by Introduction
The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act) stands as a pivotal legislation in India aimed at curbing the practice of pre-natal sex determination. Enacted to address the alarming issue of declining sex ratios and the consequential rise in female foeticide, this act holds significant importance in safeguarding the rights and lives of the girl child.
Under the provisions of the PCPNDT Act, any genetic counseling center, genetic laboratory, or genetic clinic involved in pre-natal diagnostic techniques, such as in vitro fertilization (IVF) with the potential for sex selection (Preimplantation Genetic Diagnosis), falls within the ambit of regulation. The act serves as a preventive measure against the misuse of technology for sex determination and selection, striving to promote gender equality and combat gender-based discrimination in society.
By prohibiting practices that lead to gender-biased sex selection, the PCPNDT Act plays a crucial role in fostering a more equitable and inclusive society in India. It endeavors to protect and uphold the rights of the girl child, ensuring their survival and promoting their well-being from the very beginning stages of conception.
Objectives of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
The objectives of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act) are aimed at addressing the pervasive issue of sex-selective practices and female foeticide in India. Here are the key objectives of the PCPNDT Act:
Ban on Sex Selection Techniques: The primary objective of the PCPNDT Act is to prohibit the use of sex selection techniques before or after conception. By banning prenatal sex determination, the act aims to prevent the misuse of diagnostic technologies for sex-selective abortions.
Prevention of Female Foeticide: The act seeks to curb the practice of female foeticide, which has been fueled by social discrimination against women and a preference for male offspring. By criminalizing sex-selective practices, the PCPNDT Act aims to protect the lives of female foetuses and promote gender equality.
Regulation of Prenatal Diagnostic Techniques: The PCPNDT Act focuses on regulating the use of pre-conception and prenatal diagnostic techniques to ensure that they are not misused for determining the sex of the foetus. This regulation helps in preventing the selective abortion of female foetuses.
Promotion of Girl Child Welfare: The enforcement of the PCPNDT Act is aimed at promoting the welfare of girl children in India. By discouraging sex-selective practices and promoting the value of girl children in society, the act aims to address gender bias and discrimination.
Community Monitoring and Accountability: The act emphasizes community involvement in monitoring and evaluating the implementation of the PCPNDT Act. By engaging with community stakeholders, implementing agencies are held accountable for enforcing the provisions of the act effectively.
Utilization of Healthcare Workers: The PCPNDT Act mandates the involvement of Anganwadi personnel and Accredited Social Health Activists (ASHAs) in tracking pregnancies, Medical Termination of Pregnancies (MTP), and birth registration. This helps in ensuring compliance with the act at the grassroots level.
Enforcement and Monitoring: The act calls for thorough audits of the forms filled for pregnant patients in clinics to identify any violations of the PCPNDT Act. By locating and penalizing offenders, the act aims to deter illegal sex determination and selective abortion practices.
National, State, and District-level Planning: The PCPNDT Act advocates for the development of annual plans at the national, state, and district levels to effectively implement the provisions of the act and combat sex-selective practices across different regions of the country.
Important Definitions the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
Under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, the following definitions are provided:
Conceptus: Refers to any product of conception at any stage of development from fertilization until birth, encompassing extraembryonic membranes as well as the embryo or foetus.
Foetus: Describes a human organism during the period of its development starting on the fifty-seventh day following fertilization or creation (excluding any time in which its development has been suspended) and continuing until birth.
Genetic Counseling Centre: Defined as an institute, hospital, nursing home, or any place that offers genetic counseling services to patients.
Genetic Clinic: Refers to a clinic, institute, hospital, nursing home, or any facility used for conducting pre-natal diagnostic procedures.
Explanation: For the purpose of this definition, ‘Genetic Clinic’ includes a vehicle where ultrasound machines, imaging machines, scanners, or other equipment capable of determining the sex of the foetus or portable equipment with the potential for sex detection during pregnancy or sex selection before conception is employed.
Genetic Laboratory: Denotes a laboratory or facility where analysis or tests of samples received from Genetic Clinics for pre-natal diagnostic tests are conducted.
Explanation: For the purpose of this definition, ‘Genetic Laboratory’ encompasses a place where ultrasound machines, imaging machines, scanners, or other equipment capable of determining the sex of the foetus or portable equipment with the potential for sex detection during pregnancy or sex selection before conception is utilized.
