Banned and enforced: the immediate answer to a problem without an immediate solution - how India can prevent another generation of "missing girls".

• Author: Manhoff, Alison Wood

ABSTRACT

India has banned the use of ultrasound technology to determine the sex of a fetus for more than a decade. Despite this ban, India's 2001 census showed that for every one thousand boys under the age of six there are only 927 girls. There is speculation that this striking gender imbalance is largely the result of the abortion of fetuses discovered to be female after a sex determination ultrasound or amniocentesis procedure. Traditionally, the desire not to have a female child is viewed as a consequence of the dowry system that is prevalent in India. Commentators often propose efforts to raise the social and economic status of women to end this custom as a solution to the gender imbalance problem. This Note argues that new research shows that traditional explanations and solutions may not be accurate or effective. The Author proposes that the problem must be addressed by both immediate and long-term solutions: India's government should immediately implement a ban on sex selection with "vigor and zeal" and should, in the long-term, increase the value of women in Indian society.

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. The History of Sex Selection and the Role It Plays in India B. The Increasing Severity of the Sex Selection Problem C. India's Dowry System D. Is the Custom of Dowry to Blame for India's Gender Imbalance? IV. PAST ATTEMPTS TO RETURN INDIA'S "MISSING GIRLS" V. WILL A BAN ON SEX DETERMINATION ULTRASOUNDS RETURN INDIA'S "MISSING GIRLS?" A. An Immediate Answer to a Problem Without an Immediate Solution B. India's Government Must Display the Political Will Necessary to Effect Change C. The Ineffective Actions of the Past D. Effective Current and Proposed Long-Term Actions to Support and Sustain Change VI. CONCLUSION I. INTRODUCTION

India's total population on 1st March 2001 stood at 1.03 billion persons. With this, India became the second country in the world, after China, to cross the one billion mark. The population of the country rose by 21.34% between 1991 and 2001. What did not rise, but rather declined shockingly, was the child sex ratio. How do communities uphold and honour a value system which is based on son preference and discrimination against the girl? (1)

In 2001 the Supreme Court of India ordered state authorities to begin enforcing a law, which had been on the books for years, banning the use of technology to determine the sex of fetuses. (2) This order stemmed India's 2001 census, which showed a dramatic drop in the number of young girls in the country. (3) For every one thousand boys under the age of six there are only 927 girls. (4) This latter number represents a drop from the 1991 statistic of 945 girls. (5) Some speculate that this decrease is largely the result of the abortion of female fetuses, determined to be so after a sex determination ultrasound or amniocentesis procedure. (6) It is commonly believed that this disparity is the result of the desire of Indian parents to avoid paying a dowry at the time of their daughter's marriage. (7) The dowry is a payment from the bride's family to the groom's family in money, property, or goods. (8) Although India outlawed dowries in 1961, the social custom still flourishes. (9)

Commentators suggest that the solution to the problem is not passing more laws, such as banning sex determination ultrasounds, but raising the social and economic status of women. (10) These commentators argue that while banning sex determination ultrasounds may appear to help eliminate the problem of selectively aborting female fetuses, it is questionable whether this is a step in the right direction because such a ban will not prevent the neglect of young girls or prevent female infanticide. (11) Moreover, they emphasize that both these tragedies are cited as potential causes of the disparity in the ratio of boys to girls ages six and under. (12) What will the effects of banning sex determination be? While it is clear that dowries present a substantial financial burden for the parents of females, can the blame be placed on the dowry, and is increasing the social and economic status of women the answer?

Part II of this Note will discuss the traditional role that sex selection has played in India, describe the current state of India's child sex ratio, reveal the traditional explanations of and solutions to the gender imbalance, and advocate that new research shows that these traditional explanations may not be accurate. Part III of this Note will examine past solutions to end gender imbalance in India and explain why these actions have been largely ineffective. Part IV of this Note will propose that the problem must be addressed by both an immediate and long-term solution. India must address this problem through a two-pronged approach. The first prong involves the immediate imposition of a strict ban on sex determination. The second prong requires the implementation of long-term solutions that involve increasing the value of women in Indian society. This approach will help India immediately start to address the problem of its "missing girls."

