Sex Selection: the PCPNDT Scheme

In one line

The clearest case in Indian law of a statute passed because a technology threatened a right, and it does not ban the machine.

In the wording a student can write in an exam: the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994 answers a capability rather than a substance: ultrasonography and related techniques made the sex of a foetus knowable before birth, and the response was not to prohibit the technique, which has genuine diagnostic value, but to confine its purposes under section 4, to prohibit the communication of the sex of the foetus under section 5(2), to prohibit sex determination and sex selection under section 6, and to prohibit advertisement under section 22.

Why the law has this at all

This is the paradigm dual use problem from [Dual Use: the Same Technology Both Ways], and it is worth setting out because the Act's structure follows directly from it.

The same ultrasound scan that detects a chromosomal abnormality, a congenital anomaly or a sex-linked genetic disease also reveals the sex of the foetus. There is no separate machine and no separate procedure. A prohibition on the technology would remove a diagnostic capability of real value to pregnant women, and would defeat the right to enjoy the benefits of scientific progress. A permission unaccompanied by control produced, on the evidence that prompted the legislation, the elimination of female foetuses on a scale visible in the sex ratio of a population.

Parliament therefore regulated the use, the communication of the result, and the premises, leaving the technique lawful. That is the model response to a dual use technology, and a candidate who says so has connected this chapter to Module I.

Note also what the harm is, because it is unusual in this module. The wrong is not done to the person on the table. It is done to the foetus and, cumulatively, to the sex ratio of a population, and the pressure to seek the information usually comes from the woman's family. The Act therefore restricts information in order to protect the woman, which cuts against the assumption running through the rest of this module that autonomy favours disclosure.

Sections 1 to 3B: application, definitions and who may act

Section 1 gives the short title, extent and commencement. The long title and the short title were both substituted in 2003, when the Act was extended from pre-natal diagnostic techniques to pre-conception sex selection.

Section 2 contains the definitions, including Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, pre-natal diagnostic procedures, pre-natal diagnostic techniques and sex selection.

Section 3 regulates Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics: no such Centre, Laboratory or Clinic shall conduct or associate with, or help in, the conduct of activities relating to pre-natal diagnostic techniques unless registered under the Act, and no person shall conduct such activities except at a registered place and unless qualified as prescribed.