The Saga of India’s surrogacy regulation

Divine labours, devalued work:

Sneha Banerjee &Prabha Kotiswaran  Published online: 08 Nov 2020

ABSTRACT

This article offers a feminist critique of the Surrogacy (Regulation) Bill, 2019. Fifteen years since the first proposed regulation of assisted reproductive technologies and surrogacy, the 2019 Bill leaves much to be desired. It reflects a limited understanding of the complexities of surrogacy, is discriminatory in its approach, is plagued by lack of clarity, is unrealistic and most importantly, does not include adequate safeguards for the surrogate. Women’s reproductive labour in performing surrogacy is valorized but not compensated. Even though the Bill may well accept some recommendations of the Rajya Sabha select Committee, its failure to address issues that we highlight will mean that if passed, it will be challenged in the courts on constitutional grounds. This will generate uncertainty for years, for many infertile couples and individuals who look to the law for streamlined regulation, defeating its main purpose in facilitating a novel mode of reproduction.

Introduction

Surrogacy is a novel and arguably desirable opportunity for family formation for many individuals and couples, while simultaneously being a maelstrom for a range of ethical issues implicating numerous legal fields. In the past decade or so, these complexities have become exacerbated through reproductive tourism enabled by globalization. Governments have globally engaged in a form of “regulatory arbitrage”, whereby the prohibition of surrogacy (commercial or altruistic) in certain countries leads to more permissive legal regimes elsewhere. For feminists in particular, surrogacy presents a formidable challenge. On the one hand, it queers compulsory heteronormativity and the heteropatriarchal family-form while on the other, generating exploitative arrangements for surrogates in the global South as reproductive markets present favourable economic terms and bargaining power for intending parents from the global North. Correspondingly, the law has become a site for intense political, social and economic contestation over the status of women’s reproductive labour. ¹ In this article, we offer one feminist perspective on the regulation of surrogacy by focusing on a critique of the Surrogacy (Regulation) Bill 2019 (hereinafter the Bill) which was passed by the Lok Sabha in August 2019 and which is due to be presented before the Rajya Sabha in the next session of Parliament. We start by offering our assessment of the feminist normative landscape on surrogacy and then chronicle India’s efforts to regulate surrogacy. We then undertake a detailed analysis of the Bill along four axes, namely, locating surrogacy in the larger milieu of assisted reproductive technologies (ARTs) and examining eligibility criteria for commissioning surrogacy, the issue of “compensation” for surrogates and finally, the criminalization of surrogacy in the Bill, while paying particular attention to whether the Bill in its current form will pass constitutional muster. We conclude by reflecting on what India can learn from international trends on surrogacy law and policy. Needless to say, the social realities of surrogacy invite consideration of numerous other legal issues which are beyond the scope of this article. However, we hope that our snapshot view of the Bill as it stands today will help inform debates as the Bill enters the final stages of deliberations by Parliament, making possible the culmination of a regulatory journey that began nearly fifteen years ago.

Feminist theorizing on surrogacy

Surrogacy has long been a fraught domain for feminists. Alison Bailey notes that Western feminists theorized surrogacy in two phases: an intensely normative phase in the 1980s when they offered liberal, Marxist and radical feminist analyses of commercial surrogacy and since the mid-1990s, through a discernible biomedical ethnographic turn to understand how surrogacy work is lived, embodied and negotiated, thereby heralding a move from moral certainty to moral ambivalence. ² Indian feminists similarly offer both normative and ethnographic theorizing on surrogacy, even if there is no temporal distinction between these enterprises. Liberal feminists support commercial surrogacy with adequate safeguards ³ while radical feminists view reproductive tourism as being at the crossroads of reproductive, sexual and labour trafficking ⁴ with commercial surrogacy being an exploitative trade in reproductive body parts. ⁵ Marxist feminists similarly view commercial surrogacy as a form of reproductive trafficking. ⁶ Kumkum Sangari maps how commercial surrogacy amounts to the appropriation of women’s reproductive labour by ‘biocapital’ ⁷ and is organized in the form of a post-Fordist manufacturing model characterized by flexibility where the burden of uncertainty and repeat failure is on the women ⁸ whose voices are lost through the triple discourse of “remediable poverty, calibrated entrepreneurialism and familial altruism”. ⁹

Most Indian feminists adopt a materialist feminist position wherein surrogates are understood as subject to the twin forces of capitalism and patriarchy. Amongst these are several feminist ethnographers who view surrogates as performing highly gendered, exceptionally corporeal, and stigmatized ¹⁰ reproductive labour ¹¹ against the backdrop of structural inequalities, an aggressively anti-natalist state, a larger project of neo-eugenics ¹² and “stratified reproduction” wherein a race-based reproductive hierarchy is sustained by the international division of labour and intentional state policies. These feminists are pragmatic towards regulation and oppose bans on commercial surrogacy, informed by a view that the market will be driven underground if surrogacy is banned, in turn harming surrogates.

Our own position mirrors this materialist feminist approach. In the context of gestational surrogacy (where the surrogate cannot use her oocytes) provisioned through a highly medicalized ART industry, the work of surrogates is technologically-aided, affective reproductive labour. We recognize that women undertake surrogacy under highly unequal conditions of capitalist patriarchy, but do not find it exceptional in relation to a range of other forms of gendered reproductive labour, including domestic work, erotic dancing, sex work or unpaid care and domestic work done by housewives, such that it warrants exceptional treatment by the state. We acknowledge power differentials, constrained choices and exploitative relations shaped by a globalized context and believe that women’s agency in wanting to become surrogates for a fee cannot be dismissed as false consciousness. Finally, we are opposed to prohibitionism and blanket bans, which are oblivious to the lived realities of surrogates and instead focus on how law can ensure economic justice for them.

Regulatory landscape of surrogacy in India

India is probably one of the few countries in the world to have adopted every possible regulatory approach to surrogacy in the space of fifteen years. An early attempt was made by the Indian Council of Medical Research (ICMR) in 2005 through the National Guidelines for Accreditation, Supervision & Regulation of Assisted Reproductive Technology Clinics in India. Thereafter, separate chapters on surrogacy were included in the various versions of the Draft Assisted Reproductive Technologies (Regulation) Bill (hereinafter the ART Bill) proposed between 2008 and 2013. These laws were liberal in their regulatory approach towards ARTs and surrogacy. Between 2012 and 2016, however, the proposed laws became increasingly restrictive. The proposals went from being highly favourable to fertility clinics (and less so to surrogates) to severely restricting actors who could avail of ART on the basis of marital status, sexual orientation and nationality/citizenship with correspondingly increasing levels of protection to surrogates. Between 2012 and 2015, administrative orders issued by the Ministry of Home Affairs regulated the visa requirements for foreign intending couples who sought surrogacy services in India, introducing a new visa category before moving towards a prohibition ¹³ for such couples in 2015 in response to a public interest litigation ¹⁴ filed to prohibit commercial surrogacy.

In 2016, the government decided to address the regulation of ARTs and surrogacy through separate legislations and introduced the Surrogacy (Regulation) Bill, 2016 in the Lok Sabha on 21 November 2016. A draft Assisted Reproductive Technology (Regulation) Bill, 2020 was introduced in Parliament on 14 September 2020 (2020 ART Bill). ¹⁵ The 2016 Bill which sought to prohibit commercial surrogacy and permit only altruistic surrogacy under limited conditions was meanwhile referred to a Department-related Parliamentary Standing Committee (PSC) on Health and Family Welfare which submitted the 102^nd report in August 2017. Based on extensive consultations with numerous stakeholders (governmental and otherwise), the Committee recommended the reversal of almost every key feature of the 2016 Bill. It proposed a “compensated” model for surrogacy over an altruistic form and stated that surrogates did not have to be close relatives of the intending parents. It also liberalized the eligibility criteria for intending parents by extending the surrogacy option to live-in couples, divorced women, widows, non-resident Indians (“NRIs”), Persons of Indian Origin (“PIOs”) and Overseas Citizens of India (“OCIs”) and required only one year of proven infertility before availing of surrogacy. However, the 2016 Bill lapsed with the dissolution of the 16^th Lok Sabha in 2019. The 2019 version of the Bill was re-introduced in the Lok Sabha on 15 July 2019 and was passed on 5 August 2019 (Bill No. 156-C of 2019) without incorporating any recommendations of the PSC report. It was then introduced and debated in the Rajya Sabha on 19 and 20 November 2019.

During the debates in the Rajya Sabha on the Bill, numerous MPs spoke eloquently on many of the key issues that the Bill fails to address. To highlight a few examples: who can be an intending parent, particularly referring to marital status and citizenship, ¹⁶ how infertility is defined, ¹⁷ the stigma around infertility in a patriarchal context ¹⁸ and the possibilities of harnessing scientific advancement to address such concerns, ¹⁹ the lack of focus on the rights of children born out of surrogacy, ²⁰ the question of compensation to the surrogate and disregard of the recommendations of the PSC Report in this Bill. ²¹ As Rajya Sabha MPs repeatedly pointed out, consideration of this Bill was woefully incomplete in the absence of the ART Bill. In light of these reservations expressed by several MPs, the Bill was referred to a Select Committee of the Rajya Sabha (RSC) that examined it, undertook field visits around the country and submitted its report on 5 February 2020.

The RSC underscored the importance of passing the ART Bill before the Surrogacy Bill since the medical processes involved in the latter are best regulated through the ART Bill. This report reiterated several recommendations made by the PSC. It emphasized the need to broaden eligibility criteria for who can be a part of surrogacy – permitting PIOs and OCIs, widowed and divorced women to commission a surrogacy and any “willing woman” within the prescribed age limit and meeting other criteria to act as a surrogate without having to be a “close relative.” The RSC noted that surrogacy can be medically indicated rather than having the intending couple prove infertility over an extended period of unprotected coitus. This report however, upheld the Bill’s approach of allowing only altruistic surrogacy thus rejecting both commercial and compensatory surrogacy. It noted that, “both … commercial and compensatory surrogacy is (sic.) fraught with the risk of exploitation and commodifying the noble instinct of motherhood” ²² and in a rhetorical move, asked “whether such a sublime and divine instinct of motherhood could be allowed to be turned into a mechanical paid service of procreation devoid of divine warmth and affection.” ²³ However, it did allow for an expansion of the insurance cover that the surrogate could receive to include medical costs (rather than only cover loss, damage, illness or death as listed in the Bill) and other “prescribed expenses” for a longer duration of 36 months in contrast to the 16 months’ duration envisaged by the Bill. The RSC unlike the PSC did not detail what would comprise “prescribed expenses.”

A feminist critique of the Surrogacy (Regulation) Bill, 2019

Against this backdrop, we offer a critique of the Bill in order to ensure non-discrimination, equality of access to surrogacy and economic justice for surrogates. A broader engagement with the normative questions around law and reproductive technologies is beyond the scope of this article. As the Indian state inches closer towards prohibiting commercial surrogacy, our critique highlights key areas that can, and must be rethought and reworked before being presented to Parliament for reconsideration, especially in view of the two parliamentary committees’ reports. In particular, we interrogate the following aspects: the relationship between surrogacy and ARTs, eligibility criteria for intending parents and surrogates laid down in the Bill, the issue of “compensation” for surrogacy, and the implementation and enforcement provisions of the Bill.

Surrogacy and ARTs

The Bill and the ART Bill are complementary legislations in various ways. Seeking to pass the Bill in the absence of the ART Bill produced confusion as illustrated below – in terms of definitions of key medical procedures and overlaps in their regulation, the absence of regulation of gamete donation, and protection of the rights of children born out of surrogacy. Despite introduction of the 2020 ART Bill, all these issues remain inadequately addressed.

The use of ARTs is central since only gestational surrogacy is permissible under section 4(iii)(b)(I). However, it is a glaring gap that the Bill does not include a definition of the very important term – “Assisted Reproductive Technology.” Section 2(zc) which defines “Surrogacy”, does not mention use of ARTs whereas the definition of “surrogacy procedures” [section 2 (ze)] and “surrogate mother” [section 2 (zf)] include it, demonstrating inconsistency. Similarly, the definition of “commercial surrogacy” in section 2(f) refers to In Vitro Fertilization (IVF), an ART procedure. The definition of “commercial surrogacy” in section 2(f) for instance refers to IVF, an ART procedure, only by implication through the phrase “component procedures”, and not directly. ²⁴ In the absence of the ART Bill, it was unclear as to how the “component procedures” of surrogacy are to be regulated. It would be ideal for the definition of surrogacy to only mention “services of surrogate motherhood” to avoid conflating surrogacy with a vast array of ARTs. Finally, the registration requirements set out in Section 10 for surrogacy clinics need to be aligned with corresponding provisions of the ART Bill especially since all fertility clinics regulated by the ART Bill may not conduct surrogacy but all clinics that conduct surrogacy will be fertility clinics that offer IVF services. In light of such drawbacks in regulating surrogacy in the absence of an ART Bill, the RSC rightly recommended that the ART Bill be introduced prior to this Bill.

Meanwhile, the 2020 ART Bill, as introduced in the Lok Sabha makes it mandatory for all establishments offering ARTs to be registered and lays down informed consent procedures. ²⁵ It provides that the national and state boards under the 2020 ART Bill will be the same as the Surrogacy Boards created under the Bill. The two Bills however create multiple agencies for purposes of registering surrogacy clinics and ART clinics and banks. Thus, the processes needed for implementing the two legislations do not seem to be streamlined. ²⁶

With regard to the eligibility certificate to be obtained by the surrogate, Section 4(iii)(b)(I) ²⁷ specifies that no woman (other than an ever-married woman with a child and between the ages of 25 and 35 years) can be a surrogate mother or donate her egg or oocyte. This provision is poorly drafted. On the face of it, it appears as though a surrogate mother could potentially donate her eggs. However, from subclause (III) ²⁸ we can conclude that the surrogate mother cannot donate her gametes. Similarly, in Section 39 (dealing with a presumption of coercion in case of surrogacy) there is reference to the woman who donates gametes for surrogacy. Since egg donation is highly likely in cases of surrogacy which are medically indicated, it is necessary to have protocols and regulations for the same. If the Bill visualizes the donation of gametes (specifically eggs) and eligibility criteria for such donors, then it must streamline the gamete donation process in this Bill and specify in detail provisions for protection of the egg donor as well, on par with the surrogate, which are currently missing. Otherwise, it appears that the egg donor cannot even expect that her medical expenses and the costs of insurance coverage will be met by the intending couple. Egg donation is more appropriately a subject matter for the ART Bill yet the 2020 ART Bill also does not provide adequate protection for the egg donor allowing only for insurance coverage for medical complications or death.

Similarly, section 35(1)(e) prohibits a person or organization from selling a human embryo or gamete for the purposes of surrogacy. The rest of the subclause deals with organized networks that actively buy and sell embryos and gametes in relation to which the prohibition is reasonable. However, it is unclear under what conditions the intending couple can secure either sperm or eggs in order to complete the surrogacy. The term “sell” needs clarification here. If gamete donation is envisaged, then the conditions under which this is permissible must be specified, which may well be regulated by the ART Bill. The 2020 ART Bill specifies no protocols in this regard. Further, the subclause needs qualification in a manner similar to the proviso to section 3(vii) which prohibits the storage of an embryo or gametes unless it is legally stored by sperm banks and IVF clinics or for purposes of conducting medical research. There needs to be a clarification regarding the transactions that would involve retrieval from storage for use, what entails “use”, who can do so and under what conditions, including the question of “sale”, costs involved or compensation as may be relevant.

Section 4(iii)(b)(IV) says that a woman can be a surrogate only once, however, there is a need for standardization of the number of embryos that can be transferred in any given attempt of an IVF cycle with the ART Bill. This Bill stipulates that the number of attempts that the surrogate mother can be subjected to will be “as prescribed”, but instead of rules under this Bill, it is more appropriate to regulate such medical protocols through the ART Bill. Moreover, Section 3 (vi) mentions compliance with the Medical Termination of Pregnancy Act, 1971, but is silent on the phenomenon of “foetal reduction” where multiple pregnancies are reduced to a singleton or twins, a practice that is fairly common in pregnancies induced by IVF, including gestational surrogacy.

