Female Foeticide

Female Foeticide: A legal Analysis In 1988 there was an advertisement in the Diwali special number of a renowned Marathi magazine:[1] â€Å"Amniocentesis is a developed science To misuse it for abortion is a great sin. Better go in for sex-selection Read this book. Consult your family doctor for a sure way of begetting sons. Female foeticide is perhaps one of the worst forms of violence against women where a woman is denied her most basic and fundamental right- the right to life enshrined in Article 21 of Indian Constitution. Elimination of the girl child by way of selectively eliminating the female embryos or foetuses is an age-old phenomenon. It negates the fundamental right to equality guaranteed under Articles 14 and 15 of our Constitution. The traditional mentality of the Indian culture of preferring the boy baby over the girl child combined with the ultra modern technology has only succeeded in boosting the status conscious Indian families to perpetuate their choice making process of the girl child elimination in the most sophisticated and easiest way. To top it all, the ethically conscious medical profession has been able to bring down the already imbalanced sex ratio on to 927 women per 1000 men. [2] It raises important issues on the interfacing of technology, health and society, of misuse of medical technology, of using techno-centric solutions for social problems, of violation of the principles of medical ethics, of social and demographic implications of such technologies, of the decision making processes involving technology, which can have far-reaching social effects, of regulating the medical profession (specially reproductive technology) both internally and externally, of limits to research and the techno-docs' power ‘to play God', of the role and limits of social legislation in tackling social problems; of ‘informed consent', and patients' rights and doctors accountability, of the possible fall-out of the advent of New Reproductive Technologies (NRTs) from Sex Pre-Selection Techniques (SPSTs) to non-coital reproduction through IVF- ET or GIFF, surrogate motherhood to genetic engineering; of decision-making process in family and society and women's role (or lack of it) in them. All these interrelated issues mean something to all our lives as it defines the way we see our past, present and future. Traditionally the patriarchal families got rid of the â€Å"unwanted child† either by way of poisoning the new-born baby or letting her coke on husk or simply by crushing her skull under a charpoy. Since modern medical tests have made it easier to determine the sex of the child even before the birth of the â€Å"unwanted child†, the number has only shot instead of decreasing. In one hospital, a study showed that out of 8,000 abortions performed, 7,999 were female foetuses. [3] Hence, the government was forced to pass the Pre Natal Diagnostic (Prevention) Act, 1994 in response to the increasing number of abortions performed on women carrying female foetuses. 4] Thus, India's officials banned couples from using â€Å"technical means† to determine the sex of a foetus. [5] Although India's Parliament passed the legislation in 1994, it could not become law until all state legislatures approved it. [6] The law finally took effect on January 1, 1996. The 1994 Act is bot h prohibitive and regulatory. Prohibitive: According to the Act the use of pre-natal techniques for the purposes of sex determination are prohibited. [7] The Act prohibits any person conducting prenatal diagnostic procedure from communicating to the pregnant women concerned or her relatives the sex of the foetus by words, signs or in any other manner. 8] The Act prohibits any Genetic Counselling centre, Genetic Laboratory and Genetic Clinic to conduct activities relating to pre-natal diagnostic technique unless it is registered under the Act or to employ anyone who does not possess the prescribed qualifications. The medical practitioners are prohibited to conduct such techniques at any place, which is not registered under the Act. Regulatory: The Act provides for the regulation of pre-natal diagnostic techniques. Prenatal diagnostic techniques may be used to detect genetic or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders . Prenatal Diagnostic Techniques may be employed only under specified conditions by registered institutions:[9] O  Ã‚  Ã‚  Ã‚   The tests can only be carried out on women who are either over the age of thirty-five; or O  Ã‚  Ã‚  Ã‚   Have had two or more miscarriages; or O  Ã‚  Ã‚  Ã‚   Who have been exposed to radiation, infection, chemicals or drugs which are harmful to the foetus; or O  Ã‚  Ã‚  Ã‚   The pregnant woman has a family history of mental retardation or physical deformities such as spasticity or any other genetic disease; or O  Ã‚  Ã‚  Ã‚   Any other condition as may be specified by the Central Supervisory Board. It is very important to note that the Act permits use of such techniques provided the medical practitioner has explained all the known side and after effects of such techniques to the pregnant woman and more importantly, has obtained her written consent in the language she understands. 