Project Assignment Submission on Prenatal Diagnostic Techniques (PDF)

SCHOOL OF LAW AND GOVERNANCE PROJECT ASSIGNMENT SUBMISSION ON AN OVERVIEW OF PRE-NATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) ACT 1994 UNDER THE SUPERVISION OF DR. PALLAVI SINGH, ASSISTANT PROFESSOR, SCHOOL OF LAW AND G...

SCHOOL OF LAW AND GOVERNANCE PROJECT ASSIGNMENT SUBMISSION ON AN OVERVIEW OF PRE-NATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) ACT 1994 UNDER THE SUPERVISION OF DR. PALLAVI SINGH, ASSISTANT PROFESSOR, SCHOOL OF LAW AND GOVERNANCE (CENTRAL UNIVERSITY OF SOUTH BIHAR) SUBMITTED BY:- JAYA BHARTI BALLB (HONS.) 5TH SEMESTER ENROLLMENT NUMBER: - CUSB2213125044 SUBJECT: - WOMEN AND CRIMINAL LAW (SECTION: B) 1  Acknowledgement It is a great pleasure to express my deep sense of thanks and gratitude to my course instructor and guide Dr. Pallavi Singh. Her dedication and keen interest above all and her overwhelming attitude to help her students had been solely and mainly responsible for completing my work. Her scholarly and timely advice, meticulous scrutiny, and her logical approach have helped me to a very great extent to accomplish my project in an excellent manner. I owe a deep sense of gratitude for making sure that we are provided with the best facilities and surroundings to fetch the best out of ourselves. Her prompt inspirations and timely suggestions with kindness, enthusiasm and dynamism have also enabled me to complete my project on time. It is my great privilege to thank my parents for their constant encouragement throughout my research period. Jaya Bharti 2  Table of Contents Acknowledgement................................................................................................................ 2 Introduction.......................................................................................................................... 4 Background of the PNDT Act.............................................................................................. 4 Features of the PNDT Act.................................................................................................... 4 Offences under the Act......................................................................................................... 5 An overview of the PNDT Act............................................................................................. 5 The Central Supervisory Board and the State Supervisory Board....................................... 7 Advisory Committees and Appropriate Authorities............................................................ 9 Registration for PNDT....................................................................................................... 10 Offences and it’s penalties under the PNDT Act............................................................... 10 Amendment to the PNDT Act............................................................................................ 11 Consequences of the amendment....................................................................................... 12 Loopholes in the PNDT Act............................................................................................... 12 Landmark cases.................................................................................................................. 13 Conclusion.......................................................................................................................... 14 References.......................................................................................................................... 15 3  Introduction The Pre-Natal Diagnostic Techniques (PNDT) Act, 1994, is a landmark Indian legislation aimed at preventing the misuse of prenatal diagnostic techniques for sex-selective abortion, thereby promoting a balanced sex ratio and protecting the rights of the girl child. Enacted in response to the alarming decline in the female population due to female feticide, the Act regulates the use of ultrasonography and other prenatal diagnostic techniques to prevent the determination of the sex of the fetus, ensuring their ethical application and safeguarding the well-being of unborn girls. Sex selection has been going on for a while. All areas of India and all walks of life are affected by patriarchal traditions that date back thousands of years. The census of 1991 revealed that there were significantly fewer females than boys. The child sex ratio shows that the decline in the female birthrate is concerning. There have been results of research that demonstrated that even in the twenty-first century; boys were still preferred over girls. There was a need for a comprehensive law making gender testing illegal in the Indian States since the practice of determining the sex of foetuses as a result of technological advances had compelled the government to establish legislation so that female feticide could be prohibited or regulated. Between 0 and 6 years old, there were 919 females for every 1000 boys in 20111, down from 927 in 2001 and 945 in 1991. The main objective of the act is the arrest of the declining sex-ratio in India due to rampant female foeticide. Background of the PNDT Act India's skewed sex ratio, with fewer females per 1000 males, prompted concerns about the declining number of girls. The availability