Last but not the least, in a techno-intensive mode of reproduction it is imperative that there are safeguards for the children born of surrogacy. However, it has not been adequately included in this Bill. The Bill is silent on whether there should be any genetic link between the intending couple and the child. Many jurisdictions ²⁹ around the world that permit surrogacy insist on such a link, with at least one of the intending parents. ³⁰ In fact, the Law Commission of India in its 2009 report on the subject required this in its recommendations (para 4.2[1]). ³¹ There is a need to include provisions for the child to have a right to know the identity of the surrogate mother or the individual donating gametes (if relevant) in the surrogacy procedure. A child’s right to know is an established human rights principle in the context of adoption, and increasingly relevant with the expanded use of reproductive technologies. It is in consonance with the spirit of “best interests of the child” and derived from Articles 7 and 8 of the Convention on the Rights of the Child. ³²

Further, the Bill needs to deal more comprehensively with scenarios where a child born from surrogacy is not accepted by the intending parents. Section 2(a) defines an abandoned child as one that is born out of surrogacy, has been deserted by the intending parents or guardians and has been declared as abandoned by the appropriate authority. What exactly happens when such a child is abandoned? While this contingency was provided for in previous drafts of the ART Bill (2020 ART Bill also simply prohibits it, without defining what happens in case the eventuality does occur), the current Bill does not address it. Will the procedure set forth in Sections 30, 32 and 38 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJA) then be activated so that the abandoned child is produced before the Child Welfare Committee and declared legally free for adoption? ³³ Or given that the surrogate is a close relative of the intending parents, will there be further provisions for the extended family of the surrogate and the intending parents to adopt the child? Will intending parents or guardians also be penalized under Section 75 of the JJA which prohibits cruelty by biological parents or will they have an exemption like biological parents where this is due to circumstances beyond their control?

Restrictive eligibility criteria

Surrogacy is a novel mode of reproduction for individuals and couples, irrespective of their fertility conditions. To limit the ethical use of surrogacy to compelling circumstances or “medically indicated” cases, the law must lay down eligibility criteria for those who may be allowed to use it – delineating physiological (e.g. infertility or other medical conditions that may prevent a pregnancy) as well as social parameters (e.g. sexual orientation, marital status etc.). The Bill, however, lays down highly restrictive criteria. Section 2(p) defines infertility as “the inability to conceive after five years of unprotected coitus or other proven medical condition preventing a couple from conception.” This contradicts the definition of infertility in the 2020 ART Bill and also international standards, e.g. the World Health Organization (WHO) defines it as “a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse.” ³⁴ Conditions such as the absence of a uterus and other medical conditions that prevent carrying a pregnancy to term have not been covered by the Bill as exceptions.

Furthermore, Section 4(ii) delineates the purposes for which surrogacy can be undertaken. Section 4(ii)(e) includes “any other condition or disease as may be specified by regulations made by the Board.” This ground is vague and needs to be brought in line with Section 2(p) which defines “infertility” as including “any proven medical condition preventing a couple from conception.” ³⁵ Intending couples are also required to be childless according to this Bill, with the exception of section 4(iii)(c)(III) which allows surrogacy if such couple has a “child and who is mentally or physically challenged”. This is highly problematic in its framing as it is tantamount to implying that having differently abled children is as good as having none at all, and should not find a place in any progressive legislation. ³⁶

The Bill also permits surrogacy only for heterosexual couples who have been married for five years. As the law in India, as articulated by the courts, moves towards recognizing and deliberating upon other forms of coupledom such as cohabitation and “relationships in the nature of marriage”, ³⁷ this Bill takes one step backwards. When it comes to the form of a couple’s relationship, the Protection of Women from Domestic Violence Act, 2005 offers protection to women who may live or have lived in a shared household in a “relationship in the nature of marriage.” The Assisted Reproductive Technologies Bill, 2010 similarly defined the term “couple” to cover two persons living in India and having a sexual relationship that was legal in India, thus allowing them to commission surrogacy.

In terms of who can become a surrogate, Section 4 (iii) (b) (II) of the Bill allows only women who are “close relatives” of the intending parents to become surrogates. However, in a glaring gap, the Bill does not define the term “close relative”. To begin with, the requirement that the surrogate be a close relative drastically limits the number of women who can potentially carry the pregnancy for the intending couple. Since the close relative has to be between 25 and 35 years of age and be married with a child under section 4(iii) (b) (I), such a close relative is likely to be a sister (either a sibling or a first cousin), or the wife of either of their brothers, or their niece (through a sibling or cousin). Yet, given that infertility can result from several genetically transmitted medical conditions, the pool of close relatives will likely be further restricted to relatives from the family of the spouse who does not suffer from infertility. These restricted eligibility criteria will inevitably frustrate the surrogacy option for many couples, hence there is a need to revisit this requirement. ³⁸

Importantly, the restricted eligibility criteria for intending parents and surrogates envisaged under the Bill are open to challenge on constitutional grounds, especially discrimination and violation of the right to privacy. Firstly, single men and women, cohabiting heterosexual couples and same-sex couples, who are not allowed to commission surrogacy under the Bill can challenge the Bill as discriminatory for violating their rights to equality and equal protection before the law under Article 14 of the Constitution. For any legislative classification to be reasonable under Article 14 of the Constitution, the classification must be founded on intelligible differentia and the differentia must have a rational nexus to the objective sought to be achieved by the legislation. ³⁹ The Bill permits only heterosexual, married couples to commission surrogacy when infertile and thus form their families. It does not afford single men and women, heterosexual co-habiting couples and same-sex couples this option. These differentiae seem intelligible in an empirical sense but not a normative sense. On what basis can a heterosexual married couple be considered to be inherently capable of being a parent and forming a family whereas a single person or cohabiting couple or same-sex couple cannot do the same?

Further, the differentia have no rational nexus with the objective of the Bill which is to “constitute National Surrogacy Board, State Surrogacy Boards and appointment of appropriate authorities for regulation of the practice and process of surrogacy and for matters connected therewith or incidental thereto.” The Bill might seek to regulate surrogacy by limiting its availability to a narrow sliver of commissioning parents; however, this differentiation between who can be a commissioning parent and who cannot, has no rational nexus with regulating surrogacy. Restricting surrogacy to heterosexual married couples does not help regulate surrogacy better than if it were available to single men and women, cohabiting couples and same-sex couples. Moreover, single women are allowed to adopt under the Hindu Adoption and Maintenance Act, 1956. Single and divorced persons are allowed to adopt children as per Section 57 of the Juvenile Justice Act, 2015. ⁴⁰ The 2005 ICMR guidelines also permitted a single woman to be an intending parent. ⁴¹ Finally, Section 3(e) of the Transgender Persons (Protection of Rights) Act, 2019 requires that transgender persons not be discriminated against in terms of “access to, or provision or enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public.” Hence denial of surrogacy services to transgender persons will violate the 2019 Act.

In relation to same-sex couples, it is noteworthy that when the Ministry of External Affairs introduced a surrogacy visa in 2012 for foreign commissioning couples, gay couples were excluded on the basis that the constitutional status of Section 377 of the Indian Penal Code, 1860, which criminalized “sex against the order of nature” was unclear. ⁴² At that time, the Delhi High Court had read down Section 377 as being unconstitutional but that the decision was pending appeal before the Supreme Court. ⁴³ However, the legal landscape has dramatically shifted since then. The criminalization of consensual sexual activity between adults of the same sex by Section 377 has now been held to be unconstitutional for violating Articles 14, 15, 19 and 21 of the Indian Constitution. ⁴⁴ The transformative power of the Indian Constitution and the triumph of constitutional morality over social morality are being marshalled to campaign for equality for LGBT persons in all walks of life including in marriage and specifically for same-sex marriage. ⁴⁵ The Supreme Court itself observed in Navtej Johar that the right to privacy included the right to union and companionship, with Justice Dhananjaya Chandrachud observing that:

The constitutional principles which have led to decriminalization must continuously engage in a rights discourse to ensure that same-sex relationships find true fulfillment in every facet of life. The law cannot discriminate against same-sex relationships. It must also take positive steps to achieve equal protection. ⁴⁶

The Bill must therefore embrace the decision in Navtej Johar in letter and spirit by allowing same-sex couples to avail of surrogacy. Further, the Supreme Court has held that a law can be held to violate Article 14 when it is manifestly arbitrary. In Shayara Bano v Union of India, Justice Rohinton F. Nariman held that

Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14. ⁴⁷

The Bill’s restrictions on who can commission surrogacy are likely to fall foul of Article 14 on this count of manifest arbitrariness as well.

Secondly, there have recently been significant shifts in the right to privacy jurisprudence under the Indian Constitution. Admittedly, there is no explicit right to reproduction protected under the Indian Constitution. However, in B.K. Parthasarthi v Government of Andhra Pradesh, ⁴⁸ the Andhra Pradesh High Court upheld the “right of reproductive autonomy” of an individual as a facet of the “right to privacy” which is protected under Article 21 of the Indian Constitution. This reading was recently reiterated by the Supreme Court in Puttaswamy v Union of India, where it held that “a woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy” (Justice Chelamaswar, para. 38). ⁴⁹ The majority also noted that:

‘the sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well-being. The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy, which makes no distinction between the birth marks of individuals’ (majority, para. 157). ⁵⁰

The provisions of the Bill can therefore be challenged by single men and women, cohabiting heterosexual couples and same-sex couples for violating their reproductive autonomy, dignity and right to privacy under Article 21 of the Constitution. Needless to say, the state can place restrictions on the right to privacy to protect its legitimate interests but only if it meets the three point test set out by Justice Chandrachud in this decision, namely, that there be a law, second, that the law is reasonable rather than manifestly arbitrary and finally, that the means which are adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law. Given the liberalizing nature of relationships and family forms in India today, a fact recognized by Indian courts from time to time, the state would be hard-pressed to argue that the purpose of the Bill, which is to regulate the practice and process of surrogacy can be better met by restricting surrogacy only to heterosexual married couples. The Bill restricts the reproductive autonomy of groups other than such married couples and this restriction is neither reasonable nor proportional to satisfying the law’s objectives. Commentators have thus observed that the Bill may have an uphill task meeting the just, fair and reasonable standard required for laws that restrict the right to privacy. ⁵¹

Admittedly, surrogacy is unique when compared to other cases of reproductive rights wherein women typically assert their right to privacy vis-à-vis the state. In the case of surrogacy, the rights of the intending parents to form a family sit alongside the reproductive autonomy of the surrogate to have a baby on her terms even if it is governed by a contractual arrangement with the intending parents. This relationship is likely to be a highly unequal one. In this context, the state’s insistence on altruistic surrogacy might appear to be a valid restriction on the reproductive autonomy of the surrogate in the interests of preventing commercialization from which third parties benefit at the expense of the surrogate. In reality however, requiring altruistic surrogacy in the absence of compensation to her for her reproductive labour and without corresponding protections for the surrogate under the Bill in fact amounts to an unreasonable and disproportionate encroachment on the surrogate’s reproductive autonomy. Thus it violates the surrogate’s right to privacy under Article 21 as the restriction is not just, fair and reasonable. As Dipika Jain and Payal Shah have argued, it is only by enhancing reproductive rights while paying attention to gender equality (by side-stepping gender stereotypes) ⁵² and to structural factors that undermine women’s access to health more generally that reproductive justice can be achieved. ⁵³ Using gender stereotypes that naturalize women’s reproductive labour as divine ignores the structural inequalities that mediate a surrogate’s performance of such labour. The Bill reinforces these stereotypes while paying lip-service to addressing structural inequalities.

Beyond altruistic vs. commercial surrogacy: “compensated surrogacy” and the prevention of exploitation

Globally, there have been polarized debates on whether surrogacy should be altruistic or commercial. Notwithstanding this distinction, all surrogacy arrangements are ultimately contractual where the intending couple and the surrogate enter into an agreement. It is perplexing that in the Bill there is no mention of a contract between the intending couple and the surrogate mother. Section 6(1) specifies the need for written informed consent from the surrogate mother, but this is limited to medical procedures and side-effects. A more expansive contract or agreement is needed to govern the arrangement, clearly spelling out the rights and duties of each party, namely, the intending couple and surrogate mother, including but not limited to the medical procedures involved. Moreover, although Sections 2 (b) and (f) mention “surrogate mother or her dependents or her representative”, they do not specify who can represent her or under what conditions. For a Bill with a stated objective of preventing the exploitation of surrogate mothers, exclusion of the provision for a contract is a serious omission.

The Bill seeks to ban commercial surrogacy and opts for altruistic arrangements allowing only for payment of medical expenses and insurance coverage for the surrogate. ⁵⁴ However, only reimbursing costs or expenses incurred is not sufficient in lieu of the time and effort that the surrogate devotes to the process. In fact, the PSC pointed out that “permitting women to provide reproductive labour for free to another person but preventing them from being paid for their reproductive labour is grossly unfair and arbitrary.” (para 5.18). It further noted that “the altruistic surrogacy model as proposed in the Bill is based more on moralistic assumptions than on any scientific criteria and all kinds of value judgments have been injected into it in a paternalistic manner.” (para 5.22)

Adopting a pragmatic and rights-based approach, the PSC recommended:

The Committee is of the view that medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother are not the only expenses incurred during the surrogacy pregnancy. For any woman who is going through surrogacy, there is a certain cost and certain loss of health involved. Not only will she be absent from her work, but will also be away from her husband and would not be able to look after her own children. The Committee, therefore, recommends that surrogate mother should be adequately and reasonably compensated. The quantum of compensation should be fixed keeping in mind the surrogacy procedures and other necessary expenses related to and arising out of surrogacy process. The compensation should be commensurate with the lost wages for the duration of pregnancy, medical screening and psychological counselling of surrogate; child care support or psychological counselling for surrogate mother’s own child/children, dietary supplements and medication, maternity clothing and post-delivery care. (para 5.24)

In contrast, the RSC concurred with the approach of the Bill. It observed:

Compensatory surrogacy gives rise to some of the teasing questions:- whether there could be or should be any compensation for the noble act of motherhood; how much compensation could be treated as condign (sic) for a woman who agrees to rent her womb; whether any standard price or cost for this noble act of motherhood could be fixed, whether renting out of her womb by a woman for some material consideration could be considered as an ethical practice and the woman would get the same respect as other women and mothers get in the society. The appropriate and judicious response to all these questions appears to be in the negative and it is in this background that the most acceptable option for surrogacy is the altruistic one … At the heart of the altruistic surrogacy lies the fact that it is bereft of any commercial consideration, it is a social and noble act of highest level. The surrogate mother … willfully and voluntarily resolves to do something worthwhile for the society and she, instead of being considered as getting involved in an immoral and unethical practice, sets an example of being a model woman in the society indulging in altruistic and selfless service as other normal mothers do … ” (para 4.9)

The RSC recommended that the Bill allow for the payment of additional expenditure to cover nutritional food and maternity clothing for the surrogate which are “vital for the well-being and upkeep” of the surrogate but did not itemize it unlike the PSC. Further, while the PSC recognizes the reproductive labour of the surrogate as such, the RSC bases its arguments on gendered stereotypes of “ideal” motherhood thus glorifying women’s labour but at the same time devaluing it. Even when the RSC refers to the PSC report on other matters, it differs on the question of compensation. In its deification of women as mothers, exalting surrogate mothers for their altruism by the very fact of agreeing to act as one, the RSC sets aside a vital argument that the PSC report had highlighted: the labour in surrogacy, notwithstanding the inherent nobility and altruism on the part of women who act as surrogates. An important extension of the argument by the PSC is that compensation for the work of surrogates is a better way of recognizing their contribution than mere exaltation. In any case, merely eliminating the provision for a fee or remuneration for the surrogate, does little to make surrogacy non-commercial, in a context where surrogacy is provisioned almost exclusively in the private healthcare sector by a multi-million dollar ART industry. Compensating the surrogate, whether she is an unrelated consenting woman, a “close relative” or a “willing woman” is only fair recognition of work, far from commercialization.

Finally, the Bill’s provisions on uncompensated surrogacy are likely to violate Article 23 of the Constitution. ⁵⁵ In determining whether it indeed violates Article 23, the main question is whether giving birth to a child amounts to reproductive labour and whether engaging in this form of labour without any compensation (which the Bill requires) does not amount to begar or forced labour. Indian courts have in various contexts acknowledged that the act of bearing a child is reproductive labour. Pertinent here is a long line of cases on the status of the unpaid domestic and care work of housewives and how courts compensate dependents for such labour under the Motor Vehicles Act, 1988 when the housewife dies. In National Insurance Co. Ltd. v Minor Deepika 2009 ⁵⁶ which came up before the Madras High Court, Justice Prabha Sridevan remarked on how unpaid domestic and care work was the foundation of human experience and how it must be valued by the courts by providing compensation to the deceased housewife’s daughter (Paragraph 9). This line of reasoning was confirmed by the Supreme Court in 2010 in the case of Arun Kumar Agarwal ⁵⁷ wherein the court noted the range of tasks that a housewife engages in, including the cooking of food, washing of clothes and teaching of small children. While the focus of the courts in these decisions was on unpaid care work, they also implicitly recognized the reproductive labour performed by mothers in bearing children, sometimes awarding compensation for the loss of a foetus. Moreover, in several cases which discussed surrogacy such as the Baby Manji case ⁵⁸ and the Jan Balaz case, ⁵⁹ contracts for commercial surrogacy were not held to be illegal thus offering implicit recognition of the reproductive labour of surrogates. Therefore, there are adequate grounds for considering the labour of bearing and giving birth to children as labour for purposes of Indian law.