10] Persons working in the clinics, as well as women and their families who use the clinics; or are liable for fines and imprisonment for violating the Act. [11] The Act provides for the construction of a Central Supervisory Board [herein after CSB], which shall be established to advise the government on policy matters relating to pre-natal diagnostic techniques; to review the implementation of the Act and its rules; and to recommend changes in the Act and its rules. [12] The CSB has been assigned a very important function of spreading public awareness against the practice of pre-natal determination of sex and foeticide. The CSB shall meet at least twice a year to review the functioning of the Act and make recommendations for its better implementation. [13] An Appropriate Authority shall be appointed in States and Union Territories and regions wherein the authorities are empowered:[14] O  Ã‚  Ã‚  Ã‚   To grant, suspend or cancel the registration of genetic counselling centres, laboratories and clinics; and O  Ã‚  Ã‚  Ã‚   Also to investigate complaints regarding breach of the provisions of the Act or the rules. The Act lays down prohibition on the issuance of advertisements[15] relating to pre-natal sex determination by any person, organisation or institutional and provides that any contravention/Violations of the same will entitle the offender a punishment of 3 years imprisonment and/ or Rs. 10,000/- fine for the first charge, this increasing to Rs. 50,000/- fine and 5 years imprisonment for a second charge. [16] But there are various loopholes in the Act, which has made it a failure to a great extent thus letting the demons of female foeticide/infanticide survive and flourish! Hence, the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 was passed to plug the loopholes. THE PRE-NATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) AMENDMENT ACT, 2002: Objectives of the New Act: The practices relating to female foeticide and techniques connected with the same are considered discriminatory to the female sex and not conducive to the dignity of the women. The proliferation of the technologies mentioned above may, in future, precipitate a catastrophe, in the form of severe imbalance in male-female ratio. The State is also duty bound to intervene in such matters to uphold the welfare of the society, especially of the women and children. Therefore, the government felt the necessary to enact and implement in letter and spirit a legislation to ban the pre-conception sex selection techniques and the misuse of pre-natal diagnostic techniques for sex-selective abortions and to provide for the regulation of such abortions. Such a law is also needed to uphold medical ethics and initiate the process of regulation of medical technology in the larger interests of the society. Accordingly, it is proposed by the government to amend the aforesaid Act with a view to banning the use of both sex selection techniques prior to conception as well as the misuse of pre-natal diagnostic techniques for sex selective abortions and to regulate such techniques with a view to ensuring their scientific use for which they are intended. The Amendment Act, 2002 seeks to achieve the aforesaid objects. Highlights of the New Act: 1. The Act provides for the prohibition and regulation of SD techniques before or after conception. [17] 2. For the words and brackets â€Å"the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse)†, the words and brackets â€Å"the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection)† shall be substituted. [18] This lays a lot of emphasis on the issue of female foeticide in particular. 3. Definitions of â€Å"conceptus†, â€Å"embryo† and â€Å"foetus† have been laid down specifically, which helps in determining the cause and stage of use of PNDT. [19] 4. The Explanations added to Sec. (ii) in clause (d), (e) and (g) have enlarged the scope of the Act to include even the portable PNDT equipment/machinery. [20] 5. Qualifications of a genetic has been upgraded. [21] 6. Amendment of section 17 of the principal Act re ads as follows— â€Å"(e) to take appropriate legal action against the use of any sex selection technique by any person at any place, suo motu or brought to its notice and also to initiate independent investigations in such matter† This provision has given extra scope to the authorities for the utilisation of the powers to fulfil their duties. 7. Insertion of new section 17A. -After section 17 of the principal Act, the following section is proposed to be inserted, namely:— â€Å"17A. Powers of Appropriate Authorities. The Appropriate Authority shall have the powers in respect of the following matters, namely:— (a)  Ã‚  Ã‚  Ã‚   summoning of any person who is in possession of any information relating to violation of the provisions of this Act or the rules made thereunder; (b)  Ã‚  Ã‚   production of any document or material object relating to clause (a); (c)  Ã‚  Ã‚  Ã‚   issuing search warrant for any place suspected to be indulging in sex selectio n techniques or pre-natal sex determination; and (d)  Ã‚   any other matter which may be prescribed. †. This provision is very much in tune with the objective of Section 17 (e). 8. Provision with regard to the advertisements has been made more stringent. [22] 9. Definitely, the strongest provision of the Bill is the new section 24, which if brought to effect shall wipe all doubts with regard to the application of penal provisions to women undergoing the PNDT tests. The rovisions has rightly identified the problems of women in the cases of PNDT as in most cases, women are forced to go for these test or to forgo their marital lives their homes, even their lives. [23] Drawbacks of the new Act: I. Amendment of section 3. -In section 3 of the principal Act, for clause (2), the following clause shall be substituted, namely:— â€Å"(2) No Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall employ or cause to be employed or take services of any person, w hether on honorary basis or on payment who does not possess the qualifications as may be prescribed. † The Section is negatively worded which gives a scope for the people specifically excluded in the provisions to take advantage of the loophole. Instead, if the provision was positively worded in the sense that it lad down as to who is eligible to carry the PNDT under the circumstances specified under the Act, it would have restrained anyone who is otherwise not