of prenatal diagnostic techniques like ultrasound led to widespread sex- selective abortion, exacerbating the issue. To address this, the Indian government enacted the PNDT Act to regulate the use of such techniques and ensure their ethical application. The Indian government approved the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act (PNDT) in 1994, and it went into force on January 1st, 1996. However, preconception sex selection has become feasible due to regular scientific advancements. The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act was renamed in 2003 when changes were made to the Act to incorporate this. Policymakers changed the Act’s title to guarantee that sex selection is prohibited both before and after conception as a result of the country’s declining child sex ratio. Features of the PNDT Act The PNDT statute defines sex selection as the process of determining the foetus’s sex and removing it if it is of undesirable sex. The principal features of the Act are: 1 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5441446/ 4   The Act forbids sex discrimination both before and after conception.  By limiting their usage to detecting genetic abnormalities, metabolic diseases, chromosomal abnormalities, certain congenital deformities, hemoglobinopathies, and sex-related illnesses, it controls the use of pre-natal diagnostic methods including ultrasonography and amniocentesis.  The sex of the foetus will not be determined by any test, including ultrasonography, at any laboratory, centre, or clinic.  No one, not even the person performing the legal process, is allowed to express the sex of the foetus to the expectant mother or her family by words, signs, or any other means. Offences under the Act o Conducting or aiding in prenatal diagnostic techniques in unregistered facilities is an offense under the act. o Sex selection on a man or woman is prohibited by the act. o Performing prenatal diagnostic techniques for any purpose other than the one specified in the act is an offense. o The sale, distribution, supply, renting, etc. of any ultrasound machine or any other equipment capable of detecting the sex of the fetus is prohibited by the act. An overview of the PNDT Act Techniques for prenatal diagnosis Pre-natal diagnostic techniques include all pre-natal diagnostic procedures and pre-natal diagnostic tests.2 1. Pre-natal diagnostic procedures mean all gynaecological or obstetrical or medical procedures such as  Ultrasonography;  Foetoscopy;  Taking or removing samples of 2 Section 2 (j) of PNDT Act 5  o amniotic fluid o chorionic villi o blood o any tissue o fluid of a man or a woman before or after conception for being sent to a Genetic Laboratory or Genetic Clinic for conducting any type of analysis or pre-natal diagnostic tests for selection of sex before or after conception.3 2. Pre-natal diagnostic test means:  Ultrasonography  Test or analysis of: o amniotic fluid o chorionic villi o blood o any tissue o fluid of any pregnant woman or conceptus conducted to detect:  genetic disorders  metabolic disorders  chromosomal abnormalities  congenital anomalies  Haemoglobinopathies  Sex-linked diseases.4 3. Sex selection includes:  Procedure  Technique  Test  Administration  Prescription  Provision of anything for the purpose of ensuring or increasing the probability that an embryo will be of a particular sex.5 3 Section 2 (i) of PNDT Act 4 Section 2 (k) 5 Section 2(o) 6 Places: A. Genetic Counselling Centre means:  An institute  Hospital  Nursing home  Any place by whatever name called which provides genetic counselling to patients.6 B. Genetic Clinic means:  A clinic  Institute  Hospital  Nursing home  Any place by whatever name called which is used for conducting pre-natal diagnostic procedures.7 C. Genetic Laboratory means  a laboratory; and  includes a place: where facilities are provided for conducting analysis or tests of samples received from Genetic Clinic for pre-natal diagnostic tests.8 The Central Supervisory Board and the State Supervisory Board Chapter IV (Sections 7 to 16(a)) covers the establishment of the Central Supervisory Board, which will, among other things, examine and keep an eye on how the Act and Rules are being implemented. State and Union Territory Supervisory Boards are to be created for the same purpose under Section 16(a). Constitution of the Central Supervisory Board The constitution of the Central Supervisory Board (CSB) is done by the Union Government to exercise the authority and carry out the duties entrusted to the Board by this Act. The CSB is constituted according to Section 7 of the PNDT Act. The board shall consist of:9 1. The Chairperson, ex officio, shall be the Minister responsible for the Ministry or Department of Family Welfare. 