The Unintended Consequences of India’s War on Sex Selection

India’s ban on sex-selective abortions in 1994 was designed to increase gender equality and send the message that girls and women are valued in society. But the law has also come at a cost, according to Jill Filipovic.

Fellows 2015

By Jill Filipovic

March 31, 2016

Also published by World Policy Journal

Many poor women now find that they can’t access second-trimester abortions at all. The policy’s implementation raises a crucial question: “Can you promote the rights of women and girls and also restrict their family choices?”

Dr. Meena Kharat has performed abortions in India and trained other doctors how to perform them for more than two decades. Women, she said, have the right to terminate pregnancies they don’t want or can’t continue, and giving women the power to control their own reproduction is a step toward gender equality in what she classifies as a stubbornly patriarchal society. These days, though, if a pregnant woman comes to her and needs an abortion in the second trimester of pregnancy, Kharat gives her two options: Get sterilized along with the abortion procedure, or don’t get the abortion.

“Most of us have stopped doing second trimester abortions, because it can make trouble if this has been done for sex selection,” Kharat said about the other gynecologists and abortion providers she knows. “You do second-trimester abortions only if the woman is unmarried. If the patient does not want any more children, if she is interested in making an appointment for a sterilization, then we do a second trimester abortion. Not for temporary contraception.”

Sex-selective abortion was outlawed in India in 1994, after a stunning gender gap emerged in births of female babies versus male ones (the law was amended to close some loopholes in 2002). The victory was a feminist one, supported by many women’s rights organizations concerned about the millions of missing girls. The law remains a touch point for feminist activism in India, stoking outrage at the sheer number of girls never given a chance and galvanizing support from the United Nations, the Indian government, and local NGOs.

Actual progress in narrowing the child sex ratio has been sluggish—in every census since 1991, it’s actually gotten worse. And regulation of sex selection has at times come at the expense of safe abortion services, including for many women who weren’t trying to sex select in the first place. Now, more than two decades after sex selection was outlawed, a law that promised to increase gender equality and send the message that girls and women are valued in society is raising some tough new questions for doctors and women’s rights advocates. Primary among them: Can you promote the rights of women and girls and also restrict their family planning choices?

Kharat works in Pune, a city about two hours outside of Mumbai in the Indian state of Maharashtra. But the options she offers women in the face of the sex-selection law were echoed hundreds of miles to the north, by gynecologists and abortion providers in Udaipur, a city in the state of Rajasthan. “Fear is there,” Dr. Reena Mittal, a gynecologist at a public hospital in Udaipur, said. “The second-trimester abortions, no one is doing them.”

According to Mittal, Kharat, and several other abortion providers, doctors across the country are afraid of accidentally running afoul of the sex-selection law by performing an abortion on a woman who had a sonogram elsewhere, saw the fetus was female, and decided to terminate (in India, sonograms to determine the sex of the fetus typically cannot be performed until the second trimester).

Both Mittal and Kharat said they felt at less risk because they work at public hospitals, where abortion is free but more regulated than at private clinics and where, as a result, women are less likely to seek sex-selective abortions. But private providers, they said, are fearful—even though terminating a second-trimester abortion can mean a bigger payday.

While public hospital employees like Mittal and Kharat said they aren’t afraid of legal sanctions, that lack of fear comes at a cost: They aren’t afraid of legal reprisals, because they often simply refuse care to patients.

“It is affecting our services,” Mittal said. “Previously, we used to do some seven to eight second-trimester abortions in three months. Now we don’t do a single one in one year. That’s the difference.”

There are many reasons, aside from sex selection, why a woman might need an abortion in the second trimester. Much of India’s female population is impoverished, rural, and illiterate, and arranged marriages of teenagers are common. Many young women know virtually nothing about contraception, sex, or reproduction, and don’t realize they are pregnant until they are several months along. Unmarried women, for whom premarital sex is highly stigmatized, may spend months in denial that they’re pregnant. And many serious fetal abnormalities can’t be diagnosed until many months into the pregnancy. Women who aren’t married, or women carrying pregnancies with serious problems can usually still get second-trimester abortions at public hospitals, doctors say. But women who have more mundane concerns—those who didn’t realize they were pregnant, those who find themselves suddenly widowed or with a husband who loses his job, or those unexpectedly in other financial circumstances that make having a child impossible—are often out of luck.

“Women are coming in, but we are not entertaining them,” Mittal said. A generalized refusal to perform second-trimester abortions keeps doctors away from even the hint of impropriety, and Mittal herself supports the law against sex-selective abortion. But, she said, “Ultimately, she is going somewhere and getting it done.”