We then need to ask whether provisions of the Bill which allow unremunerated surrogacy by a close relative of the intending couple (or for that matter of any “willing woman”, as the RSC recommended and the government has since accepted according to media accounts ⁶⁰ ) would amount to begar or forced labour thus violating Article 23 of the Indian Constitution. Indian courts have held that “begar” requires showing “that the person has been forced to work against his will and without payment.” ⁶¹ The level of force required here is high such that it negates the will of the individual. To understand what is meant by force, consider PUDR v Union of India, ⁶² also referred to as the Asiad Games case, where Justice Bhagwati elaborated on the meaning of the term “force” under Article 23 of the Constitution and concluded that “any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as ‘force’ and if labour or service is compelled as a result of such ‘force’, it would be ‘forced labour’.” ⁶³ Since only a person suffering from hunger or starvation would accept a job where the remuneration is less than the minimum wage, the court reasoned that any labour remunerated at a level less than the minimum wage would be considered to be forced labour under Article 23. This interpretation of force has been reiterated by the Supreme Court in a long line of cases including under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005. Although the interpretation of force has been elucidated by the courts in relation to market forces which men are typically subject to, we could equally apply this structural understanding of force to coercion applied by family members in a patriarchal society such as India, where the rate of marriage for women is 94.8% ⁶⁴ and families exert considerable power over their lives and reproductive decisions.

If close relatives of the intending couple, especially sisters-in-law or daughters-in-law are persuaded to reproduce not only for their nuclear family but also for the extended family in order to preserve their marital life, the levels of social pressure experienced by them can be of a similar nature to that exercised by the market on male labourers. Indeed, Section 39 of the Bill presumes such coercion. The proposed Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018 (which was passed by the lower house of the Indian Parliament in July 2018 and lapsed before being introduced in the Rajya Sabha) also incorporates a specific offence of aggravated trafficking punishing any person who traffics a woman for the purpose of bearing a child by natural means or through the use of ARTs. ⁶⁵ Irrespective of familial ties between the intending parents and the surrogate, it is exploitative to expect women to perform reproductive labour without being adequately compensated for it. Further, with no payment allowed for in the Bill, these women will be performing reproductive labour for less than the minimum wage attracting the application of Article 23 of the Constitution. ⁶⁶ Admittedly, compensation is not an antidote to coercion but as the Supreme Court has noted, coercion is endemic, whether in the labour market or in marriage, and compensation can keep impermissible levels of exploitation at bay.

Criminalizing surrogacy

A heavily criticized aspect of the Bill is its excessive reliance on criminalization to prevent commercial surrogacy. Section 40 designates that “offences under this Act shall be cognizable, non-bailable and non-compoundable.” Section 35 of the Bill seeks to criminalize a range of processes and actors related to surrogacy, namely, doctors, owners of surrogacy clinics, other intermediaries or “any person” engaged in commercial surrogacy, advertising for it, sale of embryo or gametes for surrogacy, their import or conducting sex selection as part of surrogacy. Section 35(2) specifies a minimum mandatory punishment of ten years and with fine up to ten lakh rupees. Section 36 delineates punishments for medical practitioners and clinic owners, or persons employed by them for any contravention of the provisions of the Bill that are not addressed in section 35, namely, imprisonment for five years with fine of up to ten lakh rupees. Subsequent offences can potentially result in suspension of registration of the medical practitioner. Section 37 meanwhile punishes intending couples and other individuals initiating commercial surrogacy with a minimum mandatory imprisonment of five years and with fine which may extend to five lakh rupees for the first offence and higher punishments for subsequent offences. At the outset, these punishments are disproportionately high when compared to punishments in surrogacy laws around the world. ⁶⁷ For example, in Israel and New Zealand, the highest punishment for violation of the surrogacy laws are no more than one year’s imprisonment.

The high level of criminalization under the Bill is consonant with the Indian state’s efforts over the past decade to don a paternalist mantle and introduce draconian laws against sexual violence, especially rape, child sex abuse and trafficking. These crimes are considered to be mala in se (wrong in itself) but the laws themselves have been ineffective at best, often generating unintended consequences and undermining women’s sexual autonomy and freedom of movement. ⁶⁸ Well before this carceral turn, the Indian state has long legislated on mala prohibita (wrong because they are prohibited) offences. ⁶⁹ These include offences under the Immoral Traffic Prevention Act, 1986 where the activity of selling sexual services itself is not a crime but its commercialization through the involvement of third parties is. Surrogacy is another such activity where under the Bill, altruistic surrogacy is permitted but not its commercialization. There is however an extensive literature documenting how this schizophrenic approach to the sale of services produces considerable ambiguity in the minds of enforcement officials thus generating social stigma and high economic and penal costs borne by the most vulnerable actors in the industry, namely, the women themselves. ⁷⁰

The unintended consequences of criminalization including their ability to create a push-down pop-up effect and the mushrooming of underground markets are well-documented and must be heeded before adopting a highly carceral approach to commercial surrogacy. ⁷¹ Consider Section 35(1)(a) which outlaws “individual brokers or intermediaries to arrange for surrogate mothers and for surrogacy procedures”. However, their individually-driven informal networks have spread across the country in the last decade, mostly through expansive word-of-mouth referrals with commission-based payments for every node of the network. ⁷² It would be challenging to completely dismantle them and gaps in implementation of this provision will result in the emergence of illicit black markets. In fact, soon after the first announcements about the prohibition of commercial surrogacy were made, there were reports of “surrogacy rackets” ⁷³ being busted in major Indian cities in 2017. While “raids” and racket-busting may be seen as effective implementation, the spread of informal networks that have sustained the surrogacy industry for over a decade would be extremely challenging to reign in. Reproductive justice scholars have also long demonstrated how an overarching criminal regime which prohibits abortion through the Indian Penal Code, 1860 (IPC) with exceptions (in the form of the Medical Termination of Pregnancy Act, 1971) in fact leads to a chilling effect in women’s ability to access safe abortion on their terms thus undermining their bodily autonomy. ⁷⁴ The medically mediated nature of the surrogacy sector means that criminalization will adversely affect women’s health. Experience from the implementation of the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 shows that steep punishments and fines impede conviction and present a hurdle in the law’s implementation. ⁷⁵

Furthermore, Section 39, a part of which reads as follows, presumes that all surrogates are forced into surrogacy thus denying that they are capable of exercising their choice in making decisions related to their bodies:

Notwithstanding anything contained in the Indian Evidence Act, 1872, the court shall presume, unless the contrary is proved, that the women or surrogate mother was compelled by her husband, the intending couple or any other relative, as the case may be, to render surrogacy services, procedures or to donate gametes …

It could be that Section 39 is effectively a sub-clause of Section 37 (prohibiting the intending couple from seeking commercial surrogacy) where it reverses the burden of proof. Therefore, in cases where a prosecution is launched under Section 37, the intending couple would have to prove that the surrogate was not coerced; this would facilitate the conviction of intending couples. However, as it currently reads, it suggests that all surrogacy is presumed to be coerced, which frustrates the very purpose of the Bill. If the Bill does indeed presume coercion in every instance of surrogacy then it must amend section 4(iii)(b) to add an additional ground for issuance of the eligibility certificate which states that the appropriate authority must be satisfied that the surrogate mother was not compelled by the intending couple.

Finally, section 41 specifies that a court can take cognizance of any offence only when a complaint in writing is made by the appropriate authority or where a person or social organization has given 15 days’ notice to the appropriate authority of the alleged offence and intends to file a complaint. Given that this provision can be misused by competitor surrogacy clinics or NGOs acting without adequate information, and the timeframe within which the appropriate authority has to take action is short, more safeguards must be introduced in this section to prevent frivolous or malicious actions by private parties.

In conclusion: lessons for India from the global experience on regulating surrogacy

Over the last 40 years or so since the first IVF birth in 1978, many countries have regulated the use of ARTs including surrogacy. However, rarely has robust regulation of surrogacy come without a complementary regulation of the broader area of ARTs. In previous sections, we have demonstrated the pitfalls of attempting the regulation of ARTs and surrogacy in silos. We conclude this paper by drawing lessons from the experiences of other jurisdictions on surrogacy.

In a recent book offering an overview of surrogacy laws around the world, Jens Scherpe, Claire Fenton-Glynn and Terry Kaan ⁷⁶ identify at least four approaches to surrogacy worldwide. These include: the prohibitionist approach where almost all aspects of surrogacy are prohibited including altruistic surrogacy. Countries in this category include France, Germany and Spain. Then, there are tolerationist countries like the UK and several provinces in Australia which allow for restricted forms of surrogacy such as altruistic surrogacy. With the limited availability of women willing to be surrogates however, couples in these countries have looked internationally to hire surrogates to complete their families. When they have returned, their governments have been forced to tolerate international surrogacy arrangements on pragmatic grounds to protect the “best interests of the child.” ⁷⁷ Further, their courts had no possibility of investigating the commercial arrangements that their citizens may have entered into abroad. There are yet other countries that adopt a regulationist approach towards surrogacy by creating a mechanism for the state (often a High Court as in Greece and South Africa or an executive agency as in Israel, New Zealand and Portugal) to approve surrogacy before the transaction is initiated. Further, Greece allows for compensated surrogacy with an upper limit for remuneration and Israel allows for commercial surrogacy. Finally, there are liberal jurisdictions such as California and Russia which allow for commercial surrogacy to be regulated by contracts entered into by the parties without prior state approval.

India fell in the category of liberal countries in the initial years of the growth of the ART industry. Since 2016, when India started rethinking its liberal approach to surrogacy, there has been a reversal of trends internationally. Countries that once banned both altruistic and commercial surrogacy are having to deal with the adverse consequences of effectively “exporting” their surrogacy problem. They have therefore felt the need to adopt a more pragmatic approach to surrogacy at home. As India considers prohibiting commercial surrogacy and allowing the purest form of altruistic surrogacy (where no more than medical expenses and insurance costs for loss, damage, illness or death are borne by the intending couple), countries like the UK are considering a more permissive stance towards surrogacy. Hence, it is crucial for India to consider lessons from tolerationist and regulationist countries when passing laws on ART and surrogacy. Placing a high level of restrictions on surrogacy threatens to export the surrogacy market elsewhere. Given that the remaining liberal jurisdictions are costly venues for surrogacy, only the wealthiest Indians will be able to afford surrogacy, thus leading to a highly inequitable scenario regarding access to surrogacy in the country. Moreover, there remains the formidable risk of not being able to closely monitor such transactions abroad. Instead, we need to return to the National Guidelines for the Accreditation, Supervision and Regulation of ART Clinics in India, 2005 issued by the ICMR which had an entire chapter (Chapter 7) on providing ART to economically weaker sections of society, including through clinics in the public sector, by addressing the high cost of ovarian stimulation hormones and reducing dependence on multi-national corporations for these drugs.

Further, several tolerationist and regulationist countries like Israel and South Africa have robust written Constitutions (like India) where citizens have litigated the right to use surrogacy services as single parents, cohabitating couples in a permanent relationship and as same-sex couples. As outlined earlier, the Bill by excluding cohabiting couples, ⁷⁸ single persons, and same-sex couples ⁷⁹ from pursuing surrogacy violates their right to privacy and reproductive autonomy as set out in the 2017 Puttaswamy judgement of the Supreme Court. The Indian government must anticipate constitutional challenges on these fronts.

Against this backdrop, the recommendations of the RSC on the sheer unworkability of the Bill as passed by the Lok Sabha are very welcome. Yet, in recommending the liberalization of the eligibility criteria while retaining altruistic surrogacy, the RSC’s 2020 report has muddied the regulatory waters yet again. On the one hand, like the proponents of the Bill, the RSC believes that the epitome of Indian motherhood is to reproduce children for the market, with “divine warmth and affection,” irrespective of detriment to the well-being of one’s self and family, thus valorizing freely provided reproductive labour. On the other hand, the inclusion of the term “prescribed expenses” leaves the door half open for some form of compensation, especially since the arrangement is not restricted to “close relatives”. Where the Bill seems to frustrate the very possibility of surrogacy through stringent eligibility criteria for both the intending parents and the surrogate, with restricted payments (medical expenses and insurance coverage) and carried out only for the domestic market, the RSC expands the eligibility criteria and allows OCIs and PIOs to pursue surrogacy thereby opening up the market. But, it incredulously expects that surrogates in the hopes of being “role models” for society, will carry a child through term for strangers without any compensation even when wealthy OCIs and PIOs commission surrogacy. Who would such “willing women” be and how would the government prevent their forced labour and exploitation? Even if the Committee’s suggestions are accepted, expecting the performance of reproductive labour for third parties without payment will raise the presumption that such labour is forced for lack of payment and will therefore violate Article 23 of the Constitution.

In conclusion, the government now has the reports of two parliamentary committees wherein the collective wisdom of more than 50 MPs has demanded a fundamental overhaul of the Bill. Even as some of the recommendations of the RSC seem acceptable to the government, there are some glaring omissions which may well tie up the Bill in constitutional litigation for years, particularly around issues of discrimination, right to privacy and forced labour, rendering uncertain (once again) the legal landscape for those who harbour the hope of making families through surrogacy. For all these reasons, it is important that as the government updates the Bill, it gives due consideration to these issues of fundamental importance. Otherwise, it would miss an important opportunity for sensible law reform.

Notes

1 This is the labour involved in performing social reproduction which is defined by Hoskyns and Rai to be “biological reproduction; unpaid production in the home (both goods and services); social provisioning (… voluntary work directed at meeting needs in the community); the reproduction of culture and ideology; and the provision of sexual, emotional and affective services (such as are required to maintain family and intimate relationships)” C Hoskyns and S Rai, ‘Recasting the global political economy: Counting women’s unpaid work’ [2007] 12(3) New Political Economy 297–317, 300.

2 A Bailey, ‘Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy’ [2011] 26(4) Hypatia 715–741.

3 G Aravamudan, Baby makers: The story of Indian surrogacy (Harper Collins 2014).

4 S Dasgupta and S Das Dasgupta, ‘Business as Usual?: The Violence of Reproductive Trafficking in the Indian Context’ in S Dasgupta and S Das Dasgupta (eds), Globalization and Transnational Surrogacy in India: Outsourcing Life (Lexington Books 2014) 194.

5 J Agnihotri Gupta, ‘Reproductive Biocrossings: Indian Egg Donors and Surrogates in the Globalized Fertility Market’ [2012] 5(1) International Journal of Feminist Approaches to Bioethics 25–51.

6 M Rao, ‘Why All Non-Altruistic Surrogacy Should Be Banned’ [2012] 47(21) Economic & Political Weekly 15–17.

7 K Sangari, Solid:Liquid: A (Trans)National Reproductive Formation (Tulika Books 2015) 87.

8 ibid 78.

9 ibid 113.

10 A Pande, Wombs in Labor: Transnational Commercial Surrogacy in India (Columbia University Press 2014) 6.

11 Pande (n 10); S Rudrappa, Discounted Life: The Price of Global Surrogacy in India (NYU Press 2015); D Deomampo, Transnational Reproduction: Race, Kinship, and Commercial Surrogacy in India (NYU Press 2016); K Vora, Life Support: Biocapital and the New History of Outsourced Labor (University of Minnesota Press 2015); A Majumdar, Transnational Commercial Surrogacy and the (Un)Making of Kin in India (Oxford University Press 2017).

12 Pande (n 10) 23.

13 Ministry of Home Affairs, Government of India, Orders No. 25022/74/2011-F.I dated 9 July 2012, 7 March 2013 and 22 September 2015.

14 Jayashree Wad v Union of India, W.P.(C) 95/2015

15 The Assisted Reproductive Technologies (Regulation) Bill, 2020. Bill No. 97 of 2020, As introduced in Lok Sabha. See: <https://www.prsindia.org/billtrack/assisted-reproductive-technology-regulation-bill-2020> accessed on 22 September 2020.

16 Prof. MV Rajeev Gowda spoke against the exclusion of “Single parents, living partners, divorcees, same sex couples and couples, where one of the partners is not Indian” in accessing surrogacy (19 November 2019 Uncorrected Rajya Sabha Debates – 17.00 to 18.00, p.1).

17 Kahkashan Parveen highlighted the need to reduce the time period to define infertility to one year as against five years (19 November 2019 Uncorrected Rajya Sabha Debates – 17.00 to 18.00, p.35). Vijaysai Reddy spoke about the need to take “into account other medical conditions such as women may conceive but may not be able to carry for the nine months during her pregnancy or may have multiple miscarriages. There are conditions such as hypertension, diabetes that affects the pregnancy. These other conditions have not been taken into consideration while making the definition for infertility.” (20 November 2019 Uncorrected Rajya Sabha Debates – 14.00 to 15.00, p.2).

18 Abir Ranjan Biswas (19 November 2019 Uncorrected Rajya Sabha Debates – 17.00 to 18.00, p.15).

19 Prof. MV Rajeev Gowda (19 November 2019 Uncorrected Rajya Sabha Debates – 16.00 to 17.00, p.32).

20 Dr. Amee Yajnik argued that the needs and the rights of the child should actually be put at the centre in drafting a Bill on this subject (20 November 2019 Uncorrected Rajya Sabha Debates – 14.00 to 15.00, p.22).

