Sex Selection and the Missing Daughters

And the technology. None of the four causes is new; the ultrasound is. Prenatal diagnosis converted a preference that used to be expressed after birth into one expressible before it, which is why a statute about MACHINES was the response.

The Act of 1994

Its title and history. Enacted as the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994, in force from 1 January 1996, and renamed and substantially amended by the Amendment Act of 2002 with effect from 14 February 2003, which brought PRE-CONCEPTION sex selection within it and inserted sections 3A and 3B.

Section 2, definitions. Genetic Counselling Centre, Genetic Clinic, Genetic Laboratory, pre-natal diagnostic procedures, pre-natal diagnostic techniques, sex selection, sonologist or imaging specialist, and the Appropriate Authority.

Section 3. Regulation of Genetic Counselling Centres, Laboratories and Clinics: none may be used or conduct these activities unless registered, and only persons with the prescribed qualifications may be employed.

Section 3A, prohibition of sex selection. No person, including a specialist or team of specialists in the field of infertility, shall conduct or cause to be conducted or aid in conducting sex selection ON A WOMAN OR A MAN OR ON BOTH, or on any tissue, embryo, conceptus, fluid or gametes derived from either or both.

Section 3B. No person shall sell an ultrasound machine, imaging machine, scanner or other equipment capable of detecting the sex of a foetus to any Centre, Laboratory, Clinic or person not registered under the Act.

Section 4, the permitted purposes. Prenatal diagnostic techniques may be conducted only for the detection of chromosomal abnormalities, genetic metabolic diseases, haemoglobinopathies, SEX-LINKED GENETIC DISEASES, congenital anomalies, and any other abnormality or disease specified by the Central Supervisory Board; and only where the person qualified to conduct them is satisfied, FOR REASONS RECORDED IN WRITING, that one of the stated conditions is fulfilled: that the pregnant woman is above thirty-five; that she has had two or more spontaneous abortions or foetal losses; that she has been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals; that she or her spouse has a family history of mental retardation or physical deformities such as spasticity or another genetic disease; or any other condition specified by the Board.

Section 5, consent and communication. No procedure may be conducted unless the practitioner has explained all known side and after effects to the pregnant woman, has obtained her WRITTEN CONSENT in the prescribed form in a language she understands, and has given her a copy. And by sub-section (2), NO PERSON, including the person conducting the procedure, shall communicate to the pregnant woman or her relatives or any other person the sex of the foetus by words, signs, or in any other manner.

Section 6, determination prohibited. No Centre, Laboratory or Clinic shall conduct, and no person shall conduct or cause to be conducted, any prenatal diagnostic technique INCLUDING ULTRASONOGRAPHY for the purpose of determining the sex of a foetus; and no person shall by whatever means cause or allow to be caused selection of sex before or after conception.

Sections 7 to 16A, the Boards. The Central Supervisory Board, its composition, term, meetings, temporary association of persons, officers, authentication, disqualifications and reappointment; its functions in section 16, which include advising the Government on policy, reviewing implementation, recommending changes, and creating public awareness against the practice of pre-conception and prenatal determination of sex; and, by section 16A, State and Union Territory Supervisory Boards.

Sections 17 and 17A, the Appropriate Authority. Appointed for the whole or part of a State or Union Territory, and for a State it must be MULTI-MEMBER, with an officer of or above the rank of Joint Director of Health and Family Welfare as chairperson, an eminent woman representing a women's organisation, and an officer of the Law Department. Its functions include registration, enforcement, investigation of complaints, and the taking of legal action; and section 17A gives it the powers of summoning, search and seizure and of sealing and seizing equipment.

Sections 18 to 21. Registration of Centres, Laboratories and Clinics; the certificate of registration; cancellation or suspension after notice and hearing, and in the public interest without notice for reasons recorded; and appeal.

Section 22, advertisement. No person, organisation, Centre, Laboratory or Clinic, including any clinic having an ultrasound, imaging machine, scanner or other technology capable of determining sex, shall issue, publish, distribute or communicate any advertisement in any form INCLUDING ON THE INTERNET regarding facilities for prenatal determination of sex or pre-conception sex selection. Contravention is punishable with up to three years and a fine up to ten thousand rupees.

Section 23, offences and penalties. A medical geneticist, gynaecologist, registered medical practitioner or owner or employee of a Centre, Laboratory or Clinic who contravenes the Act or the rules: up to three years and a fine up to ten thousand rupees, and on a subsequent conviction up to five years and up to fifty thousand rupees. The Appropriate Authority reports the practitioner's name to the STATE MEDICAL COUNCIL for suspension of registration, five years on a first conviction and permanently on a subsequent one. And by sub-section (3), any person who SEEKS THE AID of a clinic or practitioner for sex selection or for prenatal diagnosis for a purpose other than those in section 4(2): up to three years and a fine up to fifty thousand rupees for a first offence, and up to five years and up to a hundred thousand rupees subsequently.