specifically authorised to conduct such tests. II. Section 3B: Prohibition on sale of ultrasound machine, etc. , to persons, laboratories, clinics, etc. , not registered under the Act. – No person shall sell any ultrasound machine or imaging machine or scanner or any other equipment capable of detecting sex of foetus to any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other person not registered under the Act. † Though this is a strongly worded Section, which aims at curbing the clandestine sale of the PNDT equipments, it suffers from a major drawback. The Act or he Section does to talk about the manufacturing of these equipments because since manufacturing is the first step towards the black-marketing and other misuses. As such, there have to be specific guidelines as to the manufacturing. The manufacturing license should be issued only to the Governmental Institutions so that the monitoring becomes so much easier because of the control that he Government can exercise over these institutions. Also very closely linked to above point is the licensing function. If licenses for prenatal diagnosis were granted only to government institutions, the task of vigilance would be further simplified. The ban on misuse of techniques for SD imposed upon government institutions has not been violated for the past 15 years. Also there is no provision to the effect that the registration of the portable PNDT machinery/equipment’s are also registered. III. Amendment of section 4. -In section 4 of the principal Act, for clauses (3) and (4), the following clauses shall be substituted, namely:— â€Å"(3) No pre-natal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied for reasons to be recorded in writing that any of the following conditions are fulfilled, namely:— The provisions of this section prima facie seem like a good provision but are a toothless one. The issue is that though citing a reason which satisfies the condition precedent laid down in the Act before the PNDT tests are conducted, the provisions misses out a crucial point. It does not mandate for the production of the documents to prove that the condition in fact, is satisfied and is very much in spirit wit the object of the Act. Also should be included in this provision the requirement t record al these documentary proof which shall be made available for verification by the CSB/SSB, etc. IV. Section 13 sub clause (vi) Any other condition as may be specified by the Board: This provision gives a lot of discretionary powers to the Boards, which have to be curtailed in the form of the guidelines. V. Amendment of section 5. In section 5 of the principal Act, for sub-section (2), the following sub-section shall be substituted, namely:— â€Å"(2) No person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs, or in any other manner. † This provision has practical difficulties in terms of implementation. It is suggested by the author that a kind of code system be adopted whereby the tests which have satisfied the conditions of the Act be given a code number and sent for testing in a place which is authorised to conduct he tests for a particular area or region. This is to ensure that there exists no direct links between the family concerned and the medical practitioner who can convey the sex of the foetus, which might lead to the death of the foetus in case it turns out to be a female. This is because though the provisions bar the practitioner from conveying in any manner whatsoever, the proof that the same has not been conveyed cannot be assured. VI. Automatic suspension/cancellation from the Registry of Medical Practitioners of the name of doctors found guilty by the court without referring the matter to the Medical Council. VII. Insertion of new section 16A. -After section 16 of the principal Act, the following section shall be inserted, namely:— â€Å"16A. Constitution of State Supervisory Board and Union territory Supervisory Board. (1) Each State and Union territory having Legislature shall constitute a Board to be known as the State Supervisory Board or the Union territory Supervisory Board, as the case may be, which shall ha ve the following functions:— (10) In respect of matters not specified in this section, the State Board shall follow procedures and conditions as are applicable to the Board. † There are no rules and regulations with regard to the powers of the Boards as to in what way the powers have to be synchronised to fulfil their duties and function as specified in the Act. Also, this Section suffers from a serious defect. That is the Section has adopted a very top-down approach, which has been time and again proved to be ineffective and fruitless. Therefore, the approach should have bee a grass-root eve approach. This is even more applicable n the cases of PNDT because of the Act that a good chunk of cases are from rural areas which are very difficult to monitor and control. A Panchayat level machinery working hand in hand with local rural institutions like the Anganwadis and the school would be an idea way to tackle and combat the problem of PNDT. VIII. Also the Act has certain vague and ambiguous terms and expressions like â€Å"eminent† which are very problematic as to how they should be interpreted and put to use. IX. Punishable with imprisonment for a term, which may extend to three years and with fine which may extend to fifty thousand rupees for the first offence and for any subsequent offence with imprisonment which may extend to five years and with fine which may extend to one lakh rupees. The hike in the fines though would be applicable to the urban areas, it’s a mere letter of black and white on the paper when it comes to the rural areas. The rural people who, more often than not are extremely poor, are in no position to pay those high fines, which makes the