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Sex determination ban in India and freedom of speech

Copyright: <a href=''>ruigsantos / 123RF Stock Photo</a>
The practise of sex determination during pregnancy is outlawed in India – but is still performed illegally and contributes to the country’s imbalanced sex at birth ratio

A Supreme Court ruling says internet search engines should not be stopped from showing content about prenatal sex determination, only ads. The ruling suggests efforts to restrict prenatal sex determination in order to stymie female foeticide in India are going too far and becoming too intrusive.

The ruling comes amidst the continuing and long-standing controversy surrounding prenatal sex determination in India. Many suggest the practice is exploited for purposes of sex selection through female foeticide. This is because there is historically a strong preference for male offspring in some parts of countries such as India. Sex selection has become widespread since the advent of prenatal sex determination in the 1980s – severely skewing the country’s sex at birth ratio as a result.

The sex ratio at birth in India is currently around 919 girls for every thousand boys, according to a National Family Health Survey (NFHS). This is a slight improvement from ten years ago, when the male-to-female ratio at birth was 914 : 1,000. Yet it is still far from what the World Health Organization calls the “natural sex ratio at birth” – 100 females for every 105 males.

What’s more, the ratio continues to fall in many states – “dramatically” so in the likes of Assam and Sikkim – even as it increases across the country as a whole.

Ban on prenatal sex determination

Sex determination ban in India By Melanurya (Own work) [Public domain], via Wikimedia Commons
Prenatal sex determination is illegal in India
India has long had legislation in place to prevent sex selection. Prenatal sex determination was actually banned outright in 1994, with passage of the Preconception and Prenatal Diagnostics Test (PCPNDT) Act.

Some allege the law has been poorly implemented and enforced, however. They point to India’s continued sex-at-birth ratio imbalance as proof. UNICEF, meanwhile, claims

“foetal sex determination and sex selective abortion by unethical medical professionals has today grown into a Rs. 1,000 crore industry (US$ 244 million)….spurred on by technological developments that today allow mobile sex selection clinics to drive into almost any village or neighbourhood unchecked.”

In a recent example of this corruption, three people in Telengana were arrested after their sex selection racket was exposed by a sting operation. Those involved allegedly charged women Rs 15,000 to conduct sex determination tests and abort female foetuses.

“The right to know”

The Supreme Court’s ruling, at least in part, links to this, and speaks to a deeper issue of free speech: to what extent is letting people know about something advertising it?

The contention of India’s Attorney General Mukul Rohatgi is “the right to know is a fundamental right and we cannot curtail it.” The Court echoes this ruling, maintaining “if you block all information from coming then people would be deprived of the information and ultimately knowledge would suffer.” They note that valuable information would be unavailable to researchers if all information relating to prenatal sex determination was blocked.

The court’s defence of unrestricted access to information being part of freedom of speech is difficult to argue against. A valid counter-argument, however, could be that many advertisers could fall through the cracks. This especially applies to foreign entities seeking to entice Indians abroad for sex-selective operations.

Petitioner Sabu Mathew George argues that “any direct or indirect promotion of sex-determination techniques” ought to be curbed. However, such a request is arguably problematic as the definition of promotional material could be very broad. It could be argued that the listing of countries where sex determination is available constitutes “indirect promotion.”

Internet search engines such as Yahoo and Google also claim little to no “supervisory or editorial control” over material that gets uploaded – a point raised during the court case. Senior Google News advocate Abhishek Manu Singhvi, quoted in the Times of India, notes “I have to search billions of pages to find out the words ‘prenatal tests’ to block them…a blanket ban is not feasible.” He adds “PCPNDT talks only about advertisements and not text.”

However, the law as a whole is not working. The imbalances in India’s birth-at-sex ratio is indicative that sex-selective abortion is occurring – and that more needs to be done. As for the role of the internet, however, it is far from an easily resolved question. The Supreme Court’s ruling is unlikely to settle the issue any time soon.

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