2. BACKGROUND

   1. The History of Sex Selection and the Role It Plays in India

      While relatively recent technological improvements have made sex selection a viable guarantee to ensure the birth of a child of the desired sex, the quest to be able to select the sex of a child is in no way a recent phenomenon. (13) According to one author, "[b]ecause sex historically has been linked to economic entitlement, social privilege, and person status in most societies, attempts to control or predict the sex of one's offspring also date back to ancient times." (14) The earliest post-conceptive method of sex selection was infanticide. (15) The first written record of female infanticide dates back to the Tokugawa period in Japan (1600 to 1868 c.e.), when there were nine times more male than female births recorded. (16) It is believed, however, that the practice had already been in existence for thousands of years. (17) Historically, more common methods of sex selection involved preconception efforts that were both biologic and symbolic in nature, (18) Aristotle speculated that the "likelihood of having a male correlated directly to the vigor with which one copulated." (19) The Greek philosopher Anaxagoras theorized that tying off the left testicle would produce a male child. (20) Other societies have emphasized symbolic methods of preselecting a child's sex, such as hanging trousers on the appropriate bed post or having the woman dress like a man before intercourse. (21) Modern scientific techniques of sex determination include ultrasound, chorionic villi sampling, and amniocentesis. (22) If the use of one of these procedures determines that the sex of the child is a girl, the fetus is often aborted. Sex determination of fetuses became possible in India during the 1970s with the arrival of amniocentesis. (23) Amniocentesis involves analyzing cells drawn from a hollow needle inserted by a doctor through the mother's abdominal wall into the amniotic fluid surrounding the fetus. (24) This procedure was developed to discover genetic abnormalities but is also used to determine the sex of the fetus. (25) In 1975, when the procedure was first available at a Delhi medical institute, "only one of the thousands of tests performed that year was performed for a purpose other than discovering the fetus's gender. And almost all of the women who found out they were carrying a female fetus aborted her." (26) Although the government of India banned the use of amniocentesis for sex selection in 1976, the ban was not all-encompassing. (27) The ban was applied only to government facilities and did not prevent private clinics from offering the procedure for sex-determination. (28) The first private sex determination clinic was opened in Amritsar in 1979. (29) Despite the weakness of the ban, the use of amniocentesis for sex selection in India remained a controlled phenomenon that was limited largely to a few urban areas. (30)

      It was not until the 1980s and the increasing availability of ultrasounds that sex determination became a widespread method of sex selection in India. (31) Ultrasound is a noninvasive technique by which the doctor directs a high-frequency sound source at the fetus. (32) A visual image of the fetus is created by the echoes of the sound waves. (33) Doctors are able to determine the sex of the child from this image. All areas of India, even small rural towns, gained access to the procedure through the formation of private clinics. (34) Further, "elaborate referral networks sprang up, connecting small villages to their nearest urban ultrasound clinics, with each link receiving a commission from the clinics." (35) Recently, a new ultrasound technique that produces a 3D/4D image of the fetus, instead of a flat unclear image produced by most ultrasounds, has arrived in India. (36) This technology, if used for sex determination purposes, will further enable doctors to guarantee the accuracy of the sex of the fetus.

      The state of Maharashtra enacted the first ban on the use of ultrasound for sex determination in 1988. (37) Three other states enacted similar prohibitions shortly thereafter. (38) This legislation resulted in a decline in the number of sex determination clinics and appeared to be a step in the right direction. (39) The success of this legislation is largely credited to an organization called the Forum Against Sex Determination and Sex Pre-selection (FASDSP), which monitored compliance with the ban. (40) Unfortunately, this group eventually deteriorated, and as it became apparent to the people that the ban was not being enforced, many of the clinics reopened. (41)

      The 1991 census indicated the severity of the decline in female children. (42) The ratio had declined to a national average of 945 girls to every one thousand boys. (43) The numbers could no longer be ignored. For the first time, the central...