PRE-NATAL DIAGNOSTIC TECHNIQUES lAWS & FACT

28/01/2011 16:44

 PRE-NATAL DIAGNOSTIC TECHNIQUES lAWS & FACT

(PNDT LAWS & FACT IN INDIA)

The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 amended in 2002, as The Pre Conception and Pre Natal Diagnostic Techniques (Prohibition of Sex Selection)

 

 

It is for  ‘ v ” paper of LLM previous

 

 

Non-Doctrinal Research

 

 

Jai Narayan Vyas University, Jodhpur

 

 

 

JNVU 1.jpg

 

 

 

 

 

 

 

 

Supervisor                                                                                                                        Presentation by

DR. mahesh mathur                                                                akshna chopra

Astt.  Lecturer Law faculty                                                                                            Student LLM 1 yearJai Narayan Vyas University , Jodhpur                                            J.N.V.U Jodhpur

                                                                                                    Roll No. ……………

 

CERTIFICATE

 

 

         It is Certify that Present Title “PRE-NATAL DIAGNOSTIC TECHNIQUES lAWS & FACT (PNDT LAWS & FACT IN INDIA)” named doctrinal research is prepared & present tied by Miss. AKSHNA CHOPRA for v paper of LLM previous.

 

 

DATE

Supervisor   

                                                                                                                     

DR. mahesh mathur                                                                                    

Astt.  Lecturer Law faculty

Jai Narayan Vyas University , Jodhpur                                           

                  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Thanks

,

I am very pleased with the Presentation of The Title “PRE-NATAL DIAGNOSTIC TECHNIQUES lAWS & FACT(PNDT LAWS & FACT IN INDIA)” named doctrinal research is prepared by me with the guidance of my teacher DR. MAHESH MATHUR.

It is no wonder that   “PRE-NATAL DIAGNOSTIC TECHNIQUES lAWS & FACT(PNDT LAWS & FACT IN INDIA)”are  so long. Without you, we would have been lost. Thank you teacher for guiding us, inspiring us and making us. 

I will always remember that I had an excellent guide in the form of a teacher, I found guidance, discipline and everything addition to my qualifications and experience, I will bring excellent work habits and judgment to this position.

With the countless demands on your time & supervision for selection of books & other metrical, which help us to get information regarding subject? I also thanks to all information provider they help us.

 I look forward, Again, thank you for your time and consideration. I may not say it always. But, I mean it whenever I say it. Thank You Teacher for all the things you have done for us. I would like to sincerely thank you.

 

Yours sincerely,

AKSHNA CHOPRA

 

 

 

 

 

 

PRE-NATAL DIAGNOSTIC TECHNIQUES lAWS & FACT

(PNDT LAWS & FACT IN INDIA)

 

 

INDEX

 

S.NO  

Chapter- 1 

 

 

Chapter- 2.

 

 

 

Chapter- 3.

 

 

 

Chapter- 4

 

 

 

 

Chapter- 5.

 

 

 

Chapter- 6.  

 

 

 

Chapter- 7. 

                              

TOPIC

The Pre-Natal Diagnostic Techniques (Regulation and Prevention of          Misuse) Amendment Rules, 2003.

 

MODIFICATION IN ACTS/RULES

What are the qualifications for doing ultrasound under PNDT act

 

Need to amend PNDT Act to check unlawful practices, says HC

 

Need THE PRE-NATAL DIAGNOSTIC TECHNIQUES (PNDT) ACT & RULES

 

REGULATION OF PRE-NATAL DIAGNOSTIC TECHNIQUES

 

punishment under PNDT Act factual report on a stats (Hariyana) 

 

Limitation conferred on the parliamentary privileges

 

 

 

       

 

Chapter- 1

 