provisions a redundant provisions. Instead, thee ha to be a mechanism whereby these people can be sensitized to the problems associated with the girl child. It is the firm belief of the author that public awareness is a much better and powerful tool than mere fines, especially with regard to the rural poor. X. A major hurdle in the endeavor to prohibit sex determination and regulation of PNDT techniques is that there is no proper duty laid upon any of he authorities in the Act. There is no penalty attached for non performance of the duties- commission or omission- cast upon the authorities. Especially in the light of the fact that so far the CSB have never met regularly as per the provisions of the Act. XI. The Financial Memorandum affixed to the Bill with regard to the expenses falling under Section 16 A of the Act has no regulation with regard to transparency, a ccountability, and regulatory body. This is very problematic and might just prove to be plunder’s paradise. ——————————————– [ 2 ]. [1] See, http://www. evesindia. com/health/features/reprod_health. html, visited on 10/10/02. | | [ 3 ]. [2] Id.. | | [ 4 ]. [3]In one hospital, a study showed that out of 8,000 abortions performed, 7,999 were female foetuses. See Shailaja Bajpai, India's Lost Women, World Press Rev. , Apr. 1991, at 49. Also see, Vidya Deshpande, Where have all the girls gone? , http://www. indianexpress. com/fe/daily/19991202/faf28033. html, visited 24/12/02. | | [ 5 ]. [4]John F. Burns, India Fights Abortion of Female Foetuses, N. Y. Times, Aug. 27, 1994, at 5, available in LEXIS, News Library, Curnws File. | | [ 6 ]. [5]Demographers pointing to such numbers have finally forced governments to take notice. Thus, India's officials banned couples from using â€Å"technical means† to determine the sex of a foetus. The Sexes; Disappearing Girls; In China, India and South Korea, A Gender Gap Causes Worries, Asiaweek, Mar. 3, 1995, at 32 | [ 7 ]. [6]See India Bans Abortions of Female Fetuses; Another Move to Help Protect Baby Girls, Chi. Trib. , Jan. 10, 1996, at 13, available in LEXIS, World Library, Allwld File. | | [ 8 ]. [7] Section 3. | | [ 9 ]. [8] Section 4(4)| | [ 10 ]. [9] Section 4| | [ 11 ]. [10] Section 5(1)( c)| | [ 12 ]. [11] See section 24. Common response to the Act has been â€Å"If I do get arrested, I'll spend a couple of months in prison, but what's that compared to a lifetime of misery trying to bring up a girl? â€Å"| | [ 13 ]. [12] Section 17| | [ 14 ]. [13] Section 18| | [ 15 ]. [14] Sections 20-21| | [ 16 ]. [15] Section 22| | [ 17 ]. [16] Section 23| | [ 18 ]. 17] The long title of the Bill that is proposed to substituted the present long title reads as follows:— â€Å"An Act to provide for the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto. † | | [ 19 ]. [18] Amendment of section 1 of th e Act. | | [ 20 ]. [19] 4. Amendment of section 2. In section 2 of the principal Act,— (i) after clause (b), the following clauses shall be inserted, namely:— ‘(ba) â€Å"conceptus† means any product of conception at any stage of development from fertilisation until birth including extra embryonic membranes as well as the embryo or foetus; (bb) â€Å"embryo† means a developing human organism after fertilisation till the end of eight weeks (fifty-six days); (bc) â€Å"foetus† means a human organism during the period of its development beginning on the fifty-seventh day following fertilisation or creation (excluding any time in which its development has been suspended) and ending at the birth’ | | [ 21 ]. [20] â€Å"Explanation. — For the purposes of this clause, ‘Genetic Clinic’ includes a vehicle, where ultrasound machine or imaging machine or scanner or other equipment capable of determining sex of the foetus or a portable equipment which has the potential for detection of sex during pregnancy or selection of sex before conception, is used. † | | [ 22 ]. 21] ‘(g) â€Å"medical geneticist† includes a person who possesses a degree or diploma in genetic science in the fields of sex selection and pre-natal diagnostic techniques or has experience of not less than two years in any of these fields after obtaining— (i) any one of the medical qualifications recognised under the Indian Medical Council Act, 1956 (102 of 1956); or (ii) a post-graduate degree in biological sciences. ’ | | [ 23 ]. [22] Substitution of new section for section 22. -For section 22 of the principal Act, the following section shall be substituted, namely:— 22. Prohibition of advertisement relating to pre-conception and pre-natal determination of sex and punishment for contravention. (1) No person, organisation, Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, including c linic, laboratory or centre having ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus or sex selection shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any form, including internet, regarding facilities of pre-natal determination of sex or sex selection before conception available at such centre, laboratory, clinic or at any other place. See also, Substitution of new section for section 16. –    | | [ 24 ]. [23] Substitution of new section for section 24. For section 24 of the principal Act, the following section shall be substituted, namely:— â€Å"24. Presumption in the case of conduct of pre-natal diagnostic techniques. -Notwithstanding anything contained in the Indian Evidence Act, 1872, the court shall presume unless the contrary is proved that the pregnant woman was compelled by her husband or any other re lative, as the case may be, to undergo pre-natal diagnostic technique for the purposes other than those specified in sub-section (2) of section 4 and such person shall be liable for abatement of offence under sub-section (3) of section 23 and shall be punishable for the offence specified under that section. †| | Female