Padma Prakash: Movements, laws and change

MOOT POINT

Legislative initiatives on social policies have complex genetic histories. Some have come before their time and without an apparent public demand. An instance in the realm of women's issues is the Medical Termination of Pregnancy Act, 1971, making abortions conditionally legal before a demand had emerged for legalising abortion.

In contrast, the legislation to ban Sati, and the amendments to strengthen the law in rape cases, were the outcome of social demand. The Maharashtra Regulation of the Use of Pre-natal Diagnostic Techniques Act, 1988, was different and, to date, unique.

It came out of a movement, stretching to include women's groups, progressive medical and legal professionals, social scientists, and the health movement that foresaw a need and organised a demand. Its history raises interesting questions on civil society responsibilities and state initiatives.

In the early 1980s, amniocentesis, a medical diagnostic technique used to diagnose foetal abnormalities, began to be extensively accessed only to check the sex of the foetus, which was an incidental outcome of the tests. Associated sex-selective abortions, it was apprehended, were beginning to rise.

A small study in Mumbai estimated a rise in sex-selective abortions. Obstetricians offering these associated services""amniocentesis and sex-selective abortions""began to advertise freely.

A surge of concern among feminist scholars, feminine activists, and health workers prompted a wide-ranging protest campaign to put a stop to the practice. There were many contentious issues: Did the technology itself needed to be banned? Did it impinge on women's right to choose and the doctors' professional commitment to provide the service?

At a time when the world over women were demanding the right to abortion, could the demand to ban abortions, even if only sex-selective, be justified? Inevitably, there were sharp divisions, and for the first time, academic debates were among the shades of grey rather than between blacks and whites.

Out of this emerged a cogent demand that could not be ignored by the state. The first of the governments to respond was in Maharashtra and the Act was passed six years after the movement first began.

Historic reasons""a responsive state apparatus, long tradition of health and progressive movements""coalesced and the state set up a committee that included not only bureaucrats and the political leadership, but also independent lawyers, and women's groups and health activists.

While the inclusion of civil society elements in policy making is not new, this was probably the first time that social activists were the drivers. It was they that fine-tuned the legislation such that it mandated a regulatory mechanism incorporating civil society participation.

That was when forces inimical to the movement stepped in and the state succumbed to the pressure from those who projected the move as anti-medical progress. Although the law was passed, the rules were not formulated for a long time, and the entire system of monitoring""the crux of this kind of social legislation""was never entirely functional.

It is, of course, another matter that this legislation found echoes in other states, and the Centre too has now enacted a similar law. Today, even though the offer of foetal sex-determination technologies is monitored through registration and associated abortion facilities are banned, there is not enough evidence to confirm a decline in sex-selective abortions.

The demand for this legislation was a well-thought one. It was felt that the monitoring of the legislative mandates was absolutely necessary, and so the law incorporated that mechanism. But how was civil society to use these provisions that it had pressured the state to incorporate?

A campaign and a movement by their very nature are not geared to routine and systematic activities such as monitoring. There needed to be either an organisational network actively taking on this responsibility in every region, district and town or a vibrant grassroots movement around the issue.

Failing this, the participation of civil society in monitoring reduces to the government appointing such representatives as are in its scanner. In time this becomes part of the system and fails or succeeds as the state-controlled machinery does.

Social legislation meant to educate and persuade through the process of regulation and monitoring is difficult to enforce. And a law that, in addition, binds the activities of the influential medical community, even if it is to prevent the misuse of technology, is even trickier. Progressive movements and civil society organisations play a distinct and critical role in ensuring that the legislative prescriptions become effective.

But how is this to be done when movements have the critical mass for pushing through legislative measures, but not for ensuring their implementation? What strategies need to be evolved to ensure the two levels of change continue to occur simultaneously, as in this instance, ensuring that the medical technology is not misused, and, at another level, families cease to seek such drastic measures?

What kind of support base needs to emerge, especially on issues that impinge on new technologies, to ensure that they are not misused? And then of course the far broader question: How is "misuse" to be defined and should technology use be regulated by the state?