The Fallout of Forbidding Female Foeticide in India: A Human Rights Analysis

• Author: Charvi Kumar
• Position: Symbiosis International (Deemed University), India
• Pages: 387-417

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2022 e Institute for Migrant Rights Press

thE fallout of forBidding fEmalE

foEtiCidE in india

A HUMAN RIGHTS ANALYSIS

Charvi Kumar

Symbiosis International (Deemed University), India

E-mail: charvi@symlaw.edu

is article seeks to examine the causes behind the distorted sex ratio in India,

focusing on the excessive rates of both pre-natal as well as post-natal elimination

of the girl child through various means. It will then analyse the current laws on

the prohibition of female foeticide as well as the general law on the termination

of pregnancies and access to prenatal screenings and diagnostic techniques. In

doing so, it will look at the overall implementation of these laws on women as

well as the overall sex ratio of the country. By also comparing the laws meant

to discourage female foeticide in China and South Korea, the article will fully

examine what India is doing right, and what it is doing wrong, and provide

suggestions and conclusions for the way forward.

Keywords: abortion, female foeticide, sex ratio, gender justice. human rights, India,

reproductive rights.

IX Indonesian Journal of International & Comparative Law 387-417 (July 2022)

388

Kumar

INTRODUCTION

In navigating almost seven decades of slow and steady development

amidst a rapidly evolving sociolegal landscape, India has witnessed

some notable successes and some overwhelming failures in the wom-

en’s rights sphere. e extreme marginalisation of women and girls

squarely falls into the latter category. Millions of women were system-

atically eliminated through outright infanticide, female foeticide, or

simply a socially engineered survival disadvantage. is disadvantage

is particularly evident before their births and during their childhoods,

and these women who died early deaths or were never given a chance

at life are now famously labelled the “missing women” of the region.1 In

1992, Amartya Sen alleged that 10 million (1 crore) girls were missing.2

An extensive study undertaken by the UNFPA, gathering and analys-

ing government data from 1970 to 2020, has revealed that the number

of missing girls in India is around 50 million (5 crores).3 Over the past

50 years, at least 5 crores girls have been aborted or killed through in-

tentional murder or wilful neglect.

e problem was rst noticed by British rulers in colonial India

as early as the nineteenth century. ey encountered entire villages,

especially in Rajasthan, where there were no young girls, only boys. e

villagers, especially consisting of the warrior castes like Rajputs, were

proud of the fact that they would only raise strong warriors and not

women who were “weak” and had no purpose in their social hierarchy. 4

e colonialists, riding on a wave of attempts to save the brown woman

from the brown man, banned this practice with the Female Infanticide

Prevention Act of 1870.5

1. Amartya Sen, Missing Women: Social Inequality Outweighs Women’s Survival

Advantage in Asia and North Africa, 304 B M J. 587 (1992).

2. Id.

3. State of the World Population 2020, UNFPA India (2020), available at https://

india.unfpa.org/en/news/state-world-population-2020 (last visited on 1 Aug

2020).

4 Barbara D Miller, Female Infanticide and Child Neglect in Rural North India, in

C S 95 (Nancy Scheper-Hughes ed., 1987) .

5. Id.