Section 24, the presumption. Notwithstanding the Evidence Act, the court SHALL PRESUME unless the contrary is proved that the pregnant woman WAS COMPELLED by her husband or any other relative to undergo the technique for a purpose other than those in section 4(2), and that person is liable for abetment under section 23(3).

Section 24 is the provision that answers the obvious objection. Section 23(3) punishes the person who seeks the aid of the clinic, and the woman is often the person physically present; section 24 presumes that she was compelled and transfers liability to the husband or relative.

Sections 25 to 32. A residual penalty for contravention where no specific punishment is provided; offences by companies; every offence COGNIZABLE, NON-BAILABLE AND NON-COMPOUNDABLE; cognizance only on a complaint by the Appropriate Authority or by a person who has given fifteen days' notice to it, and only by a Metropolitan Magistrate or Judicial Magistrate of the first class; maintenance of records; power to search and seize; protection of action taken in good faith; and rule-making.

CEHAT

Facts. Centre for Enquiry into Health and Allied Themes v. Union of India, (2003) 8 SCC 398, decided 10 September 2003 by M.B. Shah and Arun Kumar JJ, following earlier orders of 2001 and 2003. A public interest petition on the non-implementation of the Act: Appropriate Authorities not appointed or single-member, Supervisory Boards not constituted in several States, records not maintained, and clinics unregistered.

Held. The Court directed compliance with its earlier orders and added its own. Information about the Act to be published by advertisement and on electronic media UNTIL there is public awareness that there should be no discrimination between a male and a female child. The quarterly reports of Appropriate Authorities to the Supervisory Board to be consolidated and PUBLISHED ANNUALLY for the public. Appropriate Authorities to maintain the records of all meetings of the Advisory Committees. The National Monitoring and Inspection Committee to continue to function and to report to the Central and State Supervisory Boards until the Act is effectively implemented. Public access to the records under the rules. And the named States to constitute State Supervisory Boards under section 16A and to appoint multi-member Appropriate Authorities.

Why it matters. It shows the shape of the enforcement problem. The Act is not defective; the AUTHORITIES, the records and the inspections it depends on were not there. The remedy the Court could give was publication and monitoring, and that is a good illustration of how far a court can go, and no further, worked in [What Law Cannot Do: The Limits of Legislating Change].

Why prosecutions are rare

Because the offence is a conversation. Section 5(2) forbids communicating the sex by words, signs OR IN ANY OTHER MANNER, and the offence is usually committed by a nod, a colour of pen, or the date given for the next appointment. There is nothing to seize.

Because the complainant is the accused. Under section 23(3) the person who seeks the aid of the clinic is guilty, so the family will not complain. Section 24's presumption protects the woman and does not produce a witness.

Because cognizance is restricted. Section 28 allows a complaint only by the Appropriate Authority, or by a person who has given it fifteen days' notice, which makes enforcement depend on the same authority CEHAT found had not been appointed.

Because the paperwork offence is what gets prosecuted. In practice most convictions are for failure to maintain form F records under section 29 and the rules, rather than for the determination itself, and there is a standing argument about whether that is a sensible proxy or a distraction.

And because the machine moved. Portable ultrasound, and travel to another district or State, defeat a registration-based scheme.

A worked example

A woman of thirty attends a registered clinic with her husband. She has one daughter. The sonologist performs an ultrasound, records no reason in writing, and tells the husband "everything is as you wished". The pregnancy is terminated the following week at a different clinic.

Was the technique lawfully conducted at all? No. Section 4(2): only for the six categories of abnormality; and section 4(3): only where one of the conditions is satisfied and the reasons are RECORDED IN WRITING. She is thirty, so the age condition fails, and no reason was recorded.

Was the sex communicated? Section 5(2) forbids communicating it by words, signs or IN ANY OTHER MANNER, and "as you wished" is within it. The absence of the word "girl" is not a defence.

Who is liable? The sonologist and the owner under section 23(1), up to three years and ten thousand rupees, with a report to the State Medical Council for suspension of registration. The HUSBAND under section 23(3) as a person seeking the aid of the clinic for a purpose other than those in section 4(2).

And the woman? Section 24: the court shall presume, unless the contrary is proved, that she was COMPELLED by her husband or a relative, and he is liable for abetment.