MISSING WOMEN

India has some of the highest rates of sex-selective abortions in the world and, as a result, a gender ratio skewed toward men—that is, there just aren’t enough baby girls being born, which means there aren’t enough adult women to keep the country at a roughly 50–50 gender balance. As of 2011, the most recent year from which census data is available, there were 919 girls under the age of 7 in India for every 1,000 boys. And, despite the fact that the law has been in place for more than two decades of improving health conditions and major economic gains, sex selection seems to be happening more frequently: In 2001, there were 927 girls for every 1,000 boys. In the decade after the 2001 census, the sex ratio for children worsened in 18 Indian states. It improved in just 10.

That skewed sex ratio poses a series of potential dangers. When you have far more young men than women in a society where marriage is seen as a necessary component of adulthood, a glut of marriage-age men means many of them find themselves unmoored—and more prone to violence, radicalism, wife-buying, and trafficking.

Balancing out the gender ratio is a sticky and complicated challenge. Even today, many upper-class Indians say the solution is education—it’s the poor and the uneducated, as conventional wisdom goes, who are aborting female fetuses so that they can have sons. If that’s accurate, then it follows that education and economic mobility are the solutions.

Just one problem: The poor aren’t the issue. Driving the imbalanced sex ratio is, perversely, an increasingly educated and wealthy middle class.

“One thing you have to understand is that sex selection … is not the issue of the extremes of the groups,” Dr. Salve Pavan Vasantrao, a medical officer of health at the public YCM Hospital in Pune, said. “It is not an issue in very high families; it is not related to poverty also. If you go to the slums, there is minimal or no sex selection. This is an issue mostly of the new rich, middle-class people.”

It’s illegal in India to find out the sex of your fetus, but urban middle-class Indians with more disposable income can increasingly afford to pay for ultrasounds at private clinics or travel abroad to have ultrasounds done. Those same urban middle-class families can afford to pay large sums to private abortion providers to terminate pregnancies. As a result, the sex ratio in urban areas is a striking 902 girls age 6 and under for every 1,000 boys, compared to 919 girls for every 1,000 boys in rural areas. Women with 10 or more years of education and women in wealthier households are also more likely to sex select. As the financial benefits from “the Indian Miracle” made Indian families wealthier and better educated, rates of sex-selective abortion rose: There were fewer than 2 million sex-selective abortions in the 1980s, which grew to between 1.2 and 4.1 million in the 1990s; by the 2000s, researchers estimate there were at least 3.1 million and as many as 6 million sex-selective abortions in India.

The cause of sex selection isn’t only generalized misogyny, although, like everywhere else in the world, Indian women and girls face entrenched and systematic sexism; it’s the structure of many Indian families, which creates a series of incentives to have sons. When a couple marries, the young woman typically moves out of her parents’ home and into what is often a multi-family home with her husband, his parents, and sometimes the families of her husband’s brothers as well. The young woman’s family pays a dowry to the new family taking her on. Her husband is the one in charge of earning enough money to support his new wife, their children, and his parents, while she is in charge of tending to the household, including the needs of her husband, their children, and her in-laws. Not only is the new wife expected to bear a son, but if she doesn’t, she will have no support system when she and her husband age—a son is, in a sense, the primary retirement plan, and a necessary support system should she become widowed. Daughters, and the dowries they require, offer no similar guarantee and cost the family a substantial amount of money. Once a woman is married, her new family often has a say in her reproductive decisions—what kind of contraceptive method to use and whether or not to end a pregnancy.

Across the street from the YCM Hospital in Pune is a dense urban slum, where many of the residents have yet to enjoy their city’s economic advancement. There, a group of women gathered to speak about their health care with a visiting reporter. One of them, named Geeta, said she wasn’t sure if abortion is legal or not, but she knew for sure that you’re not allowed to abort a female fetus. And she said it strikes her as fundamentally unfair that women in India bear all the burdens of reproduction and have none of the control. Women in India, she explained, “they are behind their husband, their kids, their in-laws. They give last priority to their health and their needs.”

When it comes to abortion, she said, husbands and wives do talk: “But usually the family is the decision-maker on abortion.” And from what Geeta has seen, the women she knows also get little say in whether they have sex or not. “Normally if you don’t want to have sex, you will anyway,” she said. “And if you really don’t want to, then the husband will force them.”

