‘Grey areas’ in law banning prenatal sex determination need fixing, says HC

Context: The Delhi High Court has remarked that certain aspects of the Pre­Conception & Pre­Natal Diagnostic Techniques (Prohibition of Sex Selection) (PC & PNDT) Act need reconsideration for effective implementation of the Act. Court also remarked that “the low rate of conviction under the PC & PNDT Act poses a significant challenge, as it is incredibly arduous to prohibit pre­natal diagnosis of sex”.

The problem of declining child sex ratio

• Continuous decline in child sex ratio since 1961 Census is a matter of concern for the country. Beginning from 976 in 1961 Census, it declined to 927 in 2001. As per Census 2011 the Child Sex Ratio (0-6 years) has dipped further to 919 against 927 girls per thousand boys recorded in 2001 Census.

Important provisions of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 

• The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act was enacted on September 20, 1994 and the Act was further amended in 2003. The Act provides 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.

The Act is implemented through the following implementing bodies:

1. Central Supervisory Board 
2. State Supervisory Boards and Union Territory Supervisory Boards 
3. Appropriate Authority for the whole or a part of the State or Union Territory 
4. State Advisory Committee and Union Territory Advisory Committee 
5. Advisory Committees for designated areas (part of the State) attached to each Appropriate Authority. 
6. Appropriate Authorities at the District and Sub-District levels

Registration 

• Appropriate Authority of the district is responsible for registration of ultrasound diagnostic facilities.

• Mandatory Displays at ultrasound centre

(1) Pre-conception and Pre-natal Diagnostic Techniques (PC and PNDT) Certificate: It is mandatory for every clinic or facility or hospital etc. registered under the Pre-conception and Pre-natal Diagnostic Techniques Act to display the certificate of registration at a conspicuous place at such Centre, Laboratory or Clinic. 

(2) Signage, board or banner in English & local language indicating that foetal sex is not disclosed at the concerned facility. 

(3) Copy of the Pre-conception and Pre-natal Diagnostic Techniques Act must be available in every ultrasound centre

Renewal of registration 

(1) Every certificate of registration is valid for a period of 5 years 

(2) Renewal of registration to be done 30 days before the date of expiry of the certificate of registration. 

Mandatory maintenance of records: Register showing in serial order: 

(1) Names and addresses of men or women subjected to pre-natal diagnostic procedure or test

(2) Names of their spouses or fathers 

(3) Date on which they first reported for such counselling, procedure or test. 

(4) A monthly report should be submitted to the Appropriate Authority regularly, before the 5th of every month. A copy of same monthly reports with the signature of the Appropriate Authority acknowledging receipt must be preserved.

Preservation of the following duly completed forms 

1. Form F 
2. Referral Slips of Doctors 
3. Forms of consent 
4. Sonographic plates or slides 9. 

Record storage  

• All above records should be preserved for 2 years. 

Powers of Appropriate Authority 

(1) Appropriate Authority can enter freely into any clinic or facility for search and seizure. 

(2) Examine and inspect of registers, records including consent forms, referral slips, Forms, sonographic plates or slides and equipment like ultrasonography machines. 

(3) To ensure presence of at least two independent witnesses of the same locality or different locality during the search.

Concerns 

• Non-compliance with the legal requirements for operating the facility is rampant in many parts of India. 
• The primary reason for non-conviction is due to the inadequate legal expertise provided by the Public Prosecutor. 
• As per the 10th Common Review Mission Report of the National Health Mission , there are low conviction rates under this Act, due to  lack of witnesses, insufficient evidence, and out-of-court settlements.
• The ground-level people are more focused on clerical errors than working on the bigger picture of reducing female foeticide. This has led to many instances of harassment of radiologists and has also provided additional avenue for corruption.
• Future technologies being developed for sex-determination, like testing of craniate cells in maternal blood, subtle techniques for sex-pre-selection, like electrolysis, Ericsson’s methodology, etc are presently not covered under the law.

Suggestions 

• Implementation of Act should be strengthened through regular survey and inspection.
• Renewal of the registration  should be done on the basis of track record of the compliance to the record keeping rules.
• Regular meetings among various implementation bodies of state should be taken up.
• Monitoring and evaluation process should be made robust by inclusion of PRI’s , NGO’s and community workers.
• Capacity building various stakeholders like prosecutors, District appropriate authorities, community workers like ASHA’s etc, through training and media workshop should be undertaken.

Conclusion

The sex determination techniques and female infanticide is an inhumane act that needs to be curtailed by effective implementation of the PC PNDT Act. Protection of women and girl child should be priorities through effective implementation of public policies and regulations. There needs to be proper vigilance by the state and civil society to look after the declining sex ratio of the female population in the country.