Is the termination an offence under this Act? No. The Act does not prohibit abortion; the Medical Termination of Pregnancy Act governs that, and this Act reaches the DETERMINATION and the SELECTION. Keep the two statutes apart, which is the next chapter.

Who may prosecute? Section 28: the Appropriate Authority, or a person who has given it fifteen days' notice, before a Magistrate of the first class. The offence is cognizable, non-bailable and non-compoundable under section 27.

What this does NOT mean

It does not mean the Act prohibits abortion. It prohibits determining and communicating sex and prohibits sex selection. Termination is governed by the Medical Termination of Pregnancy Act 1971.

It does not mean ultrasound is prohibited. It is regulated: registration, permitted purposes, recorded reasons and written consent.

It does not mean the woman is a criminal. Section 24 presumes she was compelled, and shifts the liability.

And it does not mean the ratio is the Act's fault when it falls or its credit when it rises. Dowry, inheritance, patrilocality and old-age support are the causes, and the Act reaches only the technology.

Quick revision

Cause: dowry, patrilocality, inheritance and old-age support through sons, ritual obligation, plus the technology that let the preference operate before birth. Measure: the child sex ratio, which fell as ultrasound spread and fell furthest in prosperous districts.

PCPNDT Act 1994, in force 1 January 1996, renamed and widened to PRE-CONCEPTION by the Amendment Act of 2002 with effect from 14 February 2003. s.3 registration; s.3A no sex selection on a woman, a man, or any tissue, embryo, conceptus, fluid or gametes; s.3B no sale of ultrasound equipment to the unregistered; s.4 permitted purposes, six categories, and the conditions with REASONS RECORDED IN WRITING, including age above thirty-five, two or more spontaneous abortions, exposure to teratogenic agents, and family history; s.5 written consent in a language she understands, and NO communication of the sex by words, signs or in any other manner; s.6 determination prohibited, including by ultrasonography, and no causing of sex selection before or after conception;

ss.7 to 16A the Central and State Supervisory Boards; ss.17 and 17A the multi-member Appropriate Authority with search and seizure powers; ss.18 to 21 registration, cancellation and appeal; s.22 no advertisement, including on the internet; s.23 penalties, three years and ten thousand rupees, five years and fifty thousand on a subsequent conviction, report to the State Medical Council, and s.23(3) for the person who SEEKS the aid; s.24 the PRESUMPTION that the woman was compelled; s.27 cognizable, non-bailable, non-compoundable; s.28 complaint only by the Appropriate Authority or on fifteen days' notice to it. CEHAT 2003: publication, annual consolidated reports, records of Advisory Committee meetings, the National Monitoring and Inspection Committee, public access, and multi-member Authorities.

Test yourself

1. What exactly does the Act prohibit, and what does it not? It prohibits sex selection before or after conception, the determination of the sex of a foetus, and the communication of that sex to anyone by any means, and it regulates who may conduct prenatal diagnostic techniques, for what purposes and on what recorded conditions. It does not prohibit abortion, which is governed by the Medical Termination of Pregnancy Act, and it does not prohibit ultrasound, which it regulates.

2. State the conditions in section 4(3) and the requirement attached to them. That the pregnant woman is above thirty-five; that she has undergone two or more spontaneous abortions or foetal losses; that she has been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals; that she or her spouse has a family history of mental retardation or physical deformities such as spasticity or another genetic disease; or any other condition specified by the Central Supervisory Board. The qualified person must be satisfied of one of them FOR REASONS RECORDED IN WRITING.

3. What does section 24 presume, and why is it needed? That the pregnant woman was compelled by her husband or any other relative to undergo the technique for a purpose other than those permitted, unless the contrary is proved, and that person is liable for abetment. It is needed because section 23(3) makes the person who seeks the aid of the clinic guilty, and without the presumption the woman herself would be the accused.

4. Why are prosecutions rare? Because the offence is a communication that leaves nothing to seize; because the family that sought the test is guilty under section 23(3) and will not complain; because section 28 confines cognizance to a complaint by the Appropriate Authority or on fifteen days' notice to it; because most prosecutions in practice are for record-keeping failures; and because portable machines and travel across districts defeat a registration-based scheme.

5. What did CEHAT direct, and what does the case show? Publication of information about the Act by advertisement and electronic media until public awareness is achieved; annual consolidated publication of the Appropriate Authorities' quarterly reports; maintenance of records of Advisory Committee meetings; the continuation of the National Monitoring and Inspection Committee, reporting to the Supervisory Boards; public access to records; and the constitution of State Supervisory Boards and multi-member Appropriate Authorities in the named States. It shows that the failure was of the authorities and records the Act depends on, not of the statute, and that publication and monitoring are the outer limit of what a court can supply.