Practice of eliminating female foetus by use of pre-natal diagnostic techniques
Practice of eliminating female foetus by use of pre-natal diagnostic techniques
The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 is an outcome of concern shown by both the Houses of Parliament. A Joint Committee of both the Houses prepared and presented a report in December, 1992.
Pre-natal diagnostic techniques
On the basis of report/ recommendations aforesaid, a Bill was introduced in the Parliament. The basic reason of the worry/concern was that in the recent past Pre-natal Diagnostic Centres sprang up in the urban areas of the country using pre-natal diagnostic techniques for determination of sex of the foetus.
Such centres became very popular and their growth was tremendous as the female child is not welcomed with open arms in most of the Indian families. The result was that such centres became centres of female foeticide. Such abuse of the technique is against the female sex and affects the dignity and status of women.
Various Organisations working for the welfare and uplift of the women raised their heads against such an abuse. Justice Leila Seth in her book “Talking of Justice” has quoted Rabindranath Tagore. Tagore said “every time a child is born, it brings with it the hope that God is not yet disappointed with man.”
After quoting Tagore, learned author expressed her pain by saying that “it appears to me that when a girl child is born in India, more often than not, man is disappointed with God. The birth of first daughter is often considered bad luck, the second a disaster and third a catastrophe”.
Rabindra Nath Tagore long back said:-
“O’ Lord, why you have not given woman the right to conquer her destiny? Why does she have to wait head bowed by the road side Waiting with tired patience hoping for a miracle on the morrow”
Needless to mention that said morrow has not yet come. Unless the society is enlightened and law is enforced strictly, such goal cannot be achieved. Despite showing concern and formulation of law on the subject, it is a matter of common knowledge that such incidents of female foeticide are going on and that is the reason sex ratio is falling down in various cities. This is happening mainly in Northern part of India. The Act of 1994 and Rules made there under needs to be strictly implemented.
The Supreme Court also expressed its concern over the incidents of female foeticide in (2013) 4 SCC 1 & 401 ( Voluntary Health Association of Punjab Vs. Union of India and Ors.). The Apex Court opined that Indian society’s discrimination towards the female child still exists due to various reasons which has its roots in the social behavior and prejudices against the female child and due to the evils of dowry system still prevailing in the society in spite of its prohibition under the Dowry Prohibition Act.
The decline in the female child ratio all over the country leads to an irresistible conclusion that the practice of eliminating female foetus by the use of pre-natal diagnostic techniques is widely prevalent in the country. Parliament wanted to prevent the same and enacted the Act of 1994.
But the provisions of the Act of 1994 are not properly and effectively being implemented. Mushrooming of various pre-natal diagnostic centres in almost all parts of the country calls for more vigilance and attention by the authorities under the Act of 1994.
But unfortunately their functioning is not being properly monitored or supervised by the authorities under the 1994 Act to find out whether they are misusing the said techniques. Seldom the machines used in said illegal purpose are seized and even if seized, they are released to the violators of the law only to repeat the crime.
Hardly any cases under the 1994 Act end in conviction and such cases are pending disposal for several years. Many of the ultrasonography clinics seldom maintain any record as per the rules. Many of the clinics are totally unaware of the Government notifications and amendment of the rules concerned.
It is further held that the object of the 1994 Act was to provide for 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.
The purpose of the enactment can only be actualized and its object fruitfully realized when the authorities under the 1994 Act carry out their functions with devotion, dedication and commitment and further there is awakened awareness with regard to the role of women in a society. It would not be an exaggeration to say that a society that does not respect its women cannot be treated to be civilized.
When a female foeticide takes place, every woman who mothers the child must remember that she is killing her own child despite being a mother. That is what abortion would mean in social terms. Abortion of a female child in its conceptual eventuality leading to killing of a woman. Law prohibits it; scriptures forbid it; philosophy condemns it, ethics deprecate it, morality decries it and social science abhors it.
The innocence of a child and the creative intelligence of a woman can never ever be brushed aside or marginalized. Civilization of a country is known by how it respects its women. It is the requisite of the present day that people are made aware that it is obligatory to treat the woman with respect and dignity so that humanism in its conceptual essentiality remains alive. Each member of the society is required to develop a scientific temper in the modern context because that is the social need of the present.
In para 9 of the aforesaid judgment certain directions were given to the Supervisory Board, Advisory Committee and authorities. These directions are required to be implemented strictly. The female foeticide has become a concern for the nation.
