Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 | Important Acts and Laws for Judiciary Exams PDF Download

Introduction

• The Act prohibits sex discrimination both before and after conception.
• It limits the use of prenatal diagnostic methods to detect specific genetic abnormalities and diseases.
• It prohibits disclosing the sex of the fetus to the expectant mother or her family.
• Advertising or promoting prenatal sex determination services is punishable under the Act.

Aim behind the enforcement of the PCPNDT Act

• Implementation of district-level programs for girl children.
• Monitoring and evaluation of the Act's implementation through community involvement.
• Ensuring accountability of implementing agencies through community monitoring.
• Utilizing Anganwadi personnel and ASHAs to track pregnancies, MTPs, and birth registrations.
• Identifying Act violators through audits and maintaining annual plans at various levels.

An overview of the PCPNDT Act

• Prenatal diagnostic practices
  • Includes medical procedures such as ultrasonography and foetoscopy.
  • Involves obtaining samples for prenatal diagnosis before or after conception.
• Prenatal diagnostic procedures
  • Defined as tests like ultrasound or examinations of blood and tissues for abnormalities.
• Pre-natal diagnostic methods
  • Collective term for the procedures and tests mentioned in the Act.

Regulation of Genetic Counselling Centres, Genetic Laboratories, and Genetic Clinics

• Genetic counselling centres, genetic laboratories, and genetic clinics are required to register with the Act and have competent staff for operation.
• Section 3 of the Act imposes restrictions on entities not registered under it.

Understanding Techniques for Prenatal Diagnosis

Regulating Prenatal Diagnosis

• Section 4 of the statute outlines the techniques for prenatal diagnosis.
• Prenatal diagnosis is permitted for patients with specific defects, including chromosomal abnormalities, genetic disorders of metabolism, haemoglobinopathies, sex-specific genetic disorders, congenital disorders, or other irregularities specified by the Central Supervisory Board (CSB).

Diagnostic Procedures

• Radiology, another term for radiation-based diagnostic procedures, is utilized for patients.
• Prenatal diagnostic procedures must meet certain criteria before being conducted:
  • The expectant mother must be over 35 years old.
  • The expectant mother must have a history of at least two spontaneous abortions or foetal losses.
  • Exposure to substances like drugs, radiation, infections, or toxins is a factor.
  • A family history of genetic diseases or abnormalities is considered, such as mental impairment or physical disabilities like spasticity.
  • Other requirements specified by the Central Supervisory Board must also be met.
  • Except for specific purposes outlined in Section 5(2) of the PCPNDT Act, no individual, including relatives or the pregnant woman's husband, should advocate for prenatal diagnostic methods.

Legal Regulations

• Section 5 of the Act mandates written authorization from the expectant mother and prohibits any discussion regarding the gender of the fetus.
• Gender determination is strictly forbidden under Section 6 of the legislation.

By following these guidelines and regulations, prenatal diagnosis procedures are carried out with care and legal compliance to ensure the well-being of both the mother and the unborn child.

The Central Supervisory Board and the State Supervisory Board

• Establishment of the Central Supervisory Board: Chapter IV of the PCPNDT Act focuses on setting up the Central Supervisory Board (CSB) tasked with monitoring the implementation of the Act and Rules. Similar boards are to be established at the State and Union Territory levels.

Constitution of the Central Supervisory Board

• Membership Composition: The CSB is formed by the Union Government and includes various stakeholders such as obstetricians, gynaecologists, paediatricians, social scientists, women's advocacy groups, lawmakers, and government representatives.
• Term of Office: Members serve specific terms ranging from one to three years, depending on the method of their appointment.

Appointment of the Board's Officers and Personnel

• Staff Appointment: The Board can hire necessary officers and personnel, subject to regulations, to effectively carry out its functions. The Central Government's approval is required for certain appointments.
• Terms of Service: All staff members are entitled to specific terms of service and compensation as outlined in the regulations.

Authentication of Board Orders and Documents

• Signing Authority: Board orders and documents must be signed by designated members to ensure authenticity and validity.

Disqualifications for Membership Appointments

• Criteria for Disqualification: Individuals with certain criminal convictions or insolvency status are disqualified from membership appointments.

Meetings of the Board

• Meeting Procedures: The Board must convene regularly and adhere to specified regulations for conducting meetings. Decisions are made by majority vote, with provisions for tie-breaking. Members are entitled to appropriate allowances.