6 Section 2 (c) 7 Section 2 (d) 8 Section 2 (e) 9 Section 7(2) 7  2. Renowned obstetricians and gynaecologists; 3. Renowned paediatricians; 4. Renowned social scientists; and 5. Representatives of groups that support women; 6. Three female lawmakers, two of whom will be chosen by the House of Representatives and one by the Council of States; Duties of Board Board would have the following duties:10  To provide policy advice to the Central Government about the use of prenatal diagnostic tools, sex-selection tools and precautions against their abuse;  To examine and track the application of the Act and the rules issued under it, and to suggest amendments to the Central Government;  To educate the public about the harmful practises of pre-conception sex selection and prenatal foetal sex determination that can result in female foeticide;  To establish a code of behaviour for staff members at genetic counselling facilities, genetic research facilities, and genetic clinics; State supervisory boards Section 16A talks about the state supervisory boards (SSB). The functions of the SSB The State Supervisory Board must convene at least once every four months and perform the following duties: 1. To raise awareness among the general public about the state’s practice of pre-conception sex selection and prenatal foetal sex determination that results in female foeticide; 2. To examine the actions of the state’s relevant authorities and suggest appropriate action against them; 3. To provide the Board with appropriate suggestions about the execution of the Act’s and regulations’ provisions. 4. Sending the Board and the Central Government any consolidated reports that may be required about the different Act-related activities carried out in the State; 10 Section 16 8  Advisory Committees and Appropriate Authorities Chapter V (Section 17, 17(A)) includes Advisory Committees and Appropriate Authorities. The appropriate authorities are granted a wide range of powers, including the ability to issue, revoke, or suspend a centre’s registration, as well as the ability to look into complaints and take legal action. The Appropriate Authorities have the authority to issue search warrants, require the production of documents, and call people, among other things.11 The State Appropriate Authority is a multi-member organisation made up of:  A member of the Joint Director of Health and Family Welfare-Chairperson rank or above;  A prominent woman representing the interests of a women’s organisation; and  A member of the state’s or union territory’s law department Appropriate authorities must be appointed at the district and sub-district levels as well, per Supreme Court directives. The Civil Surgeons, or Chief Medical Officers, have been recognised as the appropriate authorities at the district level. Duties of Appropriate Authorities The appropriate authority’s duties include:  To accept registration application submissions  To approve, revoke, or suspend the registration and enforce the requirements for genetic counselling offices, clinics, and laboratories  Should review all Form Fs filled out for each ultrasound, including the whole justification for the scan and its outcome. The Powers of the Appropriate Authorities The following powers have been granted to the appropriate authority: 1. Summoning anybody who has knowledge of a breach of this Act’s norms or provisions to appear in court. 2. Production of any record or tangible thing pertaining to violations 3. Issuing a search warrant for any location where prenatal sex determination or sex selection practices are allegedly being used; and Composition of Advisory Committees 1. Three medical professionals are chosen among obstetricians, paediatricians, gynaecologists, and medical geneticists; 11 Section 17 9  2. One legal expert 3. A single official to represent the State Government’s communication and publicity department or the Union Territory, as applicable; 4. Three accomplished social workers, at least one of them must be a representative of a women’s organisation. Registration for PNDT All bodies under the PNDT Act namely Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic as defined in the preceding chapters cannot function unless registered.12 The requirement of registration is mandatory whether the body is government, private, voluntary, honorary, part-time, contractual or consultative. However the PNDT Act allows registration of these bodies either separately or jointly when a body is for instance both a centre and a clinic. Procedure for Registration a) Every application for registration shall be made:  to the Chief Medical Officer of the district; or any other medical officer constituted as appropriate authority  Medical officer constituted as appropriate authority for the sub-district within whose area or jurisdiction the centre, clinic or laboratory is situated.13 b) The Appropriate Authority or any authorised person will acknowledge the application in the acknowledgement slip provided at the bottom of Form A on the very same day if personally delivered, otherwise on the next day by post.14 Offences and it’s penalties under the PNDT Act The Preconception and Prenatal Diagnostic Techniques Act’s (PNDT) Section 22-26 outlines the offences covered by this law and the penalties that may be imposed.  Section 22– Under Section 22, advertising of any clinic, laboratory, or other location that uses radiography, imaging methods, etc. in connection with a facility for prenatal sex determination is forbidden. Any violation of the provisions in this section will result in a penalty, which includes up to three years in prison and a fine that might reach ten thousand rupees.15 12 Section 3 (1) of the Act 13 Rule 4 (1) under the PNDT Rules 14 Rule 4 (2) under the PNDT Rules. 