It is profitable to refer to certain provisions of the Act of 1994 and Rules made thereunder. Section 4 of the Act of 1994 deals with regulation of pre-natal diagnostic techniques. This provides that on and from the commencement of this Act,
(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:-
(i) age of the pregnant woman is above thirty-five years;
(ii) the pregnant woman has undergone two or more spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals;
(iv) the pregnant woman or her spouse has a family history of mental retardation or physical deformities such as, spasticity or any other genetic disease;
(v) any other condition as may be specified by the Board.”
Section 5 is couched in a mandatory language. It prescribes that no pre-natal diagnostic procedure can be applied unless the procedure prescribed in this section is fulfilled. The same reads as under:-
(a) he has explained all known side and after effects of such procedures to the pregnant woman concerned;
(b) he has obtained in the prescribed form her written consent to undergo such procedures in the language which she understands; and
(c) a copy of her written consent obtained under clause (b) is given to the pregnant woman.
(2) No person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives the sex of the fetus by words, signs or in any other manner.
Section 23 deals with “offences and penalties”, which reads as under:-
“23. Offences and penalties.–(1) Any medical geneticist, gynecologist, registered medical practitioner or any person who owns a Genetic Counseling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act or rules made thereunder shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees.
(2) The name of the registered medical practitioner who has been convicted by the court under sub-section (1), shall be reported by the Appropriate Authority to the respective State Medical Council for taking necessary action including the removal of his name from the register or the Council for a period of two years for the first offence and permanently for the subsequent offence.
(3) Any person who seeks the aid of a Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic or of a medical geneticist, gynecologist or registered medical practitioner for conducting pre-natal diagnostic techniques on any pregnant woman (including such woman unless she was compelled to undergo such diagnostic techniques) for purposes other than those specified in clause (2) of section 4, shall, be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees.
Section 25 makes it clear that whoever contravenes any of the provisions of this Act or any rules made thereunder, for which no penalty has been elsewhere provided in the Act, shall be punishable with imprisonment for a term which may extend to three months or with fine, which may extend to one thousand rupees or with both. However, in case of continuing contravention, an additional fine may be imposed.
Section 28 makes it clear that no court shall take cognizance of an offence under the Act of 1994 except on a complaint made by (a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or (b) a person who has given notice of not less than fifteen days in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the court.
It is seen that under Section 32 of the Act of 1994, the rules are made, which are known as “The Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (for brevity, the “Rules of 1996”). Rule 9 prescribes the procedure of maintenance and preservation of records. Relevant sub- rules of Rule 9 reads as under:-
(4) The record to be maintained by every Genetic Clinic including a mobile Genetic Clinic, in respect of each man or woman subjected to any pre-natal diagnostic procedure/technique/test, shall be as specified in Form F.
(8) Every Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre shall send a complete report in respect of all pre-conception or pregnancy related procedure/ techniques/tests conducted by them in respect of each month by 5th day of the following month to the concerned Appropriate Authority.”
Rule 10 (1A) reads as under:-
1A. Any person conducting ultrasonography/image scanning on a pregnant woman shall give a declaration on each report on ultrasonography/image scanning that he/she has neither detected nor disclosed the sex of foetus of the pregnant woman to any body. The pregnant woman shall before undergoing ultrasonography/image scanning declare that she does not want to know the sex of her foetus.
Under the Rules of 1996, certain statutory Forms are prescribed in order to give effect to the provisions of the Act and Rules. Statutory Form ‘F’ is prescribed for maintenance of record in respect of pregnant woman by Genetic Clinic/Ultrasound Clinic/Imaging Centre.
A plain reading of this Form makes it clear that various entries are required to be made in this Form. It is followed by a declaration of pregnant woman and declaration of doctor/ person conducting the tests. Form ‘G’ relates to consent for invasive techniques. Form ‘H’ deals with maintenance of permanent record of applications for grant/rejection of registration under the Act of 1994.
If the scheme of the Act is examined, it will be clear that the Act is introduced with a view to check the misuse of scientific techniques for the purpose of sex determination which leads to female foticide. In order to stop the abuse of techniques against female sex and with a view to uplift the dignity and status of woman, the Act is introduced. Various Sections are included in the Act so that the accountability of Centres can be fixed and pre-natal diagnostic techniques can be regulated as per the Act of 1994.
[The above discussion on Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 is extracted from a recent Order in Dr. Pooja Agrawal Vs. Shivbhan Singh Rathore [Madhya Pradesh High Court, 14 Oct 2015] authored by Justice Sujoy Paul]