Duties of the Central Supervisory Board

• Policy Advice: Providing policy recommendations to the Central Government regarding prenatal diagnostic tools and measures to prevent their misuse.
• Monitoring and Assessment: Tracking the implementation of the Act, suggesting amendments, and educating the public on issues like female foeticide.
• Code of Conduct: Establishing ethical standards for personnel in genetic facilities.
• Supervisory Responsibilities: Monitoring organizations under the Act and ensuring proper implementation.
• Additional Duties: Fulfilling any other responsibilities specified by the Act.

State Supervisory Boards

Composition of the State Supervisory Boards

• The State's Minister of Health and Family Welfare acts as the Chairperson by default;
• The Secretary of Health and Family Welfare serves as the Vice-Chairperson by default;
• Ex officio Secretaries or Commissioners from the Departments of Law, Social Welfare, Indian Systems of Medicine, and Homeopathy, or their representatives, are included;
• The State Government's ex officio Director of Health and Family Welfare or Indian Systems of Medicine and Homeopathy is part of the board;
• Three women members from the Legislative Council or Assembly are included;
• The State Government nominates ten members, with two from each of the following categories:
  • Renowned social scientists and legal professionals;
  • Notable female campaigners from NGOs or other sources;
  • Renowned obstetricians and gynaecologists or specialists in stri-roga or prasuti-tantra;
  • Renowned paediatricians or geneticists in medicine;
  • Renowned sonologists or radiologists;
• An official in charge of family welfare, not below the rank of Joint Director, serves as the Member Secretary by default.

Functions of the State Supervisory Boards

The State Supervisory Board is required to meet at least once every four months and carry out the following responsibilities:

• Raising awareness among the public about the state's practices related to pre-conception sex selection and prenatal foetal sex determination, particularly in combating female foeticide;
• Reviewing the actions of the state's relevant authorities and recommending appropriate actions when necessary;
• Providing the Board with relevant recommendations for implementing the provisions of the Act and regulations;
• Submitting consolidated reports on various activities related to the Act to both the Board and the Central Government as needed;
• Performing any additional duties specified in the Act.

Advisory Committees and Appropriate Authorities

• Advisory Committees and Appropriate Authorities are integral parts of Chapter V (Section 17, 17(A)) of the Act.
• Appropriate Authorities hold significant powers, such as registration issuance, suspension, or revocation, complaint investigation, and legal actions.
• They collaborate with Advisory Committees for guidance and support.
• Each Union Territory should have one or more Appropriate Authorities appointed by the Central Government.
• The State Appropriate Authority comprises specific members including the Joint Director of Health and Family Welfare, a woman advocate, and a representative from the law department.
• At district and sub-district levels, Civil Surgeons or Chief Medical Officers act as Appropriate Authorities.

Duties of Appropriate Authorities

• Accepting registration applications and overseeing genetic counseling facilities.
• Addressing violations of regulations and responding to criticism through legal channels.
• Reviewing ultrasound reports thoroughly and ensuring accurate record-keeping.
• Conducting investigations, educating the public, and advising on regulatory amendments.

The Powers of the Appropriate Authorities

• Summoning individuals with information on violations to court.
• Requesting records related to violations.
• Issuing search warrants for locations suspected of illegal practices.
• Exercising any other prescribed authority.

Composition of Advisory Committees

• Three medical professionals specializing in relevant fields.
• One legal expert to provide legal insights.
• An official representing the State Government's communication department.
• Three social workers, with at least one from a women's organization.

Registration Process for PCPNDT

• Genetic counselling centres, genetic laboratories, and genetic clinics with ultrasound or imaging machines are eligible for registration under Section 18 of the PCPNDT Act.
• Registration for PCPNDT can be done online through state web portals like those in Karnataka and Maharashtra.
• Any facility with equipment capable of determining the sex of a fetus must apply for registration within six months of establishment, as mandated by the law.
• If facilities meet the specified equipment and standards, they receive a registration certificate under Section 19 of the PCPNDT Act.
• Renewal of the registration certificate is possible by paying the required fees, and the certificate must be prominently displayed at the facility.

In essence, the PCPNDT registration process mandates that genetic facilities with relevant equipment must register within six months of establishment. This registration is facilitated through state web portals, ensuring compliance with the law. Upon meeting the equipment and standard requirements, facilities are issued registration certificates, which can be renewed upon payment of fees. Displaying the registration certificate prominently is a crucial requirement to operate legally.