15 Sections 22 (3), 23 (1) and 23 (3) of the Act 10   Section 23– While Section 23 addresses this, any gynaecologist, other health practitioners, owner of a genetic laboratory, counselling centre, or clinic, or employee of such a location who renders his professional or technical services and does so in violation of any provisions under this Act is also in violation of the law. A fine of up to 10,000 rupees and a sentence of up to three years in imprisonment to the offender under Section 22 of the Act. And, if convicted again, the penalty could be increased to five years’ imprisonment and a fine of up to 50,000 rupees under Section 23 of the Act16. The relevant authority may notify the state medical council of the name of the concerned medical petitioner, according to clause (2) of this Section. If a person consults a genetic counselling centre, clinic, or laboratory for any cause other than those listed in subsection (2) of Section 4, they might face up to five years in jail and a fine of 50,000 rupees. Additionally, a second conviction carries a penalty of up to five years in jail and a fine of one lakh rupees.17 Additionally, Section 24 of the Act presumes that the spouse and her family are responsible for pressuring a woman to have a diagnosis other than the diagnostic procedures listed in Section 4(2). And, under Section 23(3), such a person is held accountable for aiding an offence and is subject to a penalty for that offence. Section 25 specifies the penalty for the violation of the PNDT Act’s requirements. If no punishment is specified elsewhere in this Act for such a violation. Such a penalty may include three-month imprisonment, or a fine of up to a thousand rupees, or both. This fine may increase on a subsequent conviction. The amount is increased to 500 rupees per day for as long as there are other convictions following the first one. Under Section 26, the offences committed by businesses, whether intentionally or negligently, are covered. The person in charge of the administration of the organisation will be held accountable and punished appropriately if such an offence is committed with his or her permission. Every offence is cognizable under Section 27, which also prohibits bail and compounding. Amendment to the PNDT Act To better control the technology used in gender selection, the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT), was amended in 2003 to The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (PCPNDT Act). 16 Sections 23 (1) of the Act 17 Section 23 (3) of the Act. 11  Consequences of the amendment The primary goal of the Act’s amendment was to include the practice of pre-conception sex selection. The following things have been added in the amendment of 2003:  Including ultrasonography in its scope  Constitution of a state-level supervisory board and the strengthening of the central supervisory board  Making provisions for harsher penalties  granting the competent authorities the right to use a civil court to search for, confiscate, and seal the violators’ machines and equipment  limiting the sale of ultrasound equipment to authorised organisations Loopholes in the PNDT Act Chances of corruption Registration of Genetic Guidance Centers and Laboratories may only be used to legalise private clinics that continue to engage in these operations for financial gain despite the law’s ineffective deterrents. Additionally, licencing would open up a new door for corruption to get around the paperwork. We are now more conscious that these tests should only be conducted in publicly accountable government hospitals rather than endorsing the private sector. Elimination of fear The appropriate authorities have confiscated the ultrasound device in multiple instances. According to the PNDT Act’s provisions, if the Appropriate Authority seizes any ultrasound equipment or other foetal sex detection equipment used by an organisation not registered under the Act, then the organization’s machine is only released upon payment of a penalty equal to five times the registration fee and upon receipt of an assurance from the organisation that it will not engage in foetal sex detection or sex selection before or after conception. This proviso eliminates the Act’s fear or deterrent elements. It merely communicates that after making a minimal payment and submitting an undertaking, the person may continue working. To stop encouraging those who commit this offence to break the rules of this Act, this rule should either be repealed or changed. No local authorities The establishment of local vigilance committees, which would aid in effective implementation, is not contemplated, and the only nominal entities are those at the central and state levels. Due to the 12 extremely high earnings made from this industry, the punishment for the offenders is minimal and incapable of serving as a deterrent. Updating the Act Future sex-determination methods being developed, such as testing for craniate cells in maternal blood, subtle sex-pre-selection methods like electrolysis, Ericsson’s approach, etc., are currently not covered by the legislation. If emerging technologies do not expand the reach of the law, they will quickly steer away from the horrible issues that it must confront. Landmark cases Union of India v. Vinod Soni & Others18 In this case, the petitioners were a married couple. They had essentially raised two arguments against the Act’s constitutionality: