left is to get permission from SC/HC through a writ petition.
  • Lack of government healthcare clinics or medical professionals in remote areas leads to the prevalence of illegal abortion facilities thereby defeating the purpose of the MTP Act.

See also: Daily Current Affairs by Rau's IAS

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