21 Prof. Ramgopal Yadav (19 November 2019 Uncorrected Rajya Sabha Debates – 17.00 to 18.00, p.25).

22 Select Committee, Rajya Sabha, Report on The Surrogacy (Regulation) Bill, 2019, para 4.8, p.22.

23 Select Committee, Rajya Sabha, Report on The Surrogacy (Regulation) Bill, 2019, para 4.11, p.23.

24 It reads “commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind.”

25 PM India, ‘Cabinet approves the Assisted Reproductive Technology Regulation Bill 2020ʹ (PM India, 19 February 2020) <https://www.pmindia.gov.in/en/news_updates/cabinet-approves-the-assisted-reproductive-technology-regulation-bill-2020/> accessed 1 August 2020.

26 See Prabha Kotiswaran, ‘Assisted Reproductive Technology Bill needs a thorough review’ Indian Express (9 October 2020).

27 It states, “no woman, other than an ever married woman having a child of her own and between the age of 25 to 35 years on the day of implantation, shall be a surrogate mother or help in surrogacy by donating her egg or oocyte or otherwise.”

28 It specifies, “no woman shall act as a surrogate mother by providing her own gametes.”

29 For example, Canada and Australia require that at least one of the intending parents have a genetic link to the child born out of surrogacy. With transnational surrogacy, they often require proof of such link in the form of DNA test results. See, K Lozanski, ‘Transnational surrogacy: Canada’s contradictions’ [2015] 124 Social Science & Medicine 383–390 and Australian High Commission in New Delhi, ‘Children born through Surrogacy Arrangements applying for Australian Citizenship by Descent ‘ (Australian High Commission New Delhi India, Bhutan) <https://india.embassy.gov.au/ndli/vm_surrogacy.html> accessed 28 July 2020.

30 The RSC recommends that there be a genetic link between the child and the intending mother or intending couple. p. 26.

31 228th Law Commission of India Report, Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy (2009)<http://lawcommissionofindia.nic.in/reports/report228.pdf> accessed 1 August 2020.

32 K O’Donovan, ‘A Right To Know One’s Parentage?’ [1988] 2(1) International Journal of Law, Policy and the Family 27–45; KS, Rotabi, and others, ‘Regulating Commercial Global Surrogacy: The Best Interests of the Child’ [2017] 2 J Hum Rights Soc Work 64–73.

33 If this is the case, the definition of “abandoned child” under Section 2 of the Juvenile Justice Act, 2015 must be amended to include not just biological or adoptive parents or guardians but also intending parents or guardians.

34 See the clinical definition of infertility by the WHO at: https://www.who.int/reproductivehealth/topics/infertility/definitions/en/. Further, Section 2 (g) stipulates that couple “means the legally married Indian man and woman above the age of 21 years and 18 years respectively”. This needs to be read along with Section 2 (r) which defines “intending couple” as a couple who have been medically certified to be an infertile couple and who intend to become parents through surrogacy and Section 4(iii)(c)(I) wherein the age of the intending couple is between 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification.

35 Interestingly, the RSC recommended the deletion of Section 2(p) of the Bill which defined infertility as the inability to conceive after 5 years of unprotected coitus, and did away with the need for medical certification of infertility. Medical indication for gestational surrogacy was sufficient and this has to be certified under Section 4(iii)(A)(I), para 4.20–21, p. 25.

36 The debates on disability and rights of the disabled include discussions on the critical importance of recognizing their personhood, strongly rooted in principles of human rights. See, E De Schauwer and others, ‘Desiring and critiquing humanity/ability/personhood: disrupting the ability/disability binary’ [2020] Disability & Society [Online], 16 March; P. Mittler, ‘UN Convention on the Rights of Persons with Disabilities: Implementing a Paradigm Shift.’ [2015] 12 (2) Journal of Policy and Practice in Intellectual Disabilities 79–89. Moreover, such a provision in the Bill is in direct contravention of The Rights of Persons with Disabilities Act, 2016 that guarantees equality and non-discrimination for the disabled including a right to “life with dignity and respect for his or her integrity equally with others” in section 3(1).

37 D.Velusamy v D.Patchaiammal [2010], CA2028-2029(SC).

38 Possibly heeding the impracticability of these suggestions, the RSC has recommended the removal of this restriction. Any willing woman meeting the age criteria of the Bill can become a surrogate under Section 4(iii)(b); para 4.53, p. 31.

39 The State Of West Bengal v Anwar Ali Sarkar 1952 AIR 75.

40 Arijeet Ghosh and Nitika Khaitan, ‘A Womb of One’s Own: Privacy and Reproductive Rights’ [2017] 52(42–43), Economic & Political Weekly (EPW Engage), [Online] <https://www.epw.in/engage/article/womb-ones-own-privacy-and-reproductive-rights>, accessed 9 September 2020.

41 Unfortunately, here the Select Committee favoured only widowed and divorced women between the ages of 35 and 45 as eligible to pursue surrogacy provided they obtained a certificate from the National Surrogacy Board upon application. A couple of Indian origin also have to obtain a certificate from the National Surrogacy Board; para 4.24, p. 25.

42 Section 377 read as follows: 377. Unnatural offences – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation – Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

43 Naz Foundation v Government of NCT Delhi, 2009 S.C.C. OnLine Del 1762; the decision on appeal was rendered in Suresh Kumar Koushal v Naz Foundation, (2014) 1 S.C.C. 1.

44 Navtej Singh Johar v Union of India (2018) 10 S.C.C. 1.

45 See Oxford Union Address by Menaka Guruswamy and Arundhati Katju, [Online] https://www.youtube.com/watch?v=-Lp6H4YYN-k accessed 9 September 2020

46 Navtej Singh Johar v Union of India (2018) 10 S.C.C. 1, 185.

47 Shayara Bano v Union of India (2017) 9 SCC 1, 262.

48 B.K. Parthasarthi v Government of Andhra Pradesh [2000] 1 ALD 199.

49 Puttaswamy v Union of India [2017] Writ Petition Civ 494/12,(SC) (hereafter ‘Puttaswamy’).

50 In another case Javed v State of Haryana (AIR 2003 SC 3057) however, dealing with electoral laws that bar individuals with more than two children from contesting elections to local bodies (panchayats), the Supreme Court upheld this restriction on the right to reproduce on the basis that it was justified for ‘socio- economic welfare and health care of the masses’ and ‘consistent with the national population policy’. This judgement was however rendered prior to the Puttaswamy decision; the Supreme Court’s judgement in Puttaswamy would be binding in future cases relating to autonomy in matters of reproduction.

51 Arijeet Ghosh and Nitika Khaitan, ‘A Womb of One’s Own: Privacy and Reproductive Rights’ [2017] 52(42–43) Economic & Political Weekly (EPW Engage), [Online] <https://www.epw.in/engage/article/womb-ones-own-privacy-and-reproductive-rights> accessed 9 September 2020. Also, Aparna Chandra argues that the Bill limits surrogacy not based on scientific data, but on conceptions of “public morality”-such as age criteria, number of pre-existing children of the commissioning parents and marital status of the parties. See, Aparna Chandra, ‘Privacy and Women’s Rights’ [2017] 52(51) Economic & Political Weekly, 46–50.

52 Surrogacy does defy gender stereotypes to the extent that it decouples birthing from the responsibilities of social motherhood.

53 D Jain and P Shah, ‘Reimagining Reproductive Rights Jurisprudence in India: Reflections on the Recent Decisions on Privacy And Gender Equality From the Supreme Court Of India’ [2020] 39(2) Columbia Journal of Gender And Law 1–53, p. 6.

54 Sections 2(b) and 2(f) of the Bill which define altruistic and commercial surrogacy mention this along with a prohibition of remuneration of any kind. However, these sections are ambiguous as to whether the surrogate mother is to be reimbursed for the medical costs or if the intending couple will take care of all the costs directly.

55 Prohibition of traffic in human beings and forced labour (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

56 MANU/TN [2009] 1304.

57 Arun Kumar Agarwal v National Insurance Company [2010] 9 SCC 218

58 Baby Manji Yamada v Union of India (UOI) and Anr AIR [2009] SC 84.

59 Union of India & Anr v Jan Balaz and others [2009] SLA Civ 31639 (SC); Union of India & Anr v Jan Balaz and others [2010] CA 8714 SC.

60 HT Correspondent, ‘Rajya Sabha panel recommendations get Cabinet nod’ The Hindustan Times (Delhi, 27 February 2020) [Online] https://www.hindustantimes.com/india-news/rajya-sabha-panel-recommendations-get-cabinet-nod/story-itB4FkNggJq0qnNfoCY6FM.html

61 Ram Khelwan Pathak v State of U.P., [1998] 2 AWC 1171.

62 People’s Union for Democratic Rights v Union of India, AIR [1982] SC 1473.

63 ibid, para 5.10.

64 G Raveendran, The Indian Labour Market: A Gender Perspective Discussion Paper for Progress of the World’s Women 2015–2016 (UN Women 2016) 11.

65 The draft provision s. 5 reads as follows:‘5. Trafficking for the purpose of bearing child. – Notwithstanding anything contained in any other law for the time being in force, whoever commits the offence of trafficking of a person for the purpose of bearing child either naturally or through assisted reproductive techniques for commercial purposes, shall be punished with imprisonment for a term which shall not be less than ten years, but which may extend to life imprisonment and shall also be liable to fine which shall not be less than one lakh rupees.’ Available at https://www.prsindia.org/sites/default/files/bill_files/The%20Trafficking%20of%20Persons%20%28Prevention%2C%20Protection%20and%20Rehabilitation%29%20Bill%2C%202018.pdf The base offence for this aggravated offence of trafficking lies in Section 370 of the Indian Penal Code where a person is trafficked by coercive means (including the use of threats, the use of force, or any other form of coercion, abduction, the use of fraud, or deception, or the abuse of power, or inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited) for purposes of exploitation (“any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.”). The fact that the Trafficking Bill visualizes women who are trafficked by market intermediaries for producing a child must alert us to the fact that similar levels of coercion can be exerted by the family as well, resulting in the exploitation of women.

66 In fact, a constitutional expert Gautam Bhatia has made a similar argument to characterize the unpaid labour of women as forced labour under Art. 23. See Bhatia, The Transformative Constitution A Radical Biography in Nine Acts (HarperCollins India 2019) 210–211.

67 Unfortunately, the RSC in its zeal to curb commercial surrogacy suggests that Section 38 be expanded to cover omissions to pursue altruistic surrogacy (p. 61) which if accepted would introduce considerable ambiguity in the law while also violating general principles for imposition of criminal liability.

68 Prabha Kotiswaran, The Carceral Politics of Sexual Violence: Notes on a Political Economy of Criminal Law, Second Annual Project 39A Lecture, National Law University Delhi, 2019; Preeti Pratishruti Dash, ‘Rape adjudication in India in the aftermath of Criminal Law Amendment Act, 2013: findings from trial courts of Delhi, [2020] 4(2) Indian Law Review, 244-266; Partners for Law in Development, Why Girls Run Away To Marry – Adolescent Realities And Socio Legal Responses In India, 2019, available at https://www.academia.edu/40718265/WHY_GIRLS_RUN_AWAY_TO_MARRY_ADOLESCENT_REALITIES_AND_SOCIO-LEGAL_RESPONSES_IN_INDIA; Raided: How Anti-Trafficking Strategies Increase Sex Workers’ Vulnerability to Exploitative Practices, SANGRAM. Available online at http://sangram.org/resources/RAIDED-E-Book.pdf

69 This distinction has long been debated by philosophers and scholars of criminal law; whether an offence is mala in se or mala prohibita often turns on whether the act is intrinsically morally wrong. This distinction is not the focus of the research at hand, but we find compelling philosopher Susan Dimock’s argument where she draws on social contract theory to define mala in se offences as offences involving “conduct that must be prohibited in any society united for mutual benefit on terms that are fair to all.” Mala prohibita offences on the other hand are “those wrongs that offend against rights and duties assumed by participants within valuable social practices, when participants are tempted to violate the rights of others or to neglect their own duties and doing so would undermine the practice or deprive it of its value.” Thus, insider trading is a mala prohibita offence that a society may (rather than must) choose to criminalize. S Dimock, ’The Malum prohibitum-Malum in se Distinction and the Wrongfulness Constraint on Criminalization’ [2016] 55(2) Dialogue 1–24, see pp 15, 21. Selling sexual services for money or bearing a baby for a couple in exchange for money are in our view similar examples.

70 P Kotiswaran, Dangerous Sex, Invisible Labor: Sex Work and the Law in India (Princeton 2011); Amnesty International. 2016a. Policy on State Obligations to Respect, Protect and Fulfil the Human Rights of Sex Workers. Pol 30/4062/2016; Amnesty International. 2016b. Explanatory Note on Amnesty International’s Policy on State Obligations to Respect, Protect and Fulfil the Human Rights of Sex Workers. Index: POL 30/4063/2016; Amnesty International, 2016c. Sex Workers at Risk: A Research Summary on Human Rights Abuses Against Sex Workers. Index: POL 40/4061/2016.

71 P Marshall and S Thatun, ‘Miles Away: The Trouble with Prevention in the Greater Mekong Sub-region’ in Kamala Kempadoo, Jyoti Sanghera and Bandana Pattanaik (eds), Trafficking and Prostitution Reconsidered New Perspectives on Migration, Sex Work, and Human Rights (Paradigm Publishers 2005) 44.

72 As is evident from the body of rich ethnographic work on the surrogacy industry in India (n 11)

73 ANI, ‘Hyd police busts surrogacy racket in hospital; 46 women illegally confined’ Deccan Chronicle, (Hyderabad, 18 June 2017) [Online] <https://www.deccanchronicle.com/nation/crime/180617/hyderabad-police-bust-illegal-surrogacy-racket.html>, accessed 9 September 2020

74 Dipika Jain and Brian Tronic, ‘Conflicting abortion laws in India: Unintended barriers to safe abortion for adolescent girls’ [2019] 4(4) Indian Journal of Medical Ethics, 310–317; D Jain and P Shah, ‘Reimagining Reproductive Rights Jurisprudence In India: Reflections On The Recent Decisions On Privacy And Gender Equality From The Supreme Court Of India’ [2020] 39(2) Columbia Journal Of Gender And Law 1–53, 3. See also Dipika Jain, Proposed Changes to Abortion Law Continue to Sideline Pregnant Persons, 15 March 2020, <https://science.thewire.in/health/proposed-changes-to-abortion-law-continue-to-sideline-pregnant-persons/> accessed 9 September 2020

75 G Aravamudan, Disappearing Daughters: The Tragedy of Female Foeticide (Penguin Books 2007), see pp. 99–101 and Ravinder Kaur ed., Too Many Men, Too Few Women: Social Consequences of Gender Imbalance in India and China (Orient Blackswan 2016), see p. 288.

76 Claire Fenton-Glynn, Terry Kaan and Jens Scherpe (eds), Eastern and Western Perspectives on Surrogacy (Intersentia 2019).

77 This is a universally accepted norm emerging, most notably, from the Convention on the Rights of the Child, 1990. Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3.

78 The RSC for instance recommends the modification of Section 4(iii)(c)(I) to make this clear, that the couple be married and be between the age of 23 and 50 in the case of the female and between 26 and 55 in the case of the male.

79 Note for example, a law suit for the right to marriage initiated by a same-sex couple before the Kerala High Court. Lily Wakefield, ‘Indian gay couple who had a stunning temple wedding launch gruelling fight to have marriage legally recognised’ Pink News, (29 January 2020) [Online] <https://www.pinknews.co.uk/2020/01/29/kerala-india-gay-couple-high-court-same-sex-marriage-ban-illegal-unconstitutional/> accessed 9 September 2020.

Download citationhttps://doi.org/10.1080/24730580.2020.1843317CrossMark

Sex selection in Indian community persists despite years spent in Canada

Study shows Punjabi mothers who already had 2 daughters, had 240 boys for every 100 girls

By Laura Glowacki, CBC News

Indian-born mothers in Ontario are more than two-times more likely to have boys than girls as their third child if they have already had two daughters, even after spending more than 10 years in Canada, a new study has found. (The Associated Press)

 

Laura Glowacki

Contrary to what researchers expected, the length of time Indian immigrants have lived in Canada has no effect whatsoever on the practice of sex selection in favour of boys.

The lead author of an upcoming study, Marcelo Urquia, said his team’s findings show Indian mothers are more than twice as likely to have a male third child, if a couple has already had two daughters.

“Families prefer to have boys rather than girls,” said Urquia, an assistant professor at the University of Manitoba. “Or, if they already have daughters, they want to have at least one male in the family.”

While Canadian-born women give birth to about 105 boys for every 100 girls, Urquia and his team from the University of Toronto and St. Michael’s Hospital, showed Punjabi-speaking mothers in Ontario, at their third birth, had 240 boys for every 100 girls.