Foeticide Female Foeticide: A legal Analysis In 1988 there was an advertisement in the Diwali special number of a renowned Marathi magazine:[1] â€Å"Amniocentesis is a developed science To misuse it for abortion is a great sin. Better go in for sex-selection Read this book. Consult your family doctor for a sure way of begetting sons. Female foeticide is perhaps one of the worst forms of violence against women where a woman is denied her most basic and fundamental right- the right to life enshrined in Article 21 of Indian Constitution. Elimination of the girl child by way of selectively eliminating the female embryos or foetuses is an age-old phenomenon. It negates the fundamental right to equality guaranteed under Articles 14 and 15 of our Constitution. The traditional mentality of the Indian culture of preferring the boy baby over the girl child combined with the ultra modern technology has only succeeded in boosting the status conscious Indian families to perpetuate their choice making process of the girl child elimination in the most sophisticated and easiest way. To top it all, the ethically conscious medical profession has been able to bring down the already imbalanced sex ratio on to 927 women per 1000 men. [2] It raises important issues on the interfacing of technology, health and society, of misuse of medical technology, of using techno-centric solutions for social problems, of violation of the principles of medical ethics, of social and demographic implications of such technologies, of the decision making processes involving technology, which can have far-reaching social effects, of regulating the medical profession (specially reproductive technology) both internally and externally, of limits to research and the techno-docs' power ‘to play God', of the role and limits of social legislation in tackling social problems; of ‘informed consent', and patients' rights and doctors accountability, of the possible fall-out of the advent of New Reproductive Technologies (NRTs) from Sex Pre-Selection Techniques (SPSTs) to non-coital reproduction through IVF- ET or GIFF, surrogate motherhood to genetic engineering; of decision-making process in family and society and women's role (or lack of it) in them. All these interrelated issues mean something to all our lives as it defines the way we see our past, present and future. Traditionally the patriarchal families got rid of the â€Å"unwanted child† either by way of poisoning the new-born baby or letting her coke on husk or simply by crushing her skull under a charpoy. Since modern medical tests have made it easier to determine the sex of the child even before the birth of the â€Å"unwanted child†, the number has only shot instead of decreasing. In one hospital, a study showed that out of 8,000 abortions performed, 7,999 were female foetuses. [3] Hence, the government was forced to pass the Pre Natal Diagnostic (Prevention) Act, 1994 in response to the increasing number of abortions performed on women carrying female foetuses. 4] Thus, India's officials banned couples from using â€Å"technical means† to determine the sex of a foetus. [5] Although India's Parliament passed the legislation in 1994, it could not become law until all state legislatures approved it. [6] The law finally took effect on January 1, 1996. The 1994 Act is bot h prohibitive and regulatory. Prohibitive: According to the Act the use of pre-natal techniques for the purposes of sex determination are prohibited. [7] The Act prohibits any person conducting prenatal diagnostic procedure from communicating to the pregnant women concerned or her relatives the sex of the foetus by words, signs or in any other manner. 8] The Act prohibits any Genetic Counselling centre, Genetic Laboratory and Genetic Clinic to conduct activities relating to pre-natal diagnostic technique unless it is registered under the Act or to employ anyone who does not possess the prescribed qualifications. The medical practitioners are prohibited to conduct such techniques at any place, which is not registered under the Act. Regulatory: The Act provides for the regulation of pre-natal diagnostic techniques. Prenatal diagnostic techniques may be used to detect genetic or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders . Prenatal Diagnostic Techniques may be employed only under specified conditions by registered institutions:[9] O  Ã‚  Ã‚  Ã‚   The tests can only be carried out on women who are either over the age of thirty-five; or O  Ã‚  Ã‚  Ã‚   Have had two or more miscarriages; or O  Ã‚  Ã‚  Ã‚   Who have been exposed to radiation, infection, chemicals or drugs which are harmful to the foetus; or O  Ã‚  Ã‚  Ã‚   The pregnant woman has a family history of mental retardation or physical deformities such as spasticity or any other genetic disease; or O  Ã‚  Ã‚  Ã‚   Any other condition as may be specified by the Central Supervisory Board. It is very important to note that the Act permits use of such techniques provided the medical practitioner has explained all the known side and after effects of such techniques to the pregnant woman and more importantly, has obtained her written consent in the language she understands. 