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.