“We expected that with longer exposure to Canada’s environment of greater gender equality, immigrants from India would progressively shift toward valuing daughters and sons more equally,” Urquia said. But it seems that’s not so.

Instead of finding a decrease, they actually found a slight increase in preference for boys.

For Punjabi-speaking Ontario women new to Canada, Urquia found they give birth to 213 boys to every 100 girls if they have already had two daughters, whereas mothers who have been in Canada for 10 years or more, including those raised in Canada, gave birth to 270 boys to every 100 girls.

Among Indian immigrants, the researchers found sex selection most common in the Punjabi-speaking community but it was also seen in women whose mother tongue was Hindi.

No choice for some moms: director

The new findings are based on 46,834 live births to Indian-born mothers who gave birth in Ontario hospitals between 1993 and 2014 and will be published in an upcoming issue of the Journal of Obstetrics and Gynaecology Canada.

Sex selection with preferences for boys happens across the country, Urquia said.

“But we don’t really understand why this is still happening in Canada.”

The data were especially puzzling to Urquia and his colleagues because other health trends do change after immigrants live in Canada for years. For example, Indian women who abstained from drinking in India tend to begin consuming alcohol after living in Canada, said Urquia. Also, Indian immigrants tend to become more sedentary when they move to Canada and obesity rates, not surprisingly, rise.

“We don’t have a proper explanation,” he said of the preference for boys. “We really don’t know why this is happening.”

Kripa Sekhar, executive director of the South Asian Women’s Centre in Toronto, said findings by Urquia and his colleagues confirmed what her organization has seen and heard from women for years.

Her organization was one of a handful consulted as part of the new research into sex selection.

“I’m not saying this happens across the board but definitely among more traditional, South Asian families there appears to be a desire to have a male child,” Sekhar said.

Some of the potential reasons mothers abort female daughters can be traced to both cultural and economic reasons, she said.

Traditionally, sons take care of elderly parents and their families also receive dowries in marriages, so the birth of a boy is a joyous occasion, Sekhar said, especially for traditional families.

“I think it comes down from traditions of patriarchy,” she said.​ “It’s very sad … Because she’s under pressure to have that male child, she actually in many ways has no choice.”

http://www.cbc.ca/news/canada/manitoba/sex-selection-indian-community-1.4083853

More than 100 Activists condemn PAC recommendation of compulsory sex determination tests

 PAC REPORT

Mumbai – We the undersigned representatives of women’s and health rights organizations strongly condemn the recommendations of Public Accounts Committee (PAC) to the Maharashtra Legislative Assembly making pre-natal sex determination and tracking of pregnant women mandatory to prevent  sex selection.

These recommendations are grossly violative of the PcPNDT Act itself, and will impinge upon the MTP Act as well. It is ironical that such a recommendation is being made in Maharashtra, which pioneered the law to curb sex selection after a long campaign by women and health activists that linked the use of sex-selection and sex-detection technologies to gender based discrimination and thereafter to  the declining child sex ratio in India .

It is shocking that the proposal is being mooted at a time when yet another racket of sex selection has recently come to light in Mhaisal, Sangli, which clearly exposes the nexus between unscrupulous medical professionals and corrupt government health officials in allowing illegal sex determination to proliferate in the state.

It is quite clear that such a proposal is intended to absolve doctors and to shift the burden to the shoulders of pregnant women. The 2003 amendments to the 1994 PcPNDT Act recognized the lack of autonomy faced by women and had specifically kept the pregnant woman out of the ambit of the Act. This new proposal will only result in a twenty-four hour surveillance of pregnant women both within the family and by the state authorities. It will unnecessarily target every woman bearing a female foetus, and will link any abortion that such a woman has (for any reason) to sex selection. This will adversely impact women’s already poor access to safe abortion.  It will fuel a proliferation of illegal facilities for getting rid of unwanted female foetuses.

PAC suggestions of  surveillance is violation of our fundamental right to privacy and victimization of the woman when the focus of surveillance should be providers who are the key link to practice of sex determination and sex selection.

We demand that the Maharashtra Legislative Assembly rejects the recommendations of the PAC. We also demand stringent implementation of the present Act, which has clearly acted as a deterrent wherever it has been used effectively.

गर्भलिंग चाचणी सक्तीचे करण्याची अजब शिफारस करणाऱ्या लोकलेखा समितीचा कडक निषेध

लोकलेखा समितीने महाराष्ट्र विधान सभेला सादर केलेल्या आपल्या अहवालात राज्यात लिंग निदान रोखण्यासाठी गर्भलिंग चाचणी सक्तीची करून सर्व गरोदर महिलांवर पाळत ठेवण्याची अजब शिफारस केली आहे, त्याचा आम्ही खाली सही करणाऱ्या महिला व आरोग्य हक्क संघटना तीव्र निषेध करीत आहोत.

मुळात अशी शिफारस लिंग निदान प्रतिबंधक (पी.सी.पी.एन.डी.टी.) कायद्याचे घोर उल्लंघन करणारी असून, गर्भपाताशी संबंधित एम.टी.पी. कायद्यावर देखील त्याचे विपरीत परिणाम होतील. स्त्रियांशी टोकाचा भेदभाव करणारी लिंगनिदानाची पद्धत आणि त्यासाठी वापरण्यात येणाऱ्या तंत्रज्ञानामुळे भारतात ०-६ वर्ष वयोगटातील मुलींचे प्रमाण कसे घटत आहे, ह्या गंभीर मुद्द्याकडे प्रथम महाराष्ट्रातील महिला आणि आरोग्य हक्क कार्यकर्त्यांनी लक्ष वेधले. त्यांनी दीर्घ काळ चालवलेल्या मोहिमेचा परिणाम म्हणून महाराष्ट्रात प्रथम लिंग-निवड प्रतिबंधात्मक कायदा मंजूर झाला, ह्याचा विसर लोकलेख समितीला पडलेला दिसतो.

म्हैसाळ (सांगली) आणि नाशिक शहरात अलीकडेच उजेडास आलेल्या बेकायदेशीर लिंग निदानाच्या प्रकरणातून अप्रामाणिक वैदकीय व्यावसायिक आणि भ्रष्ट सरकारी अधिकारी ह्यांच्यातल्या संगनमताने राज्यात बेकायदेशीर लिंगचाचणीची केंद्र कशीं फोफावली आहेत, हे समोर आलेले असताना, अशी शिफारस करणे अधिक धक्कादायक आहे.

प्रत्यक्षात लिंग निदान करणाऱ्या डॉक्टरांना सुट देऊन, गरोदर स्त्रीवर सर्व जबाबदारी टाकण्याचा हा निषेधार्य प्रकार आहे. १९९४च्या लिंग निवड प्रतिबंधक कायद्यात २००३ मध्ये सुधारणा करताना स्त्रियांना निर्णय स्वातंत्र्य नसल्याची वस्तुस्थिती लक्षात घेऊन, गरोदर स्त्रीला कायद्याच्या कक्षेतून काढले होते. ह्या नव्या प्रस्तावामुळे गरोदर स्त्री वर कुटुंबांतर्गत आणि शासकीय पातळीवरची चोवीस तासांची पाळत सहन करावी लागेल. स्त्री-गर्भ असलेल्या प्रत्येक गरोदर महिलेला विनाकारण लक्ष्य बनवून, तिने कोणत्याही कारणास्तव गर्भपात करून घेतला तरी त्याचा संबंध लिंग निदानाशी जोडला जाईल. स्त्रियांना अगोदरच सुरक्षित गर्भपाताची सेवा मिळणे अवघड झाले असताना, नको असलेले स्त्री गर्भ नष्ट करणारी एक बेकायदेशीर यंत्रणाच ह्यामुळे फोफावणार आहे.

अशा पद्धतीने स्त्रियांवर पाळत ठेवण्याची ही लोकलेखा समितीची शिफारस स्त्रियांच्या खाजगी आयुष्यात हस्तक्षेप करणारी आणि मुलभूत अधिकारांवर घाला घालणारी आहे. उलट बेकायदेशीर  पद्धतीने लिंग निदान आणि लिंग निवड करणारी केंद्र चालवणाऱ्यांवर सरकारने पाळत ठेवून त्यांचे उच्चाटन करण्याची आवश्यकता आहे.

महाराष्ट्र विधान सभेने लोकलेखा समितीच्या ह्या शिफारशीला स्पष्ट नकार द्यावा अशी  मागणी आम्ही करीत आहोत. जिथे पी.सी.पी.एन.डी.टी. कायद्याचा प्रभावी उपयोग केला गेला, तिथे लिंग निदान रोखण्यासाठी मदत झाली असा आजपर्यंतचा अनुभव असून, कायद्याची महाराष्ट्रात कडक अंमलबजावणी करावी अशी मागणी आम्ही करीत आहोत.

Endorsed

Organziations 

Forum Against Sex Selection (FASS)

Janwadi Mahila Sanghatana (AIDWA)

Mahila Sarvgrameen Utkarsh Mandal (MASUM)

Forum for Medical Ethics Society

Forum Against Oppression of Women  (FAOW)

Jan Swasthya Abhiyan- Mumbai

National Allaince of Materal Health and Human Rights (NAMHHR)

Nazariya: A Queer Feminist Resource Group

LABIA –  A Queer Feminist LBT Collective, Bombay

Maharashtra Mahila Arogya Hakka Parishad

 National Alliance of People’s Movements– (NAPM)

Point of View, Mumbai

SAMYAK, Pune

CEHAT, Mumbai

Sruti Disability Rights Centee

Saheli Women’s Resource Centre

Individuals

1. Kamayani Bali Mahabal,  (FASS)
2. Kiran Moghe , (AIDWA)
3. Sonya Gill, (AIDWA)
4. Ravi Duggal, Health activist
5. Manisha Gupte ,  Women and Health activist
6. Adv Indira Jaising, Lawyers Collective
7. Lakshmi Menon . Womens Health Movement
8. Brinelle D’souza – Tata Institute of Social Sciences
9. Farah Naqvi, Writer & Activist, Delhi
10. Dr B Ekbal ,  Jan Swasthya Abhiyan, Kerala
11. Dr. Nizara Hazarika , Associate Professor, Sonapur College,Assam
12. Gabriele Dietrich, Pennurimai Iyakkam, TN
13. Sunita Bandewar, FMES and IJME
14. Amulya Nidhi , .Health Activist Madhya Pradesh
15. Dr. Sylvia Karpagam, Public health doctor and researcher
16. Saswati Ghosh, Associate Professor and hod, Economics, City College (under Calcutta University)
17. Nisha Biswas
18. Abha Bhaiya
19. Nivedita Menon, JNU
20. Dyuti
21. Johanna Lokhande
22. Madhu Mehra, Partners for Law in Development
23. Ulka Mahajan,  Social activist
24. Mary E. John, Centre for Women’s Development Studies (CWDS)
25. Virginia Saldanha, Indian Christian Women’s Movement,

    Manak Matiyani (Executive Director)- YP Foundation
26. Vinita Sahasranaman (Director of Programs and Advocacy)- YP Foundation
27. Souvik Pyne (Advocacy Officer)m YP foundation
28. Nandita Shah, Akshara
29. Jyoti Mhapsekar, Stree Mukti Sanghathana
30. Dr Kamaxi Bhate, FASS
31. Adv Manisha Tulpule
32. Rashmi Divekar
33. Urmila Salunkhe, Akshara
34. Prasanna Invally, Pune
35. Kalpana mehta. Manasi Swasthya Sansthan, Indore
36. Chayanika Shah- LABIA
37. Anagha Sarpotdar
38. Chhaya Datar
39. Bishakha Dutta , Point of View
40. Meena Seshu, Sangram
41. Hema Pisal, MASUM
42. Anand Pawar, SAMYAK
43. Ravindra R P – Member, Drafting Committees (Mah. PNDT Act, PNDT Act, PCPNDT Act)
44. Jaya Menon, Women Networking
45. Sanober Keshwaar
46. Vijay Hiremath
47. Shalini Mahajan, LABIA
48. Rohini Hensman, writer and activist
49. Lubna Duggal , Forum for Medical Ethics Society
50. Narendra  Gupta, Prayas
51. Aapurv Jain, Gender rights activist
52. Burnad Fatima- SRED
53.  Sandhya Gautam, NAMHHR
54. Jashodhara Dasgupta – Sahayog
55. Sarojini – Sama
56. Leni Chaudhuri, JSA
57. Anuradha Pati
58. Anita Ghai –  Feminsit  and Disbaility Rights Activist
59. Ritambhara, Nazariya
60. Preet Manjusha, SAMYAK
61. Neeraj Malik
62. Sejal Dand, ANANDI
63. E.Premadas- CHSJ
64. Suhas Kolhekar- NAPM
65. Sitaram Shelar
66. Sneha Giridhari, SWISSAID, India
67. Sapana, BGVS
68. Brinda Bose, JNU
69. Reena Martins, Mumbai
70. Hasina Khan, Bebaak Collective
71. Pouru Wadia, SNEHA
72. Vibhuti Patel, SNDT
73. Kajal Jain,MASUM,Pune
74. Mohan Rao, JNU
75. Suneeta Dhar, activist
76. Vasavi Kiro
77. Abhijit Das,CHSJ
78. Vivekanand Ojha
79. Jaya Sagade , activist
80. Ujwala kadrekar
81. Uma V Chandru, WSS
82. Archana More ,Karve Institute of Social Work
83. Pradnya Shende
84. Shakuntala Bhalerao, JSA
85. Shubhangi Deshpande
86. Vrinda Grover
87. Subhash Mendhapurkar, SUTRA
88. Manmohan Sharma,  health activist
89. Noorjehan  Safia Niaz, BMMA
90. Dolphy D’souza, Convenor, Police Reforms Watch
91. Adv Vijay Hiremath
92.  Nita Shirali, activist
93. Saumya Uma
94. Sugandhi Francis
95. Snehal
96. Kranti
97. Yasmeen, awwaze- niswan
98. Aruna Burte
99. Shobha, Stree Mukti Sanghathana
100. Mukta Srivastava, NAPM
101. Milind Ranade
102. Prof. Ujwala Masdekar, faculty of Karve Institute of social service
103. Panchali Ray. Jadavpur University. Kolkata.
104. Sonal Shukla, Vacha
105. Naureen, SNEHA
106. Richa Minocha , Simla
107. Jeevika Shiv, ANANDI
108. Radhika Desai, Hyderabad
109. Seema Kulkarni, SOPPECOM
110. Rimple Mehta
111. Ayesha Kidwai
112. Runu Roy

Gender Justice – Despite skewed sex ratio, conviction under PCPNDT Act rare

Despite India’s declining child sex ratio, as many as 30 states and union territories have not convicted even a single person for pre-conception and pre-natal diagnostic between 2011 and 2013, raising concerns about the poor implementation of the PCPNDT Act.

The five states which have worst child sex ratio (CSR) – Daman and Diu (618 girls per 1,000 boys), Dadra and Nagar Haveli (775), Chandigarh (818), Delhi (866) and Andaman and Nicobar Islands (878) – have also not punished anyone during the period.

The Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 was enacted to stop female foeticide and arrest the declining sex ratio by banning pre-natal sex determination.

Child sex ratio in India has reached an alarming low with 918 girls per 1,000 boys in 2011 from 927 in 2001, but not much seems to have been done to ensure strict implementation of the Act to deter female foeticide.

According to data available with the Health Ministry, only 32 people have been punished in the whole country as against 563 cases reported for conducting sex determination tests between 2011 and 2013.

The data shows that only four states convicted 13 people in 2013.

In 2012, eight persons were punished by three states and in 2011, 11 people by four states.

Punjab, which has one of the lowest CSR with 895 girls to 1,000 boys, has convicted only two persons in the period while it reported 52 such cases.

Haryana with 879 CSR registered 54 cases under the Act but no conviction took place.

Similarly, Delhi registered 10 cases but could not manage to punish anyone.

The phenomenon has spread to areas which were not known for disparity in CSR including tribal areas and eastern states, said a Women and Child Development Ministry official.

The trend was particularly acute in more developed areas of the country including metropolitan cities.

Non-implementation of the Act has been the biggest failing of the campaign against sex selection, the officialsaid.

http://www.business-standard.com/article/pti-stories/despite-skewed-sex-ratio-conviction-for-female-foeticide-rare-115051000106_1.html

Pune – ‘IVF ad for male child’ illegal under PCPNDT Act

By Mayuri Phadnis, Pune Mirror | May 30, 2015, 

Indira IVF centre in Viman Nagar has claimed the advert was not intentional (PICS: DHANANJAY HELWADE)

Activist serves legal notice to civil surgeon, PMC alleging fertility clinic promises baby ‘Krishna’ for all.

A private fertility clinic has been caught on the wrong side of law after its bid for publicity was alleged to be a promotion to beget a male child. An activist has sent a legal notice to the district civil surgeon of Ahmednagar as well as the Pune Municipal Corporation (PMC), urging them to take action against Indira IVF centre at Viman Nagar for putting gender specific words in an advertisement for their camp in Ahmednagar.