“A HAPPY FAMILY”

The Indian government has been on a decades long campaign to lower the fertility rate by promoting sterilization and free birth control. The country is trying to get its booming population, and the poverty that comes with it, under control. The campaign, which employs public health workers in every corner of the country and sends the message that “a small family is a happy family,” has made significant progress: In 1960, the average Indian woman had nearly six children. Today, she has 2.5.

But that may actually be driving sex selection. If you only have two kids, the stakes are higher for one of them to be a boy. And indeed, when researchers break out the sex ratio for first-born children and second-born children, there’s a notable dip. Researchers note that the strongest predictor of sex selection is the gender of the first-born child (that is, if the first-born is a girl, parents are more likely to employ sex selection to make sure they have a boy next).

Most research on sex selection has focused on women, who are the ones undergoing sex-selective abortions (mothers-in-law, too, have a strong influence over a daughter-in-law’s reproductive decisions). In one study by India’s National Institute of Public Cooperation and Child Development on the declining sex ratio in Haryana and Delhi, researchers looked at male attitudes toward sons versus daughters, and found that more than half of men thought investing in a daughter was a “waste.” That family-wide preference for sons also drives low rates of female births.

For many women in India, marriage means immediate subservience, but mother-in-law status confers a great deal of power. The only way to guarantee that eventual status is by having a son.

“The woman, she may be responsible for that baby biologically, but family wise she is not the decision maker,” Vasantrao, the doctor in Pune, said. “She cannot make the decision related to whether to continue that pregnancy, whether to deliver that baby, even if she wants to, because in our society she has a minimal right to decide whether she might be earning or not, whether she’s educated or not. Even today she has minimal influence because of the kind of structure in the family, because of the social structure here.”

Which is why, many women’s rights groups say, the law against sex selection is so important: It doesn’t limit women’s individual reproductive choice so much as it pushes back on a cultural force that devalues women and girls, and sends the message from the highest reaches of government that trying to avoid having a girl is both morally wrong and illegal.

GATEKEEPERS

While abortion is effectively legal in India, the abortion liberalization law itself makes clear that even a standard abortion—that is, not one for sex-selective purposes—is less about a woman’s freedom and more about the opinion of some other authority figure, such as a doctor. For every abortion they perform, medical practitioners have to fill out a form selecting the reason they have allowed the abortion: To save the pregnant woman’s health or life, because the fetus has an abnormality, because the pregnancy was caused by rape, or because the pregnancy resulted from a contraception failure when a married woman and her husband were trying to limit the number of children they had. The health exception is interpreted broadly in India to include mental health, making abortion generally legal—but always subject to a doctor’s gatekeeping.

Despite the fact that abortion has been legal in India since 1971, many women in India, especially if they are low-income or illiterate, don’t realize it. Women in rural villages and urban slums alike expressed surprise at the idea that abortion might be offered at public hospitals; many knew of women who had terminated pregnancies, but most were done clandestinely. Other women, they reported, simply killed infant girls soon after birth.

“My friend’s mother had eight daughters, and then had two more,” Geeta, who lives in the Pune slum, said, recalling her childhood a decade or so earlier. “So she threw them in the canal.”

Back in Rajasthan, at a rural hospital a few hours outside of Udaipur, a group of Accredited Social Health Activists (ASHAs) and midwives gathered for training on safe abortion services. The women are all community health workers in rural villages, but many either don’t realize abortion is legal or think it’s too stigmatized to talk about. Local pro-choice groups, in this case a reproductive rights organization called Ipas, are trying to change that by educating health workers about safe abortion and giving them the tools to discuss abortion in their communities.

“[Women] don’t consider it good,” said one ASHA about abortion care. “They feel they need it, but they are against it.”

The long-standing campaign against sex selection, another ASHA added, doesn’t help; women are under the impression abortion is outlawed, and so they will seek out clandestine procedures. “Because of sex selection, it is a problem,” she said about unsafe abortion. “[Legal abortion] is seen as something that cannot be done.”

A third ASHA questioned the sex-selection law more generally. She said she understands why it’s wrong to abort a female fetus, but the reality is that families want a son. In her rural village, that means women have more children than they can handle, keeping them impoverished and neglecting the girls. “Illegal sex selection means women just keep having kids until they have a boy,” she said.

Women’s groups are increasingly pushing for abortion to be understood within a rights-based framework, less about population control and more about the empowerment of women, but they butt up against social barriers and the language and strictures of the abortion liberalization law itself. It’s in this context, of abortion as a service to an overpopulated society and not a woman’s unquestioned choice but a request granted or refused by someone more powerful, that the law against sex selection was passed, implemented, and amended. And it’s in this context that women are the ones held socially accountable for sex-selective abortions and who bear the weight of stigma when abortion is branded immoral and illegal if done in order to avoid having daughters.