The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 amended in 2002, as The Pre Conception and Pre Natal Diagnostic Techniques (Prohibition of Sex Selection) – PCPNDT - Act specifically provides for the ‘prohibition of sex selection’, for the ‘regulation of prenatal diagnostic techniques’ and prevention of their misuse for ‘sex determination leading to female foeticide’. The PCPNDT Act differs from the Medical Termination of Pregnancy (MTP) Act, which provides for ‘termination of certain pregnancies by registered medical practitioners’, as defined under the Act. Thus, the right to safe and legal abortion in India is a limited right available to women under stipulated circumstances mentioned in the MTP Act. The PCPNDT Act covers all reproductive technologies; it also strengthens the roles of supervisory boards and advisory committees at various levels. In case convening/Appropriate Authorities are not making these committees effective, the activists/civil society members can use the Right to Information (RTI) Act for questioning and may even go for Public Interest Litigation (PIL) for proper enforcement of the law. The two-part discussion on the PCPNDT Act initiated in March 2009 by Solution Exchange for Gender Community (cross posted with Maternal and Child Health Community) has drawn attention to four key areas for further ‘deliberation and action’. These include Challenges in implementing the Act, Strategies to implement it, citing of ‘Live Cases/Evidences’ of abuse/violation of the Act and Reviewing the Act per se, focusing on specific Sections (of the Act) keeping in mind the need for Amendment/strict implementation. The discussion identified multiple challenges. These include for instance, lack of awareness regarding the Act (mostly applicable to the implementing authorities), inactive role of the Appropriate Authorities, ambiguity in monitoring the utilization facilities available in clinics for sex detection and the lackadaisical attitude of PCPNDT Committees (supervisory boards, advisory committees) at different levels. Added to the list of challenges, is the questionable role of medical practitioners in particular, in perpetuating sex detection leading to female foeticide. Multiple challenges imply multiple strategies and interventions at multiple levels. Presently, there are two paths clearly identified: advocacy-based campaigns, and the proper implementation of the Act. Any advocacy-based campaign needs to follow a ‘rights based approach’. One of the ways to make campaigns effective especially with young people is to include the issue as part of their curriculum. There is suggestion to involve spiritual and religious leaders as well for advocacy purposes. Experience in engaging with them has shown that often their messages have led to pro-life and anti-abortion stances, which can be counterproductive and detrimental to the cause of women’s rights. Incentives and disincentives for bearing and bringing up the girl child may also be counter productive, as it tends to reinforce the stereotype of the girl child being a liability rather than an asset. In terms of proper implementation of the Act, first, Appropriate Authorities need to be more accountable in their action and performance. Second, there is a need to ensure greater vigilance over the clinics and diagnostic centers; and how the technologies therein are used. Third and importantly, the law clearly states that sex selection/determination / female foeticide is a cognizable, non-bailable, and non-compoundable offence and therefore anyone including doctors who are indulging in such unethical and illegal practices is liable for punishment irrespective of the plea of social pressure or demand. In their efforts, the Appropriate Authorities need to exert themselves by planning frequent raids involving decoy operations to catch the culprits, prepare cases with evidence and follow up in the law courts. The sting operations in different parts of the country (Uttar Pradesh, Rajasthan or Maharashtra), may have been successful in identifying the culprits but following-up on many of these cases have unfortunately shown that preparation of the cases by Appropriate Authorities is not done sincerely and diligently. This results in acquittal. The few cases, which have so far ended in conviction for substantive offence (e.g. the cases in Faridabad District of Haryana) under the PCPNDT Act, need to be widely publicized. All Appropriate Authorities must draw inspiration from such cases and follow similar processes. The large number of challenges invariably throw open manifold strategies, drawing attention to some of the ‘live cases’ or ‘evidences’ of abuse/violation of the Act. This helps all those striving to ensure the implementation of the Act to become acutely aware of the various loopholes, limitations, obstacles that emerge in the path of implementation. Take for instance, the case cited of a (anonymous) pregnant woman allegedly pressurized by her husband and in-laws to commit sex selection and her subsequent distressing experience with the PCPNDT Act, and the attitude of the implementing authorities. There is a need to bring out such cases into the open to understand, how to apply the PCPNDT Act better, how to create advocacy for such cases, which can mobilize public opinion and action, and how such women can find support when their families do not stand with them. There are also lessons to