Ganesh Borhade, who sent the notice three to four days ago, informed Mirror, “The advertisement says ‘Nisantaata Bharat Chhodo’ (Childlessness Leave India). It’s a campaign for every house to have Lord Krishna playing in the yard. Here, they could have used a gender neutral word. However, these words point at a male child. This is in contravention of the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act.” For a case that falls under this Act, one can only approach the appropriate authority — a legal designation under the PCPNDT Act — in this case, the district civil surgeon to take suitable action. The reason Borhade sent a notice to PMC as well was because the IVF centre was under the civic body’s jurisdiction.

The advertisement had appeared in a prominent local daily in Ahmednagar on May 20. Subsequently, Borhade had sent a text message to the contact number provided. In reply, he was asked to visit Hotel Farhat on May 23 (last Saturday), where an appointment had been fixed for him in the morning. He, of course, didn’t pursue the appointment anymore.

Pointing to a general trend followed by clinics offering sex determination services, Borhade said, “They don’t inform you directly whether it’s a girl or a boy. They generally have male and female deities on either side of the wall. If it’s a girl child, they look upon the wall with the female god and pray and, in case of a male child, they pray to the male god. Such sign language is also prohibited by the PCPNDT Act.”

He has alleged that the IVF centre is covertly suggesting that it will help people to conceive a male child. “Why use the word Lord Krishna? Why not any other female goddess or, for that matter, just the word child?

This is leading people to believe that the clinic specialises in male children,” he stressed, adding that the authorities should have acted on their own accord, rather than wait for a legal notice.

When Mirror contacted the Ahmednagar civil surgeon, Dr S M Sonawane, he said, “I will immediately call for a copy of the newspaper and accordingly ask the state appropriate authority to take action. We will also give suitable replies to the legal notice.” On the other hand, PMC’s appropriate authority, Dr Vaishali Jadhav, informed, “We have sought an opinion from experts on this and will take action accordingly.”

However, Indira IVF centre insisted that the advert was a clear case of oversight, stressing that nothing was intentional. “We have strict norms when it comes to the PCPNDT Act. We support the Beti Bachao Andolan. Everywhere in the centre, and even on our letterhead, we have written that we do not practise prenatal sex determination here. We are originally based in Udaipur, so we think in Hindi. We did not think it would mean something like this when we wrote the ad. It was not our intention either,” said Nitiz Murdia, the clinic’s marketing head.

http://www.punemirror.in/pune/civic/IVF-ad-for-male-child/articleshow/47475916.cms

Modi’s shaky race to save India’s girls

IANS   

May 23, 2015 Last Updated at 12:12 IST

• 

Amritsar, May 23 (IANS/IndiaSpend) It’s a substantial but sparse two-room house, and flies infest the courtyard, buzzing ceaselessly around Manseerat Gill, 14 days old. Undisturbed by their buzzing, she sleeps peacefully.

For the next six years — thanks to Prime Minister Narendra Modi’s determination to fight the country’s bias against daughters — Manseerat’s well-being and survival will be the responsibility of a six-foot-tall man with piercing eyes and a full, flowing grey beard.

Ranjit Singh Buttar is a rare male gynaecologist here in this holy Sikh city, and as district health officer, he has many other tasks, including running rural health centres, delivering contraceptives and ensuring polio inoculations to every new born.

Amritsar is one of 100 Indian “gender-critical” districts — 10 are in Punjab, among India’s five richest states by per capita income — included in Modi’s “Beti Bachao, Beti Padhao (Save a daughter, educate a daughter)” programme, launched in January to fight the nation’s deep-rooted bias against daughters.

A poster for the ‘Beti Bachao, Beti Padhao’ campaign is outside the District Commissioner’s office in Amritsar.

“The discrimination against girls is an illness, an illness of the heart, which leads us to think sons are more important,” said Modi at the launch. “Even in feeding, a mother adds ghee to a son’s ‘khichri’ but will deny this to a daughter.”

Modi is not the first prime minister to realise that India is losing girls. While the 1990s saw three such programmes, since 2005 there have been 11 schemes, one following the other, to ensure that more girls — discriminated against at birth and in upbringing — are born, live, go to school and do not marry early.

Yet, the girls continue to disappear. About 2,000 girls die — aborted or starved, poisoned or otherwise killed after birth — every day in India, according to Women and Child Development Minister Maneka Gandhi, who provided this data in April. The estimates of women so missing range from two million to 25 million.

Gandhi said Beti Bachao, Beti Padhao — which, among other things, seeks to eliminate gender-based foeticide and ensure survival of the girl child — was already showing surprising results.

“Hundreds of girl children are being thrown into orphanages in these 100 districts,” she told NDTV in an interview. “I was in Amritsar and the DC (Deputy commissioner) told me they had received 89 girls this month. I thought this is a weird statistic.”

It is. The minister got things wrong, INDIASPEND’s reporting indicates. The 82 girls she cites were abandoned in Amritsar not since January but since 2008, not as an impact of ‘Beti Bachao, Beti Padhao’ but as a general malaise of giving up daughters.

What Amritsar did since 2008 was to collect these abandoned children as part of a “Pangura” (cradle in Punjabi) programme, housed in an International Red Cross building. Parents can leave children at a cradle here, instead of on the road or in fields. When a child arrives, a bell alerts staff, who place it in a hospital and later with adoption agencies.

Pangura, which has a physical cradle placed in the International Red Cross building, has collected 82 abandoned girls in Amritsar since 2008.

Pangura received 92 children since 2008, 82 of them girls. The scheme is a reasonable success, but 82 girls saved over seven years will not impact skewed gender ratios. Besides, experts said abandoning daughters is no better than killing them.

PM Modi’s “Beti Bachao, Beti Padhao” programme appears to focus on changing mindsets. Its first step is to spread awareness: Mobile vans and material have reached districts.

What has not reached districts is money.

Finance Minister Arun Jaitley set aside Rs.100 crore for ‘Beti Bachao, Beti Padhao’ in the 2015-16 budget. Each district in the hundred gender-critical districts will get Rs.55 lakh for 2014-15, followed by Rs.31 lakh in 2015-16.

Buttar’s office is yet to get the first tranche of funds, two months after Jaitley’s announcement. Minister Gandhi’s office did not respond to INDIASPEND’s interview request.

If Modi’s programme has to impact pint-sized Manseerat, money, while important, is not the only factor. The effort, as past experience shows, cannot be piece-meal, split by bureaucracy, confused and uncoordinated.

India’s political history is littered with programmes to protect girls such as Manseerat. Dhanalakshmi. Bhagyalakshmi. Rajalakshmi. Ladli. Balri Rakshak Yojana. Indira Gandhi Balika Suraksha Yogana. Balika Samridhi Yojana. Beti Hai Anmol. Mukhya Mantri Kanya Suraksha Yojana. Mukhya Mantri Kanyadan Scheme. Most have been of limited or no efficacy, hobbled by a rigid array of conditions and uncertainties about why they have not worked.

“(Our) findings point to the need to simplify the eligibility criteria and conditionalities, and also the procedures of registration under each of these schemes,” noted a United Nations Population Fund study.

“Though year after year substantial financial resources have been directed towards promoting these schemes, there is a lack of field-level monitoring. In the absence of a proper grievance-redressal mechanism, the challenges often multiply. In some states, the lack of coordination across different sectors such as health, education and social welfare is adversely affecting programme implementation.”

Implementing officers complained that other departments did not cooperate with them. In some states, tardy coordination between financial institutions, such as banks and insurance companies, and implementing departments delayed bonds, certificates and bank accounts. In most schemes, the involvement of local village institutions, NGOs and women’s groups was “rather limited”, as the study noted.

The Ministry of Social Welfare has been the nodal ministry for some schemes. State governments run parallel programmes they can tom-tom at election time. The “Beti Bachao, Beti Padhao” programme, managed by the Ministry of Women and Child Development, will be implemented through deputy commissioners and top bureaucrats in each district.

“The effort is fragmented. You need one entity that is then also responsible for results,” said Buttar, whose office has written a plan for the scheme’s implementation covering Amritsar district’s 15 towns and 739 villages, home to 2.5 million people, 8.9 percent of Punjab’s population.

In Punjab, fewer than 850 girls survive to reach the age of six, 68 less than India’s already poor average of 918 daughters to a 1,000 sons. Neighbouring Haryana has 12 districts in the programme. Maharashtra matches Punjab with 10 districts, where fewer girls are allowed to be born or survive compared to India’s average.

What Modi is up against is people’s desire for a male heir. “How can you expect daughters-in-law if you don’t have daughters?” Modi said at the public gathering on the launch of his scheme in Panipat, Haryana.

Not only do disappearing girls take a toll in terms of fewer number of brides and trafficking of women, India loses workforce talent and diversity. For instance, economists have struggled to explain the fall in women in India’s workforce — contrary to global trends — over the 2000s, despite a rise in industrialisation and prosperity.

“Labour participation, same emoluments for same work, nutritional standards–they paint a grim picture,” said Krishna Kumar, a Delhi University professor who has researched discrimination against girls.

Government programmes, he said, are populist but cannot trigger social change.

In Nangli village in Amritsar, Manseerat’s mother, Pinky, fresh-faced and 23, looks too young to have had two children. Both are daughters.

Pinky, 23, looks too young to have two children. Since both are girls, she might try to conceive again in the hope of having a son and “completing the family”.

Thanks to the presence of a trained health worker under the Rural Health Mission run by Buttar’s office, Manseerat was born in a hospital and not at home. She will also be innoculated. Her family of nine — sister, parents, grandparents, three unmarried uncles — live on a monthly income of Rs 15,000.

Pinky, who uses one name, has a ready laugh but it is clear she is disappointed with Manseerat.

“Could have been a son,” she said. “Her father says a son will complete the family.” Pinky’s conversation with her mother-in-law indicated she would give motherhood another shot–in hope of a son.

It is this desire for a male heir that Buttar’s office is up against.

Buttar, whose office keeps a record of gender ratios in Amritsar, said: “I am an eternal optimist; no effort goes waste.”

The optimism, in many ways mirroring Modi’s, will go only so far. To begin with, programmes for the girl child need to be brought under one roof, those involved in the programme said. The implementing department or ministry should have money, manpower and jurisdiction to use the carrot and stick: give incentives to have girls, hold awareness drives to change mindsets and prosecute under the law that criminalises female foeticide.

If the office of district family welfare officer is to be given the key responsibility for Modi’s mission, then that office needs to be rid of diverse tasks, such as running rural health clinics, distributing contraceptives and family planning programmes.

Amritsar’s district family welfare office, headed by Ranjit Singh Buttar. It is already overstretched, serving a population of 2.5 million across 15 towns and 739 villages.

Over two years, 2011-2013, no more than 32 people were punished under the law that criminalises pre-birth gender testing; gender-testing cases reported stood at 563, according to the Press Trust of India. Thirty states have not had even one conviction under this law, noted the Supreme Court of India.

Outside Buttar’s cabin, junior officer Tripta Sharma explained how she successfully played a decoy pregnant woman. She was sent to an ultra-sound clinic that was alleged to have violated the law by offering gender tests. The police made an arrest. But eight court appearances over a year and a half exhausted Sharma. The court dismissed the case.

“We are doctors, not lawyers,” said Buttar, who said his office would appeal the acquittal. He frequently raids ultrasound clinics, checking a third of them by rotation. With reluctant decoys, all his office has by way of checks on doctors and clinics is a document called “Form F”, on which clinics must declare the purpose of the pre-birth test and the doctor-in-charge.

Academic research on female foeticide — research which is dated by now, as foeticide peaked during the 2000s and then dropped off – -has discouraging findings. Female foeticide increases with easy access to medical facilities, ability to pay doctors and the availability of good roads, which cut down travel time, according to demographer Ashish Bose in his book-sex-selective Abortion in India, based on fieldwork in Punjab, Haryana and Himachal Pradesh.

In short, progress means more girls could die. Modi’s programme could mean a lot to Manseerat’s future–but not in its current form.

http://www.business-standard.com/article/news-ians/modi-s-shaky-race-to-save-india-s-girls-special-to-ians-115052300256_1.html

 

Eight wards shame Mumbai with skewed sex ratio at birth

 

 

ByMalathy Iyer | Feb 20, 2013, 06.57 AM IST

 

MUMBAI: While the civic administration’s statistics show that the sex ratio at birth for Mumbai has improved slightly in the last one year, experts are not too impressed. They say that the administration has to sustain such results over a decade before there is any significant change in the city’s or even India‘s skewed sex ratio.

 

A senior civic official, however, insisted that any increase, however small, is a step in the right direction.

Both Maharashtra and Mumbai, in particular, have shown an anti-girl bias in the last two census.

Civic figures show that the sex ratio at birth – the number of girls born per 1,000 boys – for 2012 was 922:1,000, up from 917 in 2011. But a closer look at the ward-wise break-up shows that eight wards have registered a dip in sex ratio at birth.

In south Mumbai’s Pydhonie area, for instance, only 860 girls were born for every 1,000 boys last year.

In 2011, the locality was placed better at 981 girls per 1,000 boys. In fact, the Pydhonie-Byculla-Parel belt of the island city, the prosperous Goregaon-Malad-Kandivli belt of the western suburbs and the populous belt from Bhandup to Ghatkopar in the eastern suburbs have all shown a dip in sex ratio at birth.

A L Sharada from the NGO, Population First, said it would be premature to think that such marginal increase is of any significance. She added that easy access to medical tools such as ultrasound machines, which can illegally be used to find the sex of the unborn child, was responsible for the skewed sex ratio.

“The cost of living in Mumbai is high. People want small families and still have a great desire for a male child. This is true in both the slums as well as non-slum pockets of the city,” she said.

Sharada added that the BMC should now study why certain areas, such as Parel in south central Mumbai, have consistently registered a lower-than-city-average sex ratio.

Her NGO had earlier conducted a survey to underline poor adherence among ultrasound clinics of the rules laid down under the Pre-Conception and Pre-Natal Diagnostic Technique (Prohibition of Sex Selection) Act.

“Until there is stringent conviction for offenders and better gender sensitivity among the population, the problem of skewed sex ratio at birth cannot be solved,” said Kamayani Bali Mahabal, Forum Against Sex Selection.

 

 

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• BMC to beef up vigilance in wards with dismal sex ratio (fassmumbai.wordpress.com)

 

Sex Selection -Illegal ads on #Google in contravention PCPNDT ACT

To

Corporate communication

Google, India

2 November 2012

Complaint—Regarding illegal ads on Google in contravention PCPNDT ACT

The Pre-Conception Pre-Natal Diagnostic Techniques (PCPNDT) Act has banned the promotion or advertisement of services that allows one to choose the sex of one’s baby. Yet, Google is carrying advertisements of  the link of IVF that leads to websites that offer these services. Each time a person clicks on the ad, these companies makes money.

The Indian law against sex selection is comprehensive.   Section 22 defines advertisement and Section 26 states the penalties for violation by Companies.  They are given below:

Section 22:  Prohibition of advertisement relating to pre-natal determination of sex and punishment for contravention.

1.    No person, organization, Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic, including clinic, laboratory or centre having ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus or sex selection shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any form, including Internet, regarding facilities of pre-natal determination of sex or sex selection before conception available at such centre, laboratory, clinic or at any other place.
2.    No person or organization including Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement in any manner regarding pre-natal determination or preconception selection of sex by any means whatsoever, scientific or otherwise.
3.    Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees.

Explanation.—For the purposes of this section, “advertisement” includes any notice, circular, label, wrapper or any other document including advertisement through Internet or any other media in electronic or print form and also includes any visible representation made by means of any hoarding, wall-painting, signal, light, sound, smoke or gas.

26. Offences by companies.

(1) Where any offence, punishable under this Act has been committed  by a company, every person who, at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where any offence punishable under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.–For the purposes of this section,– (a) “company” means anybody corporate and includes a firm or other association of individuals, and

(b) “director”, in relation to a firm, means a partner in the firm.

The Indian Parliament enacted a special law because the medical community was not self-regulating these serious violations of medical ethics. The practice of sex selection is prohibited while foetal sex determination is regulated.

The PCPNDT Act applies to advertisements and content that advertises sex selection or foetal sex determination  methods/procedures/techniques.  Any form of advertising in India that promotes techniques, products or procedures of sex selection, sex determination is a violation of the law.

In 2008, theSupreme Court of India had served notices to you,  yet  violations of the law continue with impunity and  in response Google had issued a statement saying  “The Google advertising program is managed by a set of policies which we develop based on several factors, including legal requirements and user experience. In India, we do not allow ads for the promotion of prenatal gender determination or preconception sex selection. We take local laws extremely seriously and will review the petition carefully.”

But once again sex selection ads are mushrooming in your search engine in India  and the   continued violation in the Indian Internet space by  your company is  shocking.

