The Indian government enacted the pre-conception and pre-natal diagnostic tests (prohibition of sex selection) Act in 1994. Taking exception to it, city-based couple Vijay Sharma, 42, and Kirti Sharma, 37, have approached the Bombay High Court, seeking permission to determine the sex of their third child.
The Sharmas have two daughters, Smriti, 14, and Aishwarya, 6, and want to have a son this time. The couple has contended in court that the government had enforced the law in order to stop sex selective abortions, but the law should be amended for couples who already had children. They have made it clear that they would have a third child only if it was a son. Having had two daughters, they wanted to experience raising a son as well, they said, and hence, should be given the liberty to determine the sex of their unborn child. The case filed in 2005 came up for hearing before a division Bench of Justice JN Patel and Justice SC Dharmadhikari on Monday. It was, however, adjourned for two weeks for further arguments. The case will again be heard on March 12.
Advocate Uday Warunjikar, intervenor in the case has relied on a ruling of the Supreme Court, which says that a child conceived is entitled to full development irrespective of its sex. The enactment of the pre-conception and pre-natal diagnostic tests (prohibition of sex selection) Act was in furtherance of Article 21 of the Constitution (Right to life). However, Sharmas, the petitioners in the case, have contended that the legislature has enacted the medical termination of pregnancy Act, 1971, which legalises abortions within 12 weeks of conception for limiting the number of children, is equivalent to foeticide. They have further contended that the prohibition of sex selection Act, 1994 and further amendments made to it in 2002 were ambiguous as they imposed a blanket ban on sex determination tests which, the couple said, were closing doors on married couples wanting to use advanced medical facilities to their avail.
The Sharmas have also said that although the law did not permit pre-natal diagnostic tests, people do get them conducted illegally and continue to choose the sex of their children. Activists however, were not convinced with their argument. Bobby Sista, trustee of Population First — an NGO that deals with issues related to gender equality and balance, said, “Not only is it against the law of the country, but also against the law of nature. If the life of a child is going to be stifled if it’s a girl, then why have a child at all?” He said it was morally, ethically, legally and even biologically unacceptable to take an exception in a case like this.
