Maneka Gandhi should lay off the law banning sex determination tests
Maneka Gandhi, a senior minister in the Narendra Modi government has shown how completely at sea she is from her remit for women and child development by suggesting that the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act be abolished and that all pregnant women be subjected to a sex determination test on their foetus, the results of which would be disclosed and the expectant mothers themselves subjected to government tracking and monitoring.
If implemented, the minister’s proposal would violate the right to privacy of pregnant women as well as their right to have an abortion. It would move towards criminalising the woman and absolving the medical industry of any responsibility for the skewed sex ratio in the country.
By allowing the sex of the foetus to be revealed in a society where there is an absolute ‘desire’ for having sons and a widespread aversion to daughters, such a policy would open the flood gates for more sex selective abortions, strengthen the female foeticide industry and further ensure the drop in sex ratios.
Making sex determination compulsory and subjecting all pregnancies to monitoring would violate Article 19 of the Constitution from where the right to privacy is derived and also from where I get my right to hold a view on whether I want to be pregnant or not or continue with a pregnancy or not. The Supreme Court in Nira Mathur Vs LIC India (1992) has held that the right to keep a pregnancy private is a matter of the right to privacy.
Similarly, it also violates the right to have a safe abortion enshrined under the Medical Termination of Pregnancy law, where the only legal issue for an adult, mentally sound woman is whether she has been pregnant for less than 12 weeks. If Maneka Gandhi has her way, it is more than likely that the pregnancy police/monitor may not allow a woman to have an abortion, which may be legally her entitlement. It will end up criminalising the woman as she will be targeted for seeking an abortion, apart from making her seek unsafe abortion services.
It is important to emphasise that under the PCPNDT Act, it is sex selective abortion that is unlawful. The crime begins with doctors violating the law by revealing the sex of the foetus and then carrying out a sex selective abortion. With her proposal, the minister is in a way decriminalising a section of the corporate medical industry which has facilitated the elimination of foetuses, shifting the burden on the woman.
Suppose Maneka Gandhi manages to ensure the installation of an ultra sound machine at every PHC/ CHC, even in those where basic facilities or labs are not available and the medical community agreed that every pregnancy needed to be subjected to an ultrasound test for foetal wellbeing, which is the cover for detecting the sex of the foetus. Suppose too that we were to accept the view of the minister for a moment that the sex of every child should be disclosed to the mother. Then, we would like to ask her how the government would monitor the approximately 2.5 crore pregnancies – which is the average annual number of children born in the country? The same minister has failed to show in her 21 months in office how to use better monitoring to combat malnutrition in children, which was called a national shame by an earlier prime minister, or promote breast feeding, which is so essential for the nourishment of a child.
The idea of policing pregnancies will only further take away women’s freedom and the control over their bodies, and end up absolving doctors and hospital establishments, leading to criminalising women, and further offsetting the sex ratio in an already imbalanced situation.
It is imperative for the government to have an informed debate on the issue before it lets a minister derail the effort of 20 years of implementation of the PCPNDT Act.
Kavita Srivastava is National Secretary, Peoples Union for Civil Liberties