10] Persons working in the clinics, as well as women and their families who use the clinics; or are liable for fines and imprisonment for violating the Act. [11] The Act provides for the construction of a Central Supervisory Board [herein after CSB], which shall be established to advise the government on policy matters relating to pre-natal diagnostic techniques; to review the implementation of the Act and its rules; and to recommend changes in the Act and its rules. [12] The CSB has been assigned a very important function of spreading public awareness against the practice of pre-natal determination of sex and foeticide. The CSB shall meet at least twice a year to review the functioning of the Act and make recommendations for its better implementation. [13] An Appropriate Authority shall be appointed in States and Union Territories and regions wherein the authorities are empowered:[14] O  Ã‚  Ã‚  Ã‚   To grant, suspend or cancel the registration of genetic counselling centres, laboratories and clinics; and O  Ã‚  Ã‚  Ã‚   Also to investigate complaints regarding breach of the provisions of the Act or the rules. The Act lays down prohibition on the issuance of advertisements[15] relating to pre-natal sex determination by any person, organisation or institutional and provides that any contravention/Violations of the same will entitle the offender a punishment of 3 years imprisonment and/ or Rs. 10,000/- fine for the first charge, this increasing to Rs. 50,000/- fine and 5 years imprisonment for a second charge. [16] But there are various loopholes in the Act, which has made it a failure to a great extent thus letting the demons of female foeticide/infanticide survive and flourish! Hence, the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 was passed to plug the loopholes. THE PRE-NATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) AMENDMENT ACT, 2002: Objectives of the New Act: The practices relating to female foeticide and techniques connected with the same are considered discriminatory to the female sex and not conducive to the dignity of the women. The proliferation of the technologies mentioned above may, in future, precipitate a catastrophe, in the form of severe imbalance in male-female ratio. The State is also duty bound to intervene in such matters to uphold the welfare of the society, especially of the women and children. Therefore, the government felt the necessary to enact and implement in letter and spirit a legislation to ban the pre-conception sex selection techniques and the misuse of pre-natal diagnostic techniques for sex-selective abortions and to provide for the regulation of such abortions. Such a law is also needed to uphold medical ethics and initiate the process of regulation of medical technology in the larger interests of the society. Accordingly, it is proposed by the government to amend the aforesaid Act with a view to banning the use of both sex selection techniques prior to conception as well as the misuse of pre-natal diagnostic techniques for sex selective abortions and to regulate such techniques with a view to ensuring their scientific use for which they are intended. The Amendment Act, 2002 seeks to achieve the aforesaid objects. Highlights of the New Act: 1. The Act provides for the prohibition and regulation of SD techniques before or after conception. [17] 2. For the words and brackets â€Å"the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse)†, the words and brackets â€Å"the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection)† shall be substituted. [18] This lays a lot of emphasis on the issue of female foeticide in particular. 3. Definitions of â€Å"conceptus†, â€Å"embryo† and â€Å"foetus† have been laid down specifically, which helps in determining the cause and stage of use of PNDT. [19] 4. The Explanations added to Sec. (ii) in clause (d), (e) and (g) have enlarged the scope of the Act to include even the portable PNDT equipment/machinery. [20] 5. Qualifications of a genetic has been upgraded. [21] 6. Amendment of section 17 of the principal Act re ads as follows— â€Å"(e) to take appropriate legal action against the use of any sex selection technique by any person at any place, suo motu or brought to its notice and also to initiate independent investigations in such matter† This provision has given extra scope to the authorities for the utilisation of the powers to fulfil their duties. 7. Insertion of new section 17A. -After section 17 of the principal Act, the following section is proposed to be inserted, namely:— â€Å"17A. Powers of Appropriate Authorities. The Appropriate Authority shall have the powers in respect of the following matters, namely:— (a)  Ã‚  Ã‚  Ã‚   summoning of any person who is in possession of any information relating to violation of the provisions of this Act or the rules made thereunder; (b)  Ã‚  Ã‚   production of any document or material object relating to clause (a); (c)  Ã‚  Ã‚  Ã‚   issuing search warrant for any place suspected to be indulging in sex selectio n techniques or pre-natal sex determination; and (d)  Ã‚   any other matter which may be prescribed. †. This provision is very much in tune with the objective of Section 17 (e). 8. Provision with regard to the advertisements has been made more stringent. [22] 9. Definitely, the strongest provision of the Bill is the new section 24, which if brought to effect shall wipe all doubts with regard to the application of penal provisions to women undergoing the PNDT tests. The rovisions has rightly identified the problems of women in the cases of PNDT as in most cases, women are forced to go for these test or to forgo their marital lives their homes, even their lives. [23] Drawbacks of the new Act: I. Amendment of section 3. -In section 3 of the principal Act, for clause (2), the following clause shall be substituted, namely:— â€Å"(2) No Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall employ or cause to be employed or take services of any person, w hether on honorary basis or on payment who does not possess the qualifications as may be prescribed. † The Section is negatively worded which gives a scope for the people specifically excluded in the provisions to take advantage of the loophole. Instead, if the provision was positively worded in the sense that it lad down as to who is eligible to carry the PNDT under the circumstances specified under the Act, it would have restrained anyone who is otherwise not