first that it violates Article 14 of the Indian Constitution, and second, that it violates Article 21. However, the Article 14 challenge was not pushed into submission at the time of the hearing. However, the Hon’ble High Court pointed out the flaw in this justification by stating that “the right to personal liberty cannot be stretched in any way to include the freedom to forbid the conception of a female or male foetus, which should be left to the will of nature.” The High Court held that “these rights, even if further expanded to the extremes of the possible elasticity of the provisions of Article 21, cannot include the right to selection of sex, whether preconception or post-conception,” citing Supreme Court decisions that explain that Article 21 includes the right to food, clothing, a decent environment, and even protection of cultural heritage. The High Court noted that “this Act is factually enacted to advance the child’s right to complete development as provided for under Article 21.” Therefore, regardless of the infant’s sex, a conceived child has a right to full development under Article 21. As a result, the High Court rejected the petition; ruling that there was no evidence at all that Article 21 of the Constitution was violated. Saksham Foundation Charitable Society v. Union of India19 The petitioner challenged the constitutional validity of provisions prohibiting disclosure of sex of the foetus [Section 5(2)] and banning sex determination [Sections 6(a) and 6(b)] before the Allahabad High Court. The petition sought directions for legalization of sex determination and compulsory disclosure of the sex of the foetus on the premise that such measures would record and prevent sex selection. Dismissing the writ petition, the Court held that PCPNDT Act did not violate Articles 14 and 21 of the Constitution of India, and that the object of the statute was to ensure that diagnostic techniques are not misused for sex determination and sex selection. 18 2005 Cri LJ 3408 (Bom) 19 (2014) 5 All LJ 496 13 Vijay Sharma v. Union of India20 The petitioners contended that PCPNDT Act was violative of Article 14 of the Indian Constitution as it did not account for the grave mental injury caused to prospective mothers carrying an unwanted female or male foetus for the second time, while the MTP Act factored the mental injury caused by unwanted pregnancies. Upholding the constitutionality of the PCPNDT Act, the Bombay High Court observed that the two legislations operate in different spheres and have different objects. It held that sex selection offends the right to life and dignity of women as a group, and that mothers wishing to select the sex of their offspring form a different category from those desiring termination of pregnancy on grounds stipulated under the MTP Act. Conclusion The level of PNDT Act knowledge fell short of expectations. Women’s attitudes towards the sex of children and societal factors that favour male offspring are still ingrained in society. It is imperative that the media, social workers, and medical personnel take an active role in educating the public and changing women’s attitudes. The most prevalent goals of the pre-conception and pre-natal diagnostic procedures Act of 1994 are to monitor female foeticide and prevent it from occurring. After being put into effect, its effectiveness is clear. A good indicator is that the PNDT Act’s sex ratio has risen to 108.18 men for every 100 females, or 947 females for every 1000 males, and is increasing at an estimated annual rate of 0.19 percent. Although there is still a lack of knowledge of the crime of female foeticide in rural India, the government has introduced several programmes to combat it and promote the welfare of girls. in order for people in rural India to stop these activities. The “Mukhbir Yojna” is one such plan. A person who notifies the government department of any doctor or other medical personnel engaging in the practice of sex determination or female foeticide would receive a reward of 2 lakh rupees. At last, it can be seen that the medical and health law regarding protecting the female foetus has resulted in some changes, but the medical fraternity needs to be protected at the same time from these minor offences. For this reason, the right to operate a clinic, hospital, or nursing home with all of these regulations that are in harmony with the responsibilities of doctors and medical ethics needs to be properly examined, as doctors owe a constitutional duty to treat the sick and injured. 20 AIR 2008 Bom 29. 14  References 1. https://www.indiacode.nic.in/bitstream/123456789/8399/1/pre-conception-pre-natal-diagnostic- techniques-act-1994.pdf 2. Handbook on Pre-Conception & Pre-Natal Diagnostic Techniques Act, 1994 and Rules with Amendments 3. https://blog.ipleaders.in/pre-conception-and-pre-natal-diagnostic-techniques-prohibition-of-sex- determination-act-2003/#References 4. E-Book On Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 5. https://byjus.com/free-ias-prep/pre-conception-and-pre-natal-diagnostic-techniques-prohibition- of-sex-selection-act-1994/ 6. https://www.drishtiias.com/daily-updates/daily-news-analysis/pre-conception-and-pre-natal- diagnostic-techniques-pcpndt-act-1994 7. The PC-PNDT act in a nutshell – PMC 8. The PC-PNDT act in a nutshell 15