learn from the practices undertaken to implement the Act in States particularly indicating the worst declining sex ratios e.g. Punjab, Delhi, and Haryana. Initiatives in Andhra Pradesh (by a District Collector) have not only shown how to implement the law but also the needed will and motivation to implement it. Similarly, efforts of institutions like CEHAT (Maharashtra), Campaign Against Sex Selective Abortion (CASSA; Tamil Nadu), Datamation Foundation (Delhi), SUTRA (Himachal Pradesh) - all deserve recognition. The discussion clearly brought to the fore, the roles of different stakeholders in implementing the Act and curbing sex selection. Undoubtedly, to change the (existing) ‘mindset’, there is a need to look closely at different segments of the society – from the user, to the service provider, to the community at large. The PCPNDT Act gives ample scope to all the stakeholders to enable them to play their roles. Proactive vigilance particularly by the community members and Non Governmental Organizations in exposing unethical practitioners and insincere authorities is necessary. This, however, cannot be at the expense of reducing the responsibility and the accountability of the actual implementing authority. In the long drawn struggle to address sex selective abortions leading to female foeticide, the medical professionals appear to carry the ‘heaviest burden’. The reason is simple. Their involvement is critical to the implementation of the Act. The Act is not to victimize the medical professionals though it tends to regulate individual medical professionals, not the institutions. (Not all states have laws regulating the setting up of nursing homes and hospitals. The need is for a uniform law, so that regulation and monitoring becomes possible). There is immense scope for involving doctors in a positive way. Efforts of Indian Medical Association to initiate a forum, Doctors Against Sex Section (DASS) is perhaps one such example. The implementation of the Act calls for a review for several reasons. As experience show, efforts are generally towards using the less stringent parts of the Act rather than the more stringent ones. For example, in the Anonymous case cited during the discussion, rather than dealing with the case under more stringent provisions of the Act, the focus seemed to have been on the ‘non-traceability of Form F’. There are other contentions regarding the Act. For instance, the Act also does not define “geneticist” i.e. who is meant to advice on whether the unborn child is deformed or genetically compromised (to lead to abortion). Nowhere the Act specifies, what is their training to detect abnormality, what is their education; hence, any medicinal professional can proclaim himself or herself to be a professional geneticist and recommend a sex determination test or an ultrasound. (Further, the Act has virtually done away with the distinction between requiring an ultrasound to ‘detect an abnormality’ and ‘a normal development’). While some continue to argue for an amendment to the Act, some focus on its implementation. A strict implementation of the Act would mean an ultrasound must be justified by the needs of the pregnant woman (and not by the need to make money). A paper trail will be necessary, as proper documentation can ensure proper implementation. Technology also needs regulation and seen in a responsible way; hence, the need to track every machine and the purpose of its use. A strict implementation of the Act would also mean, no radiologist or sonographer can conduct a sex determination test or a sonography on pregnant women without the written reference from a medical professional mentioning the reasons for the test and all such records must be available for random scrutiny. (Obviously, the referring doctor must have good reason to refer the woman for a sonography; and therefore called, if necessary, to justify the reason). There is perhaps no ambiguity that to begin with the problem is essentially a social one, embedded in patriarchal norms. The root of the problem is son preference. Son preference exists because women are devalued; they are less than human! Is sex selective abortion not holding up a mirror, telling that women are unwanted, a burden on their parents and on society (and done to death in their matrimonial homes)? The need is to build a society, which respects women as human beings and does not consider them a liability. The need is to build safe societies, not abort the girl child! Respect the right to an abortion as a reproductive right but recognize and condemn sex selection and sex selective abortion as an act of discrimination. Society must now recognize that it is engaging in a self-defeating exercise, eliminating women may mean the end of civilization, and nothing less than the survival of the race would be at stake. Perhaps, the change has to begin at the top, not at the bottom when it comes to attitude towards women. Those at the top in positions of leadership need to send a message to others and become role models. The discussion put forth incisive analysis and insightful suggestions and strategies. The next step calls for sharing it with central and state governments as well as the civil society. The discussion needs to become a basis for follow-up action as well as documenting systematically the promising practices to curb sex determination and sex selective abortions leading to female foeticide.