Although the google policy when you click here http://support.google.com/adwordspolicy/bin/answer.py?hl=en&answer=176072

India

Product	Allowed?	Details
Dowryrequests	Not allowed	Google doesn’t allow ads or landing pages that promote dowry requests or the offering or sale of dowry. “Dowry” means any property or valuable security given by the bride to the groom for marriage.
Doctor, lawyer, or accountant services	Not allowed	Google doesn’t allow ads for services offered by doctors, lawyers, or accountants.
Gender or sex selection	Not allowed	Google doesn’t allow ads or landing pages that promote the pre-natal determination of the gender of a child, or pre-conception selection of sex.
Infant food, milk substitutes, feeding bottles	Not allowed	Google doesn’t allow ads or landing pages that promote or encourage the use of infant food, milk substitutes, or feeding bottles.

When  you  search of gender selection or sex selection on your search engine  you  get a sponsored ad

When you click on the compnay link you get

and further the page tells you hoe they can help you if you live outside Dubai

There are more sites on google search as well violating the law like genselect.com,

wherein you can also order the gender selection kit online

I demand you immediately remove gender /sex selection ads from google search engine in India

Adv Kamayani Bali Mahabal, for Forum against Sex Selection (FASS) Mumbai

cc 1) Director, PNDT Division, New Delhi

2) Cybercrime cell, Mumbai

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• Can’t bachao beti with just monetary sop, say experts (fassmumbai.wordpress.com)

 

FASS protests Maharashtra govt’s plans to slap murder charges for sex selection

We, the undersigned women’s organizations, strongly protest the statement made by the Health Minister, Mr Suresh Shetty who wants to recommend to the Central Government the application of section 302 (murder charges) against woman, husband, relatives and the doctors for cases of “sex selection”.

According to the PCPNDT Act, sex selection (the correct legal term) itself is a crime and the doctors involved should be punished as per the provisions under the act. The pregnant woman on whom sex selection is performed or undertaken is not an offender according to the act. This should be upheld in Maharashtra.

We have always demanded the continuous and strict monitoring of sonography centers, hospitals and nursing homes and strict action against all unlicensed centers. Instead of concentrating on this issue and doctors who misuse medical technology, the discussion in the assembly focused on abortions. According to the MTP Act, abortions are a women’s right. We fear that applying section 302 (IPC) would curtail women’s access to safe abortion services.

We demand that the law deals strictly with those who perform the crime of sex selection. The political protection to erring doctors is a serious problem in Maharashtra and the government should take steps to put an end to political interference in implementation of PCPNDT Act.

AIDWA
Akshara
Committed Communities Development Trust Population First
Population first
Stree Mukti Sanghthana

Savitribai Phule Gender Resource Centre
Forum Against Sex Selection

FASS submits Memorandum to the CM Maharashtra regarding actions on sex selection

contact–fassindia2011@gmail.com

 

 

7th  June, 2012

To,
Honourable  Shri. Prithviraj Chavan,

Chief Minister ,Maharashtra  State

Mantralay Mumbai
Subject : Appropriate actions about sex selection.

Respected Sir,

Forum against Sex Selection (FASS) is a network with over 50  Ngo’s and individual members . FASS has conducted interactive workshops to discuss its perspective and plan strategies to take the FASS campaign forward and to understand challenges to implementing the PCPNDT Act. Apart from improving the sex ratio, the main thrust of the FASS campaign is to strengthen the overall position of women in our State and to enable women to live with dignity, in a non-discriminatory environment.

We appreciate your efforts to stop the violations of PCPNDT Act and the brazenness of the doctors conducting sex determination tests and subsequent illegal abortions.

We are deeply concerned & apprehensive of the dwindling sex ratio all over Maharashtra and demand serious attention of the Government in protecting the girl child and all the women related health issues.

As you are aware  the women’s organizations have been trying to draw your attention  to female feticide practices in various districts of Maharashtra, in some districts such as Beed, Parbhani, Kolhapur etc. the sex selection  has reached to disproportionate  heights resulting in alarming discrimination of the girl child. In the light of the heinous crimes being committed against women and the girl child we make following demands and suggestions and request you to give priority to this issue.

a ) We demand that utmost care be taken to implement the PCPNDT Act & punish the guilty persons causing, committing , assisting  ins ex selection  ; however care should be taken to not punish the victim women.

b ) The Government must carefully examine the registration of  sonography machines and the records thereof. The doctors or the hospitals or clinics violating the provisions  of PCPNDT act be brought to the Book &  due legal action be taken immediately.

c ) The medical shops be directed to not to sell drugs & injections related to abortions & contraception without prescription of authorized doctors.

d) Immediate action against erring be taken. The  doctors and clinics whose sonography  machines are once sealed may not be allowed to use the same till their cases are over.

e ) More facilities be made available in Govt. and municipal hospitals for pregnant women including  sonography,  contraceptives, abortions and other medical issues.

f ) The women activists and organizations committed to the cause of prevention of sex selection and reproductive  rights of women be included in the committees under PCPNDT Act.

g ) We demand that under no circumstances the right to abortion as stipulated in the MTP Act be curtailed.

h ) We draw your attention to the recent  directive issued by State Chief Secretary Jayantkumar Banthia dated 4 June 2012 to curb sex selection cases. We demand that proper discussion be made with women activists and organizations before implementing the same.

I) Under the Medical Termination of Pregnancy Act, 1972. Safe abortion within the provisions of the MTP Act is the right of every woman. Access to safe abortion services has remained a challenge in India. An estimated 6.7 million abortions per year are performed in institutions not recognized by the government  India continues to have among the highest maternal mortality rates in the world (254 per 100,000 live births per year). Up to 13% of these are caused by unsafe abortions, which is the third leading cause of maternal deaths

j ) There is also a need to monitor the functioning of Appropriate Authorities and ensure their proper functioning in coordination with  the women organizations working on the issue of gender discrimination.

Limiting access to safe abortion methods only pushes women towards unsafe methods, thereby endangering their health and survival. Monitoring women buying pills from pharmacies is regressive as it undermines the confidentiality aspect of abortion and can lead to harassment of women at the hands of officials. Such regulations are discriminatory and curtail autonomy of women over their own body, right to dignity and right to benefit from advances of science, medicine and technology.

Sex selection is  a phenomenon which emerges from gender discrimination and socio-economic bias. All efforts to prevent  sex selection must seek to address issues of gender discrimination, but not further constrain women’s access to safe abortion services.

We urge the  Government to focus on better implementation of the PCPNDT Act with diligent monitoring and supervision of technologies that have the potential to be misused.

We hope you will pay attention to those very urgent  demands & take appropriate steps.
Yours sincerely,

ForumAgainst Sex Selection (FASS), Mumbai
Core Group members
Dr. Kamakshi Bhate, Savitribai Phule GenderResource Centre (SPGRC)
Dr. A.L. Sharada, Population First
Dr. Nandita Shah, Akshara
Jyoti Mhapsekar, Stree Mukti Sanghatana
Adv Kamayani  Bali Mahabal,  Human Rights  Lawyer and  Activist
Lakshmi Menon, Women Networking
Pramod Nigudkar, Committed Communities Development Trust (CCDT)
Sneha Khandekar, SPGRC
Vaijayanti Bagwe, CCDT

Copy to :

Shri. Suresh Shetty
Honorable Minister of Public Health and
Family Welfare
Maharashtra State Government, Mumbai.

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Sex determination tests happen not only in India but also in West with sizable Indian population

English: Young women looking at the Bay of Bengal at Puducherry, India Français : Jeunes femmes regardant le golfe du Bengale à Pondichéry, Inde (Photo credit: Wikipedia)

3 JUN, 2012, SAIRA KURUP,TNN

In mid-April, a reproductive clinic’s ad appeared in a newspaper for the Indo-Canadian community in British Columbia, inviting readers to “create the family you want, boy or girl, for family balancing” with the help of pre-conception sex selection. The two children in the ad wore ethnic Indian clothes.

The newspaper withdrew the ad following public outrage, while the clinic was accused of targeting cultural attitudes that perpetuate discrimination against girls. But the writing was on the wall.

For long, sex selection has been an  issue identified with countries like India and China where the usual rationales given include dowry, patriliny (descent or inheritance by the male line), one-child policy or dependence on kids’ support in old age. But now, studies in Canada, Norway, US and UK show the persistence of this cultural attitude within the diaspora too.

Dr Shiv Pande, a Liverpool-based general practitioner and a former treasurer of the General Medical Council in Britain, says: “As they say, Indians, wherever they go, carry their curry, customs and cultural baggage. Sex selection of the foetus is quite common among British Indians, though not known widely.”

In 2007, two Oxford academics, Sylvie Dubuc and David Coleman, carried out a study of the sex ratio, using the annual birth registrations in England and Wales between 1969 and 2005, and found that there was “indirect quantitative evidence of prenatal sex selection against females performed by a small minority of India-born women in England and Wales”. Interestingly, the study found no such evidence regarding Pakistan-born and Bangladesh-born women living in England and Wales.

Says Sylvie, “Based on numbers from my previous work, I estimated the number of missing baby girls for the period 1990-2005 to be about 1500. Note that these figures relate to immigrant (i.e. India-born ) women only (and not UK-born women of Indian origin).”

In February 2012, an investigation by the UK’s Daily Telegraph newspaper discovered that some clinics were prepared to carry out such abortions with few, if any, questions asked. Likewise, the British Columbia newspaper ad came just days after a study published in the Canadian Medical Association Journal (CMAG) analyzed 766,688 births in Ontario and found mothers born in South Korea and India were more likely to have boys for their second child.

When it came to having a third child, the male-to-female ratio grew even more skewed for India-born mothers, who had 136 boys for every 100 girls (the world average ratio is 105:100).

Lead researcher of the study and scientist at St Michael’s hospital in Toronto, Joel G Ray, says, “Women from India and South Korea who had previous children were significantly more likely to give birth to males. For India-born women with more than one prior child, the male-female ratios were even more pronounced.”
Ray, however, cautions that “we (or anyone else) do not have direct evidence this is due to foetal sex selection.” But Mahvish Parvez of the Indo-Canadian Women’s Association in Edmonton, says, “There is a strong suggestion that the skewed ratio is due to sex-selective abortion. We know that son preference strongly persists in immigrant communities.”

 

Many western nations have banned sex selection for non-medical purposes – the US is a notable exception. It is a profitable business there, with gender determination technologies easily available, both online and offline, and clients flying in from the UK, Australia and probably India too.

In 2006, two professors from Columbia University, Douglas Almond and Lena Edlund, examined the year 2000 US Census data and found that while more boys than girls are born by a ratio of 1.05 to 1 among families of Chinese, Korean and Indian descent, the ratio increased if the first child was a girl. If the first two children are girls, the ratio was 50% greater in favour of boys.

It’s no surprise to community activists. Maneesha Kelkar, women’s rights activist and former executive director of Manavi, a New Jersey-based organization, remembers taking a call from a woman who said she was sitting on the operating table in an abortion clinic and was being forced to have an abortion.

“She didn’t tell me if the foetus was a girl, or why she was being told to have the abortion. When I asked what was preventing her from walking out, she said, ‘My in-laws are in the waiting room’ .”

Following such alarming reports of immigrant cultural behaviour, US Congressman Trent Franks had introduced a bill to ban sex-selective abortions (the Congress rejected it on Thursday). Kelkar feels the language around the Bill was “extremely anti-immigrant, anti-women”.

It “was going to target the immigrant community and add to the already anti-immigrant feeling in the US. It is unlikely to prevent Indian families from aborting female foetuses. You cannot legislate away a social issue.”

The negative publicity for the Indian community is one reason why some researchers caution against jumping the gun. Prabhat Jha, founding director of the Centre for Global Health Research, Toronto, says, “We need more evidence to confirm what is a suggestive pattern.

The Ontario estimates suggested selective abortion is still uncommon – about 1% of all births to South Asian-born women. Even in India, selective abortion is about 2% of all births. We need to be careful about stigma – do we want the 99% of South Asian families who don’t chose selective abortion in Ontario (if true, and that is not certain) to have a label as such?” He also warns that “we need to be very careful about putting any barriers that prevent women, especially newly migrant women who have low use of health care, from accessing good technologies (like ultrasound).”

The problem is that many immigrants live within their own social enclaves and may face the same social pressures as they would in India. Kelkar says, “I have heard so many women say, “Let my first child be a boy, then I won’t worry about the next.” It’s all about undervaluing the girl child, whether it is Surat, Southall or San Francisco.

(With inputs from Vrushali Haldipur in New York and Ashis Ray in London)

Related articles

• Satyamev Jayate’s -Ardh Satya (fassmumbai.wordpress.com)
• Sex selection ad targets Indo-Canadian community (calgaryherald.com)

Abortion Without Borders: Standing with Polish Women

By: Merle Hoffman |

Protesters holding signs during a rally in Poland on October 27th, 2020. Photograph: Kasia Strek

Letter of Support:

November 4th, 2020 To the Great Women of Poland, The world is in awe of your principled activism and is filled with admiration for your courage and commitment. American Feminists stand with you. We salute and support you with love and pride. You have marched by the thousands in response to the October 22nd Tribunal ruling which denied abortion even in cases of fetal abnormality in what has been called the largest demonstration in the country since the fall of communism. Ignoring threats of prosecution, violence from the Right, and the dangers posed by a surging Coronavirus, while displaying symbols of Red Thunderbolts, Hangers and Umbrellas, your resistance intensifies daily. You have challenged formerly “untouchable” institutions and are a stellar example of what people everywhere need to do in the fight against oppression and for women’s freedom. Julia Przylebska, President of the Tribunal, has stated that allowing abortions in cases of fetal abnormality legalizes “eugenics” and because the Polish Constitution guarantees a right to life, terminating a pregnancy based on the health of the fetus amounts to “a directly forbidden form of discrimination.” This latest ruling imposes a near total ban in Poland that already has some of the strictest abortion laws in Europe. You have had the courage to say no to this egregious diminishment of women’s humanity and moral agency. Legal abortion is an integral core of women’s health and is the necessary condition for women’s freedom. We all know that nothing stops abortion – no law, no government, no religious authority. Making abortion illegal only makes it dangerous and deadly. You demand legalization of abortion in the name of all your daughters, mothers, sisters, and grandmothers who alone and in pain lost their lives in back alleys or on dirty kitchen tables for their right to choose. Women of Poland-We stand with you and attest that Women’s Rights are Human Rights. Women are full moral agents with the right and ability to choose when and whether or not they will be mothers. Abortion is a choice made by each individual for profound personal reasons that no man nor state should judge or control.  The right to make reproductive choices is women’s legacy throughout history and belongs to every woman regardless of age, class, race, religion, ethnicity, or sexual preference. Abortion is a life-affirming act chosen within the context of women’s realities, women’s lives, and women’s sexuality. Abortion is often the most moral choice in a world that frequently denies healthcare, housing, education, and economic survival to women. Women’s rights remain in a state of emergency. If not now, when? If not you–then who? We stand with you in solidarity.  MERLE HOFFMAN Founder/President/CEO Choices Women’s Medical Center PHYLLIS CHESLER Author,Co-Founder, National Women’s Health Network, Association of Women in Psychology GLORIA STEINEM Activist and Author NAOMI WOLF Author LORI SOKOL, PhD. Executive Director/Editor-in-Chief, Women’s eNews JANE MANNING Rape Survivors Advocate DANIELLE BELTON Editor-in-Chief, The Root MONA SINHA Board Chair, ERA Fund for Women’s Equality; Board Chair, Women Moving Millions SUSAN HERMAN President ACLU (American Civil Liberties Union) Recipient Chair of the inaugural Ruth Bader Ginsburg Professor of Law PAULA J. CAPLAN, PhD. Associate Professor, Hutchins Center for African and African American Research Harvard University JUDY NORSIGIAN Board Chair, Our Bodies, Ourselves, on behalf of the Board and Founders KRISTEN BROWDE Member of the Board of Directors of the LGBT Bar Association of Greater New York, Equality NY and the National Transgender Bar Association      BAHAR JALALI                   Founder of the First Women and Gender Studies Program in Afghanistan SUSAN BENDER Matrimonial Lawyer FRANCES KISSLING President, The Center for Health, Ethics and Social Policy Washington, DC JAMIA WILSON Executive Director & Publisher, Feminist Press    City University of New York JUDITH LEWIS HERMAN M.D. Professor of Psychiatry, Harvard University (part-time) ROBIN TYLER Executive Director, Equality Campaign HEIDI L. SIECK CEO/Co-Founder #VOTEPROCHOICE JODY RAPHAEL De Paul University College of Law ANA OLIVERIA President & CEO, New York Women’s Foundation HELEN HARDACRE Professor of Japanese Studies Harvard University MARCY SYMS President, Sy Syms Foundation Recent Chair of the Women’s Equality Fund ABIGAIL McGRATH Founder of Renaissance House, a retreat for writers on social issues BREANNE FAHS Professor of Women and Gender Studies, Arizona State University AMY FERRIS Author, Screenwriter, Playwright SHARON NELSON CEO at Civically Re-Engaged Women (Crew) TALI FAHARDIAN WEINSTEIN Candidate for Manhattan District Attorney AVIVA CANTOR     Feminist and Zionist activist, author. BARBARA JONES Author, anthropologist DR. SHULAMIT MAGNUS LINDA STEIN Sculptor, Founding President of HAVE ART: WILL TRAVEL DAPHNE PATAI Author, Professor of Languages, Literatures and Culture University of Massachusetts, Amherst JENNIFER BAUMGARDNER Dottir Press NANCY S. ERICKSON, ESQ. Attorney at law Brooklyn, NY JODY RAPHAEL DePaul Universtiy College of Law MARILYN P SAFIR Professor of Psychology and Women’s Studies University of Haifa ZSUZSANNA BUDAPEST Author and Wise Woman MANDY SANGHERA International Human Rights Activist, UK MARTHA SHELLY Novelist, poet AMY SCHOLDER Producer DISCLOSURETHEMOVIE.COM KARYN GERSHON Project Kesher MAX DASHU  Director, Suppressed Histories Archives CLAIRE MOSES University of Maryland KATHY SCARBOROUGH Co-editor of MeetingGroundOnline.org EVELYN SHEPERD Choreographer, dancer. SANDY RAPP Feminist Musician FRAN LUCK Pacifica Radio WBAI NAOMI WOLINSKY Grandmother PHYLLIOS KROFF LENORE WALKER Psychologist and Author, “The Battered Woman”

Covid- 19 – AIDWA Demands Withdrawal of the Order on Suspension of PcPNDT Rules

AIDWA  strongly opposes the unjustified move of theDepartment of Health and Family Welfaresuspending rules 8,9 (8) and Rule 18A under the PcPNDT Act, ostensibly due to the Corona Virus pandemic.This suspension goes against the main purpose of the Act to stop sex selection by means of certain basic and vital compliances that genetic labs and clinics etc have to follow in keeping records and submitting these for scrutiny to the appropriate authority and for re- registration. AIDWA states that this retrograde step goes against the principles and law of delegated legislation which only allows the Centre to modify rules and then place it before parliament for scrutiny.