specifically authorised to conduct such tests. II. Section 3B: Prohibition on sale of ultrasound machine, etc. , to persons, laboratories, clinics, etc. , not registered under the Act. – No person shall sell any ultrasound machine or imaging machine or scanner or any other equipment capable of detecting sex of foetus to any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other person not registered under the Act. † Though this is a strongly worded Section, which aims at curbing the clandestine sale of the PNDT equipments, it suffers from a major drawback. The Act or he Section does to talk about the manufacturing of these equipments because since manufacturing is the first step towards the black-marketing and other misuses. As such, there have to be specific guidelines as to the manufacturing. The manufacturing license should be issued only to the Governmental Institutions so that the monitoring becomes so much easier because of the control that he Government can exercise over these institutions. Also very closely linked to above point is the licensing function. If licenses for prenatal diagnosis were granted only to government institutions, the task of vigilance would be further simplified. The ban on misuse of techniques for SD imposed upon government institutions has not been violated for the past 15 years. Also there is no provision to the effect that the registration of the portable PNDT machinery/equipment’s are also registered. III. Amendment of section 4. -In section 4 of the principal Act, for clauses (3) and (4), the following clauses shall be substituted, namely:— â€Å"(3) No pre-natal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied for reasons to be recorded in writing that any of the following conditions are fulfilled, namely:— The provisions of this section prima facie seem like a good provision but are a toothless one. The issue is that though citing a reason which satisfies the condition precedent laid down in the Act before the PNDT tests are conducted, the provisions misses out a crucial point. It does not mandate for the production of the documents to prove that the condition in fact, is satisfied and is very much in spirit wit the object of the Act. Also should be included in this provision the requirement t record al these documentary proof which shall be made available for verification by the CSB/SSB, etc. IV. Section 13 sub clause (vi) Any other condition as may be specified by the Board: This provision gives a lot of discretionary powers to the Boards, which have to be curtailed in the form of the guidelines. V. Amendment of section 5. In section 5 of the principal Act, for sub-section (2), the following sub-section shall be substituted, namely:— â€Å"(2) No person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs, or in any other manner. † This provision has practical difficulties in terms of implementation. It is suggested by the author that a kind of code system be adopted whereby the tests which have satisfied the conditions of the Act be given a code number and sent for testing in a place which is authorised to conduct he tests for a particular area or region. This is to ensure that there exists no direct links between the family concerned and the medical practitioner who can convey the sex of the foetus, which might lead to the death of the foetus in case it turns out to be a female. This is because though the provisions bar the practitioner from conveying in any manner whatsoever, the proof that the same has not been conveyed cannot be assured. VI. Automatic suspension/cancellation from the Registry of Medical Practitioners of the name of doctors found guilty by the court without referring the matter to the Medical Council. VII. Insertion of new section 16A. -After section 16 of the principal Act, the following section shall be inserted, namely:— â€Å"16A. Constitution of State Supervisory Board and Union territory Supervisory Board. (1) Each State and Union territory having Legislature shall constitute a Board to be known as the State Supervisory Board or the Union territory Supervisory Board, as the case may be, which shall ha ve the following functions:— (10) In respect of matters not specified in this section, the State Board shall follow procedures and conditions as are applicable to the Board. † There are no rules and regulations with regard to the powers of the Boards as to in what way the powers have to be synchronised to fulfil their duties and function as specified in the Act. Also, this Section suffers from a serious defect. That is the Section has adopted a very top-down approach, which has been time and again proved to be ineffective and fruitless. Therefore, the approach should have bee a grass-root eve approach. This is even more applicable n the cases of PNDT because of the Act that a good chunk of cases are from rural areas which are very difficult to monitor and control. A Panchayat level machinery working hand in hand with local rural institutions like the Anganwadis and the school would be an idea way to tackle and combat the problem of PNDT. VIII. Also the Act has certain vague and ambiguous terms and expressions like â€Å"eminent† which are very problematic as to how they should be interpreted and put to use. IX. Punishable with imprisonment for a term, which may extend to three years and with fine which may extend to fifty thousand rupees for the first offence and for any subsequent offence with imprisonment which may extend to five years and with fine which may extend to one lakh rupees. The hike in the fines though would be applicable to the urban areas, it’s a mere letter of black and white on the paper when it comes to the rural areas. The rural people who, more often than not are extremely poor, are in no position to pay those high fines, which makes the