 

Chapter-2.

MODIFICATION IN ACTS/RULES

i).

There is a need to strengthen the provisions of the    Act  and make the sex selection practices, a high risk  business, instead of a low risk business. Penalties for  offences should be made more stringent as it is  ‘murder in the womb’.

ii)

   NCW and SWCs must be represented at the appropriate levels in the advisory and the monitoring committees and the appropriate authorities and advisory committee and may also be given the power for periodic inspection of centers and clinics.

iii).

 Under the Act, violation of the provisions is punishable with imprisonment and fine, whereas under Rule 11(2) if  the appropriate Authority seizes any ultrasound machine or other equipment capable of detecting sex of fetus which is used by an organization not registered under the act, the machine of the organization is released only on payment of penalty equal to five times the registration fee and on such organization giving an undertaking that it will not indulge in detection of sex of foetus or selection of ser before and after  conception.

The Rule takes away the rigor of the punishment provisions under the Act. It permits a clinic/ laboratory to run without  registration, thus indulging in violation of the provisions of the act but it can be let off merely on payment of affine and undertaking.. This rule is required to be deleted; otherwise it will be misused by ‘those who are indulging in heinous practice of sex determination of fetus.

iv).

The mandatory regular submission of Form F by all clinics to the AAs must be ensured through Rule 9(8). This would make it possible also to monitor abortions conducted after 12 weeks of pregnancy. A team for auditing these documents regularly to help the AAs may be formed possibly by using law interns for the purpose. It shall be mandatory for all registered centre’s to maintain all records, charts, forms reports consent letters for a period of two years or until permitted by the concerned AA.  These must be available for inspection by AAs or any other person authorized by AAs or by the National Commission for Women or the State commission. If records are not properly maintained this may lead to suspension of registration.

v).

Use of decoy customers and sting operations should be made an integral part of the strategy to catch the doctors/clinics indulging in the illegal practice of sex-determination and sexselection of the foetus. It has been effectively used in Haryana and Rajasthan where the first case of conviction has come by using decoy customer. 

vi)

Rule 3 provides the minimum requirements for a  Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre.  There requirements of personnel and equipment for the last three categories are clubbed together under Rule 3 (2) There should be a provision for separate registration  of sonography / imaging techniques and gynaecological techniques like Amniocentesis and Chronic Villi Biopsy  (CVB) as their requirements are totally different. In the case of gynaecological techniques too, the applicant  should have the choice  to register  for one or more specific techniques.

vii)

All powers of the Appropriate Authorities may  be clubbed together under Sec. 17 A of the Act. Therefore, Sec. 30 (1) and 30 (2), which deal with search and seizure and empower the AAs ( or a person authorized by it) with the provisions of Code of Criminal Procedure,  1973, need to be included under Sec. 17 A to get a comprehensive view of the power of the AA. The provisions under Code of Criminal Procedure,   1973,  Page | 37 which would help the AA in its search and seizure operations, should be explicitly mentioned. 

viii)

The role of the police in the implementation of this Act needs further elaboration. However, in the absence of clear guidelines, AAs often find it difficult to seek  help from the police while conducting raids,  searching premises, seizing and sealing equipments  and records. At times, without  such help, the AA  may not be able perform its duty if confronted by vested interests.

ix)

There is a need to regulate indiscriminate supply/sale  of ultrasound machines suitable provisions need to be made in the Act. One of the loopholes in the Act which requires to be plugged is that there is no mandatory provision for regulating the suppliers of machines.

x)

‘Quacks’ should also come within the purview in the Act.

xi)

Crackdown on advertisements

 

Female Population

As per Census 2001, at all India level, the total population consists of 37.1% rural males, 35.08 % rural females, 14.64 % urban males and 13.18 % urban females.

The total female population (all ages) is 49.6 crores which constitute 48.26 % of the country’s total population. (1 Crore = 10 Million)

The total women count (female >14 yrs.) is 32.23 Crores which is 31.34 % of the total population.

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