And the Indian government sends its warnings against sex-selective abortions loud and clear: Nearly every hospital and clinic in the country displays large signs indicating they don’t perform ultrasounds to determine the fetus’s sex, and a large-scale public information campaign against sex-selective abortion has gotten the message even to women in hard-to-reach rural areas and urban slums.

But while communications campaigns are widespread, the law itself is rarely enforced.

“It’s the implementation of the law that needs to be strengthened,” Sonali Khan, vice president and India country director at Breakthrough, a global human rights organization dedicated to combating violence against women, said. “The progress of cases filed under the act is poor, and judgments take a long time to come through.”

Enforcement, though, means arrest of doctors in a country where there is already a shortage of trained abortion providers. And far outside of courtrooms, many women on the receiving end of the public information campaigns aren’t hearing that sex-selective abortion is illegal; they’re hearing that abortion generally is illegal, or at least morally wrong. They’re going to hospitals in their second trimester of pregnancy and having abortion services refused. They’re hearing that abortion generally is shameful or that it’s murder. And the messages women hear from the government and from health care professionals, who are accorded a great deal of respect and authority, resonate.

“It’s not right to do it,” Geeta said about abortion. “But if a doctor asks us to do it, then it’s right.”

In an effort to curtail sex-selective abortions, abortion rights groups say the government may have inadvertently tarred all abortion services. “Because the government has not been very successful in controlling sex-selective abortion and communicating that, they started doing things that impacted access to abortion,” Vinoj Manning, executive director of the Ipas Development Foundation, said. That includes limiting general access to second-trimester procedures, or using terms like “female foeticide” to amp up the emotional rhetoric and displaying provocative images in the campaigns against sex selection. According to Ipas, advertisements have included female fetuses speaking from the womb, fetuses “being crushed, stabbed, and strangled,” and “daggers going through the stomach of a pregnant woman, blood being spattered.”

“That impacts abortion,” Manning said. “Stigma impacts access to abortion. Because today a woman, a poor woman, if she has fever or malaria can talk to her family, talk to her neighbors, find pathways to care. But she can’t do that with abortion. Even her husband would find it really difficult to talk to peers or family to figure out how to access safe services, to say, ‘Where do you go; how do you pay?’”

As a result, Manning said, women turn to illegal and often unsafe, untrained providers. Despite the fact that abortion is generally permissible in India before 20 weeks, India’s Ministry of Health and Family Welfare estimates that nearly half of abortions in the country are unsafe. Women who are most vulnerable—the young, the unmarried, the poor—are the most likely to seek out unsafe services.

The abortion law, known in India as the Medical Termination of Pregnancy Act, or the MTP law, is also coming under scrutiny because of the law against sex selection. India’s anti-abortion movement is small and not particularly powerful, but they’ve latched onto the sex selection issue to try and curtail abortion rights more generally. And some government officials, too, blame the general abortion law with the prevalence of sex selection, calling the law’s allowance for abortion in the case of contraception failure or a woman’s mental health status a “loophole” exploited to abort female fetuses.

“The law says MTPs are permitted if there is proof to establish that pregnancy has occurred despite the use [of] contraception. This is being used as a ground to seek abortions,” a government official told the India Express in 2014, after a crackdown on sex-selective abortions. “Sometimes, basic records of treatment of mental health disorders, often diagnosed by a general practitioner, are provided as records for MTPs. These records should ideally not be accepted.”

Not accepting mental health and contraception exceptions would mean the end to elective abortion for women in India.

“LOGICAL INCONSISTENCY”

By some estimates, a woman dies on average every two hours from an unsafe abortion in India. While the procedure is legal, difficulties accessing it and the stigma of having an abortion mean women routinely seek out untrained providers or purchase “abortion pills” so they can end their pregnancies at home. With unsafe procedures a stubborn driver of maternal mortality, India’s government is increasingly working with pro-choice groups to train safe providers to work in rural areas; they’re even considering a bill that would allow midwives and other mid-level medical practitioners to give pregnant women medical terminations with abortion-inducing drugs.