Rule 8 deals with the application for re-registration of a genetic lab and clinic includingan ultra sound lab by the AA (Appropriate Authority).The AA after enquiry and examining whether the clinic etc has been complying with the PcPNDT Act and rules,can renew the registration for 5 years.The suspension of this rule throughout the country would mean that clinics and genetic labs can carry on functioning without any scrutiny.

Rule 9(8) states that each genetic or ultra sound clinic or imaging centre etc shall send a complete report of allpre-conception and pregnancy-related procedures conducted by them to the AA every month.It is not understandable why this rule has been suspended and why the clinics etc should not send a complete record of pregnancy-related procedures,if any, carried out by them.This is the only scrutiny that these labs are subjected to,to assess their adherence to the basic rules and to ensure that sex selection is not being carried out by them. The PcPNDT Act mandates the keeping of such a register. If it was felt that the labs/clinics would not be able to send their reports in time, it should have been made clear to the genetic labs etcthat the reporting procedure has still to be complied with after condoning a certain delay.Similarly Section 18A not only requires the AA to send quarterly reports to the Government but also to maintain full information of all the registrations in the specified Form H. Why should this rule have been arbitrarily suspended?

The suspension of the PcPNDT Rules could be misused by unscrupulous sections to conduct sex determination tests freely.The Central Government has suspended these rules till 30th June. But there have been continuous attempts in the recent past to weaken the Act. We fear that this can easily be extended by the Central Government on some pretext.AIDWA demands that the suspensions be revoked by the Central Government to stop the dilution of the act in any manner.

Malini Bhattacharya                  Adv Kirti Singh                                                    Mariam Dhawale

   President                                  Legal Advisor                                                  General Secretary

Gujarat Court rejects 13-yr-old rape victim’s plea for abortion

22-week pregnant victim denied permission, citing pendency of Medical Termination of Pregnancy (Amendment) Bill, 2020, in the Parliament and medical reasons; her mother had sought abortion on grounds of her tender age

Ahmedabad Mirror Bureau
amfeedback@timesgroup.in
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Ahmedabad City Civil and Sessions court on Monday refused 13-year-old rape victim permission to terminate her pregnancy. She had fallen victim to her maternal uncle in Ranip area of the city and her mother had approached the court seeking her abortion. The court cited pendency of the Medical Termination of Pregnancy (Amendment) Bill, 2020, in the Parliament and medical reasons for turning down the plea.

Additional sessions judge Vinod Kalotara observed: “As per medical opinion, the victim carries 22-week foetus and a major surgery may be required to terminate it. Taking the prevalent laws into consideration, had the victim been carrying a 20-week foetus permission could have been granted. The bill that proposes termination of pregnancy up to 24 weeks, from present 20 weeks, is pending in the Parliament and hence it is not in the interest of justice to give the victim permission. So, this court rejects the plea by victim’s mother.”

Advocate G S Solanki appeared on behalf of the victim’s mother. Looking at the sensitivity of the case, public prosecutor Sudhir Brahmbhatt and additional public prosecutor N R Lodha made the appearance for the State.

The plea of the victim’s mother said: “She is just 13-year-old and too young to be a mother. Abortion is necessary to save the future of the victim. Looking at her physical health, delivery is risky for both the mother and the child she’s carrying. Hence permission for abortion should be granted.”

Incidentally, at the time of filing the plea the victim was 21-week pregnant. The court promptly heard the matter and asked Ranip police to submit a medical certificate, report on her medical-mental condition and whether abortion was possible. Ranip police submitted civil surgeon’s certificate in the court on Monday after which court denied the permission.

As per the medical certificate issued by medical officer of Civil Hospital Ahmedabad, a major surgical operation may be required for termination of pregnancy. “In view of fibrosis in vaginal canal due to sepsis, a very young age and possibility of failure of medical termination of pregnancy, a major surgical operation (hysterectomy) may be required,” the medical opinion read.

Medical Termination of Pregnancy (Amendment) Bill, 2020

The Bill, which was okayed by the Cabinet on January 29 this year, proposes to allow medical termination of pregnancy up to 24 weeks from present 20 weeks. It will be presented in the Parliament in the second-half of its budget session between March 2 and April 3. It intends to allow women terminate pregnancy on medical, humanitarian and social grounds. According to the Union government, the Bill will ensure well-being and safety of women.

Law tweak may make it easier for single women to abort too

Cabinet May OK Changes To MTP Act Today

:

The Union cabinet is likely to approve changes in the Medical Termination of Pregnancy (MTP) Act on Wednesday, recognising “failure of contraceptive” as a lawful reason for abortion, including for unmarried women, sources said. This will make it easier for single women to safely and legally terminate unwanted pregnancy.

Currently, the law recognises “failure of contraceptive” and “unplanned pregnancy” as legal reasons for abortion only in case of “married” women.

The law says while for minors, written consent from parents is required, unmarried women cannot cite contraceptive failure as a reason for abortion.

Sources said the proposed amendment includes extending the gestation period from the current 20 weeks to 24 weeks for “special categories” and this may include single women with unwanted pregnancy, apart from disabled and other vulnerable women.

They said other proposed amendments to the law include allowing abortion any time during pregnancy for foetal abnormality, which cannot be detected during the 20-week gestation period. Currently, the law allows medical abortion only till 20 weeks of pregnancy.

Under the MTP Act, pregnancy can be terminated until 20 weeks after conception if it can harm the mother; if the pregnancy was the result of rape; if the child will be born with serious physical or mental defects; or in case of contraceptive failure.

Sources said the government move to end any ambiguity with regard to unmarried women will help address the social taboo attached to sexual activity of single or unmarried women.

The Act is likely to recognise ‘failure of contraceptive’ as a lawful reason for abortion even for unmarried women

Ram Temple tr

Bombay HC says it’s shocked by family court’s view on reproductive rights

Swati.Deshpande@timesgroup.com

Mumbai:

The Bombay high court’s Aurangabad bench has quashed an order of the Nanded family court which directed an estranged couple to undergo clinical consultation with an IVF expert for a second child. Family court Judge Swati Chauhan had invoked international treaties to hold reproductive rights as basic civil rights but said that such IVF procedure would require the husband’s consent.

“Seeking directions to forcibly have a second child during the pendency of a petition seeking restitution of conjugal rights would be detrimental to the mental growth of the child,” said HC Justice R V Ghughe, holding the wife’s plea “premature”. The judge said, “In my view, as the law stands today, there cannot be such a direction.’’ The family court took a “western view’’ of marriage in accepting that woman has reproductive choice, said HC adding that the conclusion that “women will always have an upper hand in matters of reproduction’’ is unsustainable.

Pending divorce and other proceedings, a woman in Nanded had wanted a second child through sperm donation from her estranged husband, without his financial assistance. The family court order “completely lost sight of the fact that the growth of a child is not money- but family-centric,’’ said HC.

The husband challenged the family court’s order. He told HC he had no desire to have a second child from his estranged wife “in any circumstance’’. The HC judge found the family court’s conclusion that women’s legitimate right to procreate, be respected and “not allowing a fertile woman to procreate is like compelling her to sterilize’’ to be “shocking to the judicial conscience of the court”.

Pune radiologist sentenced to 3 years jail under PCPNDT Act; gets bail

She was convicted of conducting illegal sex determination tests along with late Dr M Ranade.

Nozia Sayyed
Hindustan Times, Pune

Dr Mathrani, a radiologist and sonologist, was sentenced to three years rigorous imprisonment (RI) and a fine of ₹10,000 by Judicial Magistrate First Class, Vishakha B Patil. (HT REPRESENTATIONAL PHOTO )

 

Dr Nina Mathrani, a city radiologist and sonologist who was booked in 2011 by the Pune Municipal Corporation (PMC) for violating many sections of the Pre-Conception and Pre-Natal Diagnostic Techniques Act (PCPNDT), 1994, was sentenced to a three-year jail term on Tuesday. She was, however, released immediately on bail.

She was convicted of conducting illegal sex determination tests along with late Dr M Ranade.

The two doctors were booked for violating many sections under the PCPNDT Act, 1994, by PMC’s PCPNDT Cell in 2011, by the then head of the cell, Dr Vaishali Jadhav. Dr Mathrani said that she would be appealing against the judgement in a higher court.

Dr Mathrani, a radiologist and sonologist, was sentenced to three years rigorous imprisonment (RI) and a fine of ₹10,000 by Judicial Magistrate First Class, Vishakha B Patil.

Dr Vaishali Jadhav, the then assistant health officer of PMC, had filed the case in the court after finding many violations under the Act in 2011. Dr Jadhav said, “During my tenure as the head of PCPNDT Cell, I had filed 34 cases and since 2011 of the 34, already six doctors have been convicted, Mathrani is the seventh.”

According to Dr Jadhav, “This case stands apart as the doctor violated all possible sections of the PCPNDT. There was a decoy, a sting operation, illegal sex determination test, incomplete records were found, bribe, among others. The sting operation and decoy were arranged by Kiran Moghe, Janwadi Mahila Sangathan in association with other government authorities of the state. Later after finding out the irregularities we took it up and filed a case. After nine years of filing the case, the judgement was announced by the JMFC court.”

Moghe, state president of Janwadi, who helped frame the entire sting, said, “We along with Tathapi, another NGO, performed the sting operation. It is important to know that due diligence of Dr Jadhav paid off and finally the court announced Mathrani’s conviction. We had presented all evidence related to the case like video clips, money taken by the doctors. Still it took eight years to come to a conclusion. However, we are happy with it.”

The woman in the decoy couple who was directed by Moghe to Dr Ranade’s clinic said, she acted as instructed and told Dr Ranade that they were under pressure to have a son and wanted to know the gender of the foetus.

“He explained to us how the abortion is done and directed us to Dr Mathrani’s clinic. Before directing he gave us a letter which had a code word and we were warned to keep mum. On visiting Dr Mathrani, she saw the letter, conducted the test and we were out. She did not ask us anything. A of total ₹8,000 were taken from us as bribe. Dr Ranade even told us how to check the gender of the aborted foetus,” the woman said.

The woman, who was then three months pregnant, gave birth to a baby girl later. She said, “We are happy that Mathrani got convicted, but there could be many Ranades and Mathranis who need to be nabbed. It is a deeply rooted nexus which needs to be exposed.”

Anand Randive, lawyer, PMC health department, said, “This is a landmark case as the doctors were found to have violated all the sections under PCPNDT Act like Section 4 (1), 4 (2); Section 5 (1) (b) (c); Section 6 (b) (c), rule 9 and 10 (1A). The accused shall now undergo rigorous imprisonment of three years for offence punishable under Section 23 of PCPNDT Act for breach of all sections.”

First Published: May 15, 2019 14:35 IST

3 Pune docs booked for pregnant woman & her child’s death

TIMES NEWS NETWORK

Pune:

Three doctors affiliated to a private hospital in Chakan were booked on Friday for allegedly administering wrong medicines to a 26-year-old pregnant woman, leading to her death as well as that of the child on May 9.

The Chakan police identified the woman as Sapna Pawale of Shikrapur. Her husband, Sudhir, has registered a compliant. “We have booked the doctors under IPC sections 304a (causing death by negligence) and 34 (conspiracy),” an officer of Chakan police said. He added Sapna was shifted to the hospital on Thursday afternoon after she developed labour pains. “She was nine-months pregnant and all her medical reports were normal,” he said.

In the complaint, Sudhir, who works in a private company, stated that the three doctors checked his wife and told him that everything was fine. “The doctors then administered some injections and some tablets. They also provided IV fluid to her, following which Sapna’s health started deteriorating,” the complaint stated.

The officer said, seeing her condition, the doctors started the delivery procedure. “She gave birth to a still-born female,” the officer said. As Sapna’s condition deteriorated further, the doctors told Sudhir to shift her to another private hospital in Thergaon. The woman died while her husband was taking her to another hospital.

The police have seized pertinent documents from the hospital and also papers listing the medicines administered to Sapna, which will be sent to a state government committee of medical officers. “Further legal action will be initiated against the doctors only after the committee report,” the officer said

Free of cost deliveries at PGI, Chandigarh |Treatment of infants up to 1 year will also be free

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May 4, 2019

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Some good news for the parents-to-be. The Gynaecology Department of PGI, Chandigarh will charge no money for the deliveries and it will be free of cost. In fact, treatment for babies up to the age of 1 year will also not be chargeable. The private hospitals charge almost Rs 50,000 to Rs 1,00,000 for Cesarean sections but, PGI which used to charge Rs 1,000 excluding food will now give this facility free of cost.

The Medical Superintendent, PGI, Professor AK Gupta, said, “Since the government has been providing this service in all its district hospitals free of cost, charging from the patients will sound unreasonable. He said, “We thought that in a tertiary care hospital which is an institution of national importance, under the act of Parliament, charging for a service which is free in all district hospitals shall be not justifiable.”

An average of 490 complex deliveries take place in a month in PGI. “All these deliveries are complicated and therefore unlike the district hospital, volumes are restricted. So
exempting the cost of the delivery and other hospital charges can be borne by the institution,” said a senior faculty member.

However, there is a major drawback also, as the government hospital has limited resources. According to a doctor in the Government Multi-Specialty, Hospital, Sector 16,  “There is lack of beds and other infrastructure. But since it is free, two patients have to be adjusted in a bed. This is not the way to implement such policies.”

Karnataka sex determination racket: Health department urges media to help crackdown

In a major crackdown on the rampant determination of sex in the state of Karnataka, the government is now considering the option of conducting stung operations on doctors.

The department will give Rs 50,000 to the media houses for every successful raid (Representative Image).

Karnataka: In a major crackdown on the rampant determination of sex in the state of Karnataka, the government is now considering the option of conducting sting operations on doctors. The Health Department wishes to conduct the sting operations with the help of media houses.

The sting operations will be an attempt to track radiologists and gynaecologists who are involved in the illegal determination of sex. The initiative intends to use pregnant women as decoy for erring doctors.

While talking to Mirror Now, Dr Prabhakar, Director of State Health and Family Welfare Department urged media houses in the state to help them in the crackdown. Dr Prabhakar stated that in turn for their support, the department will give Rs 50,000 to the media houses for every successful raid.

While the department intends on conducting raids all across the state, the doctors have a contrary opinion. Dr Raviraj, the RMO of Lakeside Medical Centre and Hospital stated that while he welcomed the initiative, he questioned the implementation of the same. He further stated that doctors should be given a set of guidelines so that they can act accordingly.

A similar initiative was started in 2016 where the health department had put out a newspaper advertisement asking women to volunteer for a sting operation. The advertisement tanked as no one volunteered to be a part of the operation.

Sex determination was made illegal in India in 1994. The ban was passed under the Pre-conception and prenatal diagnostic techniques (Prohibition of sex selection) Act.