Registration Revocation or Suspension

• As per Section 20 of the Act, the registration certificate can be suspended or revoked by the authorities on their own initiative upon receiving a complaint. This action is taken after issuing a show-cause notice along with the reasons for such a decision.
• Even after granting the medical center sufficient time to respond, the authorities reserve the right to proceed with the suspension or revocation of registration.
• Under Section 20(3), the relevant authority has the discretion to delay the registration of a facility without prior notice if it deems it necessary for public interest or expediency. However, this can only be done after providing written justifications for such a course of action.

Appeal Process under the PCPNDT Act

• When it comes to challenging a registration suspension or revocation as per the PCPNDT Act, individuals can appeal to specific authorities. These include:
• The Central government, which can take action against directives from a competent central authority.
• The State government, which can act against directives from competent state authorities.

Let's delve deeper into this process to gain a better understanding:

• Central Government Appeal: If the Central government is at odds with a directive from a competent central authority, an appeal can be made to address the situation.
• State Government Appeal: Similarly, if the State government finds itself in disagreement with directives from state competent authorities, an appeal process exists to resolve the issue.

For instance, imagine a scenario where a medical facility's registration under the PCPNDT Act is suspended by the State government due to alleged violations. In response, the facility can appeal this decision by following the prescribed procedures.

Offences and Penalties under the PCPNDT Act

• Section 22: Prohibition of advertising facilities for prenatal sex determination using radiography or imaging methods, with penalties of up to three years in prison and a fine of up to ten thousand rupees.
• Section 23: Prohibition of health practitioners from violating the Act, with penalties including a fine of up to 10,000 rupees and imprisonment for up to three years for the first offense, and up to five years' imprisonment and a fine of up to 50,000 rupees for subsequent offenses.
• Violations under Section 23 may lead to suspension of medical registration and removal from the medical council's register.
• Consulting genetic facilities for unauthorized reasons may result in five years' imprisonment and a fine of 50,000 rupees, with increased penalties for repeat offenses.
• Exemption for women undergoing diagnostic procedures for sex selection is provided under certain conditions.
• Responsibility and penalties for pressuring women into diagnostic procedures not listed in the Act are outlined in Sections 24 and 23(3).
• Penalties for violations not specified elsewhere in the Act may include three-month imprisonment, a fine of up to a thousand rupees, or both.
• Offenses by businesses, whether intentional or negligent, are punishable under Section 26.
• Every offense under the Act is cognizable and prohibits bail and compounding under Section 27.
• Authorities responsible for taking cognizance of offenses and jurisdiction of courts are detailed in Section 28.
• Requirements for maintaining records by clinics and organizations are outlined in Section 29.
• Authorities empowered to search for and seize records are mentioned in Section 30.
• Rules can be made in accordance with the Act by authorities specified in Section 32.

Amendment to the PCPNDT Act

To enhance regulation of gender selection technology, the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, was amended in 2003 to become the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (PCPNDT Act).

Consequences of the Amendment

• Including ultrasonography in its scope
• Constitution of a state-level supervisory board and the strengthening of the central supervisory board
• Making provisions for harsher penalties
• Granting the competent authorities the right to use a civil court to search for, confiscate, and seal the violators' machines and equipment
• Limiting the sale of ultrasound equipment to authorized organizations

Loopholes in the PCPNDT Act

• The PCPNDT Act has certain weaknesses that allow for misuse and evasion of the law.
• One loophole involves the lack of stringent monitoring at the grassroots level, enabling some practitioners to continue illegal practices.
• Another issue lies in the inadequate coordination between different levels of authorities, leading to loopholes in implementation.
• Additionally, the absence of clear guidelines on how to handle specific situations creates ambiguity and room for exploitation.

Chances of Corruption

• Registration of Genetic Guidance Centers and Laboratories could inadvertently legitimize the operations of profit-driven private clinics, undermining the intended regulatory measures.
• Licensing processes may introduce new avenues for corruption, circumventing established safeguards.
• It is increasingly evident that genetic testing should be restricted to accountable government healthcare facilities rather than being promoted in the private sector.