Addressing the role of abortion stigma, though, is new, and even women’s rights organizations have difficulty combating negative stereotypes about abortion while still opposing sex selection. Most feminist organizations are strongly in favor of the law against sex selection and want to see it strengthened—some individuals and groups even conduct sting operations to catch doctors offering illegal sonograms so expectant parents can learn if they’re carrying a boy or a girl, contravening Indian law. Because there isn’t much of a political battle over abortion in India, groups that focus exclusively or even primarily on abortion rights are few and far between. Pro-choice groups now find themselves walking the jagged boundary between the principle that women should have control over their reproductive decisions and the competing notion that the right to abortion can be limited because of a social and moral judgment that certain reasons to terminate pregnancies are bad enough to be legally impermissible.

In 2013, Indian women’s rights groups convened in New Delhi to address the issue of preserving access to safe abortion while also combating sex selection. The meeting was an uneasy one. In the final meeting documents, Ipas, one of the organizations leading the meeting, noted, “The group acknowledged their lack of comfort with the awkward position in which sex-selective abortion places women’s rights advocates. Women’s agency should be supported—but even to the point of supporting a woman’s right to choose to terminate a pregnancy based on the sex of the foetus?”

No member of the meeting, according to Ipas, defended or supported sex-selective abortion. The meeting participants and women’s groups discussed the tension between support for abortion rights and opposition to sex selection, but “did not come to any conclusion beyond pointing out the logical inconsistency of the point of view.”

Even with the internal difficulties, women’s rights groups in India are seeing some successes in efforts to shift the conversation away from passing judgment on women’s choices and toward a broader embrace of women’s rights, which they hope will tackle two issues at once: The underlying bigotries that lead to sex selection and the very real health consequences that come from lack of access to, or knowledge of, safe abortion services. The Indian government is paying some attention, working to integrate a few of Ipas’ best practices into its campaign against sex selection. Early last year, the government also launched a radio and TV ad campaign on safe abortion in an attempt to reduce stigma and encourage women to seek out safe, legal providers. The TV commercial features a young, attractive married couple speaking with the wife’s sister-in-law. They tell her they had an early abortion the day before; she’s concerned. The couple tells her that they terminated the pregnancy with the help and advice of a trained health care provider and that it was safe, quick, and involved very little pain. The mother-in-law adds that they did the right thing by ending the pregnancy early and going to a safe provider. The strength of the commercial, according to Ipas, comes with “normalizing abortion in the context of family structures in India by projecting it as a topic of conversation that does not require secrecy.”

But this positive messaging around safe, legal abortion is still nowhere near as widespread as warnings about the illegality of sex-selective abortion.

One challenge for both women’s groups and the government is the reality that the sex-selection law isn’t working and that crackdowns on sex-selective abortion are unlikely to fix the imbalanced gender ratio. Before ultrasounds were available, female infanticide was common in parts of India. Even today, Indian girls are 75 percent likelier to die in early childhood than boys, further driving the skewed sex ratio and making India, along with China, one of only two countries in the world where the mortality rate for female infants is higher than that for male infants.

Girls die because they’re fed less, immunized at lower rates, and taken to the doctor less often than boys. Girls, many families seem to have decided, just aren’t worth the investment. And it’s much harder to craft a policy of valuing girls than it is a law outlawing certain behaviors.

Eliminating the law against sex selection is not under discussion in India, and women’s rights groups broadly agree that would send the wrong message about valuing women and girls. The illegality of sex selection doesn’t prevent it, but it almost surely makes it less common. What reproductive rights groups struggle with is how to send the message that girls and women should be valued, and therefore sex selection is wrong, without sending the attendant message that women who terminate pregnancies for whatever reason are morally suspect or even evil. On balance, women’s groups seem to agree, the sex-selection law has more benefits than costs—but it’s an uneasy calculus.

Back at the hospital in Pune, Maharashtra, a state with a particularly poor child sex ratio—883 girls for every 1,000 boys—doctors were largely at a loss on how to proceed. They said they don’t want to limit women’s access to safe abortion or coerce women into sterilizations. But they also said they believe sex selection is wrong and should be illegal, and they don’t want to find themselves in hot water.

“In India, there is a patriarchal society,” Dr. Varsha S. Dange, a women’s health officer in Pune, said. “Because of that, the families are very fond of male children. Because of that, there was a need to have a law which would prevent sex selection.”

But, she added, “I am working in a public health sector. We should not deny any female who is coming to you for the [medical termination of pregnancy]. That is her birthright, I believe, to decide when she should have a pregnancy and when she should not.”

JILL FILIPOVIC is a Nairobi-based journalist. She was a 2015 International Reporting Project fellow in India.