provisions a redundant provisions. Instead, thee ha to be a mechanism whereby these people can be sensitized to the problems associated with the girl child. It is the firm belief of the author that public awareness is a much better and powerful tool than mere fines, especially with regard to the rural poor. X. A major hurdle in the endeavor to prohibit sex determination and regulation of PNDT techniques is that there is no proper duty laid upon any of he authorities in the Act. There is no penalty attached for non performance of the duties- commission or omission- cast upon the authorities. Especially in the light of the fact that so far the CSB have never met regularly as per the provisions of the Act. XI. The Financial Memorandum affixed to the Bill with regard to the expenses falling under Section 16 A of the Act has no regulation with regard to transparency, a ccountability, and regulatory body. This is very problematic and might just prove to be plunder’s paradise. ——————————————– [ 2 ]. [1] See, http://www. evesindia. com/health/features/reprod_health. html, visited on 10/10/02. | | [ 3 ]. [2] Id.. | | [ 4 ]. [3]In one hospital, a study showed that out of 8,000 abortions performed, 7,999 were female foetuses. See Shailaja Bajpai, India's Lost Women, World Press Rev. , Apr. 1991, at 49. Also see, Vidya Deshpande, Where have all the girls gone? , http://www. indianexpress. com/fe/daily/19991202/faf28033. html, visited 24/12/02. | | [ 5 ]. [4]John F. Burns, India Fights Abortion of Female Foetuses, N. Y. Times, Aug. 27, 1994, at 5, available in LEXIS, News Library, Curnws File. | | [ 6 ]. [5]Demographers pointing to such numbers have finally forced governments to take notice. Thus, India's officials banned couples from using â€Å"technical means† to determine the sex of a foetus. The Sexes; Disappearing Girls; In China, India and South Korea, A Gender Gap Causes Worries, Asiaweek, Mar. 3, 1995, at 32 | [ 7 ]. [6]See India Bans Abortions of Female Fetuses; Another Move to Help Protect Baby Girls, Chi. Trib. , Jan. 10, 1996, at 13, available in LEXIS, World Library, Allwld File. | | [ 8 ]. [7] Section 3. | | [ 9 ]. [8] Section 4(4)| | [ 10 ]. [9] Section 4| | [ 11 ]. [10] Section 5(1)( c)| | [ 12 ]. [11] See section 24. Common response to the Act has been â€Å"If I do get arrested, I'll spend a couple of months in prison, but what's that compared to a lifetime of misery trying to bring up a girl? â€Å"| | [ 13 ]. [12] Section 17| | [ 14 ]. [13] Section 18| | [ 15 ]. [14] Sections 20-21| | [ 16 ]. [15] Section 22| | [ 17 ]. [16] Section 23| | [ 18 ]. 17] The long title of the Bill that is proposed to substituted the present long title reads as follows:— â€Å"An Act to provide for the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto. † | | [ 19 ]. [18] Amendment of section 1 of th e Act. | | [ 20 ]. [19] 4. Amendment of section 2. In section 2 of the principal Act,— (i) after clause (b), the following clauses shall be inserted, namely:— ‘(ba) â€Å"conceptus† means any product of conception at any stage of development from fertilisation until birth including extra embryonic membranes as well as the embryo or foetus; (bb) â€Å"embryo† means a developing human organism after fertilisation till the end of eight weeks (fifty-six days); (bc) â€Å"foetus† means a human organism during the period of its development beginning on the fifty-seventh day following fertilisation or creation (excluding any time in which its development has been suspended) and ending at the birth’ | | [ 21 ]. [20] â€Å"Explanation. — For the purposes of this clause, ‘Genetic Clinic’ includes a vehicle, where ultrasound machine or imaging machine or scanner or other equipment capable of determining sex of the foetus or a portable equipment which has the potential for detection of sex during pregnancy or selection of sex before conception, is used. † | | [ 22 ]. 21] ‘(g) â€Å"medical geneticist† includes a person who possesses a degree or diploma in genetic science in the fields of sex selection and pre-natal diagnostic techniques or has experience of not less than two years in any of these fields after obtaining— (i) any one of the medical qualifications recognised under the Indian Medical Council Act, 1956 (102 of 1956); or (ii) a post-graduate degree in biological sciences. ’ | | [ 23 ]. [22] Substitution of new section for section 22. -For section 22 of the principal Act, the following section shall be substituted, namely:— 22. Prohibition of advertisement relating to pre-conception and pre-natal determination of sex and punishment for contravention. (1) No person, organisation, Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, including c linic, laboratory or centre having ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus or sex selection shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any form, including internet, regarding facilities of pre-natal determination of sex or sex selection before conception available at such centre, laboratory, clinic or at any other place. See also, Substitution of new section for section 16. –    | | [ 24 ]. [23] Substitution of new section for section 24. For section 24 of the principal Act, the following section shall be substituted, namely:— â€Å"24. Presumption in the case of conduct of pre-natal diagnostic techniques. -Notwithstanding anything contained in the Indian Evidence Act, 1872, the court shall presume unless the contrary is proved that the pregnant woman was compelled by her husband or any other re lative, as the case may be, to undergo pre-natal diagnostic technique for the purposes other than those specified in sub-section (2) of section 4 and such person shall be liable for abatement of offence under sub-section (3) of section 23 and shall be punishable for the offence specified under that section. †| |