Elimination of Fear

• The authorities have confiscated ultrasound devices on multiple occasions due to violations of the PCPNDT Act.
• Under the Act, if the Appropriate Authority seizes ultrasound equipment from an unregistered organization, the machine will be released only after paying a penalty five times the registration fee.
• The organization must also provide an assurance that it will not conduct foetal sex detection or sex selection activities before or after conception.
• This provision in the Act removes the fear and deterrent effects by suggesting that offenders can resume their activities after a minimal payment and a commitment.
• This rule, instead of deterring offenders, implies that they can easily resume their activities after a minor penalty and a promise.
• To discourage individuals from flouting the rules of the Act, this particular regulation should be either revoked or revised.

Punishing the Victim

• The legal system's approach of punishing women is a misguided and cruel strategy. It fails to consider the constraints and lack of autonomy many women face in society.
• When societal structures severely limit women's choices and decisions, punitive measures only exacerbate their suffering.
• Imposing penalties on women in such circumstances serves to protect the interests of those who should bear responsibility for the situation, rather than addressing the root causes.

No Local Authorities

• The concept of establishing local vigilance committees to enhance effective implementation is not considered in this context. The focus remains solely on central and state-level entities.
• In this system, the punishments meted out to offenders are minimal due to the substantial profits generated by the industry. Consequently, these penalties lack the necessary severity to deter individuals from engaging in unlawful activities.

A Loophole in Form F of the Act

• Errors in Form F often found during search and seizure, hindering identification verification of patients.
• Form F is crucial for documenting patients' identities early on but is frequently completed incorrectly.
• Difficulties arise in tracking patients to verify if sex-selective abortions occurred due to incomplete documentation.
• Insufficient recordkeeping, as defined by the PCPNDT Act, is considered a legal offense.

Updating the Act

• Current legislation does not encompass advancements in sex-determination techniques like detecting craniate cells in maternal blood.
• New methods such as electrolysis and Ericsson's approach for sex-pre-selection are not addressed by the existing law.
• If upcoming technologies are not included in the legal framework, they may deviate from addressing critical issues.

Difficulty in the assessment of an application

• The proper execution of the law faces significant challenges.
• Preventing the disclosure of the sex of the fetus is not recommended since it is information that some individuals may want to know.
• Assessing applications has become more complex due to advancements in methods to avoid detection by both suppliers and consumers.
• Managing the private medical sector through standalone legislation may not be the most effective approach.
• Extensive state involvement is necessary beyond just passing the law, requiring actions from departments like health.

Landmark cases

Union of India v. Vinod Soni & Others, 2005

• The case involved a married couple challenging the constitutionality of an Act.
• Two main arguments were raised: violation of Article 14 and Article 21 of the Indian Constitution.
• The court highlighted that personal liberty does not extend to choosing the sex of a fetus.
• Article 21 encompasses rights like food, clothing, a decent environment, and cultural heritage protection.
• The Act aimed to ensure every child's right to full development under Article 21.
• The petition was rejected as there was no evidence of Article 21 violation.

Suo Motu v. State of Gujarat, 2008

• Does Section 28 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 allow a court to find a violation of the Act based on a complaint from an authorized official?
• Does the proviso to subsection (3) of Section 4 of the PNDT Act require the complaint to specify violations of Sections 5 and 6?
• Is it the responsibility of the authority to prove a contravention of Sections 5 or 6 of the Act?

Judgment

• A court can recognize an offense under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, based on a complaint from an authorized official as per Section 28 of the Act.
• The proviso to Section 4(3) of the PNDT Act does not necessitate the complaint to include accusations of violating Sections 5 or 6.
• The burden of proving a violation of Sections 5 or 6 does not lie with the prosecution for cases related to record-keeping errors under Section 4(3) of the PNDT Act.

Suggestions

• In addressing gender inequality comprehensively, combating the grave issue of female foeticide is crucial.
• Persistent efforts from various fronts are necessary to challenge deep-rooted patriarchal attitudes and practices.
• Education, advocacy, and a commitment to safeguarding female lives are essential for the transformation intended by the PNDT Act.

Conclusion

• Understanding of the PCPNDT Act remains below expectations, highlighting persistent societal preferences for male children.
• Media, social workers, and medical professionals play vital roles in reshaping attitudes and enforcing the Act's objectives.
• The Act has shown effectiveness in monitoring and preventing female foeticide, reflected in improving sex ratios.
• Government initiatives like the "Mukhbir Yojna" aim to encourage reporting of illegal practices, contributing to curbing female foeticide.
• While progress has been made, continued efforts are needed to uphold medical ethics and protect the rights of female foetuses