Punjab Health Minister Dr Yasmin Rashid, while addressing a seminar on “Ending Gender-Based Violence” held under the auspices of Punjab Government and UN Women, announced that the provincial government would table a bill soon that will ban disclosure of baby’s gender during pregnancy. There is nothing novel about the contemplated law and the rationale provided by the concerned minister. She argued that some people find out the identity of the baby and choose abortion if the fetus is a female. As a result, it will create gender imparity in Pakistan, giving birth to a myriad of problems. Pakistan would not be the first country to have such a law. Parental sex discernment was banned in India in 1994 under the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act. The act aimed to stop female feticide in India.
Gender imbalance is a valid concern and state should intervene to remedy the situation if it is of the opinion that free market will not be able to address the problem on its own. However, the proposed law by the Punjab health minister is not going to improve gender imparity. Abortion is illegal in Pakistan and allowed only when the life of a woman is in danger. Section 338 of the Pakistan Penal Code defines abortion (Isqat-i-Hamal) for the fetus whose organs have not fully developed. The very next section prescribes punishment for this kind of abortion. If the abortion was performed with the consent of the woman, the person convicted would be punished with imprisonment which may extend to three years. If the consent of the woman was not taken, the punishment might extend to ten years. Section 338-B deals with a fetus whose organs have been formed while the abortion was undertaken. In such a case, the offender can be imprisoned up-to seven years in addition to paying the diyat for the child. Additionally, if a woman dies as a result of abortion, the offender will be punished for causing the death of a person.
The provisions above, however, have not deterred people from undergoing abortions. In fact, Pakistan has one of the highest abortion rates in the world. In Pakistan, an estimated 50 abortions are taking place per thousand women. To gain a comparative perspective, the abortion rate in the United States is 13 per thousand women; in Sweden 18; Nigeria 33 and Bangladesh 39. Therefore, a huge black market for abortion is existing and thriving. As these abortions are being performed in the black market, they are clandestine, and health and lives of women are at perilous risk. Medical practitioners working in this market just want to make money and have no incentive to care for the health of the woman. Since the whole activity is beyond the regulation of the law, women who suffer medical malpractice are not able to take recourse to law as they themselves are a party to a crime. The medical and legal risks involved are of astronomical nature, but the same have failed to affect the behaviour of market participants: women and medical practitioners.
The respected minister, herself a professional doctor, lamented the fact that sex-selective abortions are being performed. However, instead of implementing the already existing law, she has proposed to create an additional barrier by proposing a ban on parental sex discernment. Assuming the bill gets passed, here is what’s going to happen: a black market for parental sex discernment is going to prop up in Punjab. Rates of parental sex discernment are going to be higher in this market since practitioners will charge extra as insurance in case they get caught. Therefore, either people will have to pay extra for parental sex discernment or travel to Islamabad or other provinces if that turns out to be a cheaper option. Consequently, the proposed barrier is going to have negligible to no effect on gender imparity.
The ban on abortion is stipulated in strong words and easily implementable. However, the state has miserably failed to enforce it. Parental sex discernment is a much cheaper and a lot less sophisticated procedure compared to abortion. If our state could not stop the creation of a black market of abortion, how can one expect from the same machinery to enforce something far more complex and difficult to implement.
Furthermore, there can be more than one reason for parental sex discernment. Studies conducted in the United States have revealed that more than 50 per cent of prospective parents want to know the sex of their baby. One reason is disease testing. Some diseases are sex-linked, and in these cases, parental sex discernment will raise the alarm in time, and preventive medication can be adopted. Other reasons, inter alia, involve preparing for sex-dependent aspects of parenting like bonding with the baby, preparing elder siblings and decorating the nursery.
Therefore, instead of purposelessly curtailing the rights of prospective parents to know the gender of their baby, the state should take soft measures to alleviate the issue of gender imparity. Affirmative action in favour of women should be pursued more rigorously. Gender-sensitive reforms in health, education and other sectors must be pushed so that people do not consider the prospective female child as a liability; instead, they should be made certain that she would be as much of an asset as a male child.
The writer is a practicing lawyer and has an LLM from The University of Chicago.