Medical Geneticist: Includes an individual possessing a degree or diploma in genetic science related to sex selection and pre-natal diagnostic techniques, or having at least two years of experience in the field after obtaining:
(i) Any medical qualification recognized under the Indian Medical Council Act, 1956; or
(ii) A post-graduate degree in biological sciences.
Pre-Natal Diagnostic Procedures: Encompasses all gynaecological, obstetrical, or medical procedures like ultrasonography, foetoscopy, and collection or removal of samples for analysis or pre-natal diagnostic tests conducted in Genetic Laboratories or Genetic Clinics for sex selection before or after conception.
Pre-Natal Diagnostic Test: Involves ultrasonography or any test or analysis conducted on amniotic fluid, chorionic villi, blood, tissue, or fluid of a pregnant woman or conceptus to detect genetic disorders, metabolic disorders, chromosomal abnormalities, congenital anomalies, hemoglobinopathies, or sex-linked diseases.
Sex Selection: Includes any procedure, technique, test, administration, prescription, or provision intended to ensure or enhance the probability of an embryo being of a particular sex.
Important Provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
Regulation of Genetic Counselling Centers, Genetic Laboratories and Genetic Clinics
Under Section 3 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, the following provisions are outlined regarding the regulation of Genetic Counselling Centers, Genetic Laboratories, and Genetic Clinics:
Registration Requirement: No Genetic Counselling Centre, Genetic Laboratory, or Genetic Clinic can conduct or be involved in activities related to prenatal diagnostic techniques unless they are registered under this Act.
Qualification Requirement: Genetic Counselling Centres, Genetic Laboratories, and Genetic Clinics are prohibited from employing or engaging any individual, whether on an honorary basis or for payment, who does not possess the prescribed qualifications.
Restriction on Conducting Pre-Natal Diagnostic Techniques: Medical geneticists, gynaecologists, paediatricians, registered medical practitioners, or any other individual are not allowed to conduct or assist in conducting prenatal diagnostic techniques at any location other than a place registered under this Act.
Prohibition of Sex Selection: No person, including specialists or teams of specialists in infertility, can conduct or assist in conducting sex selection on a woman, man, both, or on any tissues, embryos, conceptuses, fluids, or gametes derived from them.
Prohibition on Sale of Diagnostic Equipment: It is prohibited to sell any ultrasound machine, imaging machine, scanner, or any other equipment capable of detecting the sex of the foetus to Genetic Counselling Centres, Genetic Laboratories, Genetic Clinics, or any other person not registered under the Act.
Under Section 4 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, the following important provisions are outlined regarding the regulation of pre-natal diagnostic techniques
Regulation of Pre-Natal Diagnostic Techniques: No place, including a registered Genetic Counselling Centre, Genetic Laboratory, or Genetic Clinic, can be utilized by any individual for conducting pre-natal diagnostic techniques except for specific purposes specified in the Act.
Purposes of Pre-Natal Diagnostic Techniques: Pre-natal diagnostic techniques can only be conducted for the detection of abnormalities such as chromosomal abnormalities, genetic metabolic diseases, haemoglobinopathies, sex-linked genetic diseases, congenital anomalies, and any other abnormalities or diseases specified by the Central Supervisory Board.
Conditions for Conducting Pre-Natal Diagnostic Techniques: Pre-natal diagnostic techniques can only be used if certain conditions are fulfilled, such as the age of the pregnant woman being above thirty-five years, a history of spontaneous abortions or foetal loss, exposure to teratogenic agents, family history of genetic diseases, or any other condition specified by the Central Supervisory Board.
Restriction on Seeking Pre-Natal Diagnostic Techniques: No person, including a relative or husband of the pregnant woman, can request or encourage the conduct of pre-natal diagnostic techniques except for the specified purposes.
Prohibition on Sex-Selection Techniques: It is prohibited for any person, including relatives or spouses, to seek or encourage the conduct of sex-selection techniques.
Regarding Section 5 of the Act
Written Consent and Prohibition of Communicating Foetal Sex: Individuals conducting pre-natal diagnostic procedures are required to explain all known side effects, obtain written consent from the pregnant woman in a language she understands, and provide a copy of the consent to the pregnant woman.
It is prohibited for anyone conducting pre-natal diagnostic procedures to communicate the sex of the foetus to the pregnant woman, her relatives, or any other person through words, signs, or any other means.
Under Section 6 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, the following provisions are outlined regarding the determination of sex:
Prohibition on Determination of Sex: Genetic Counselling Centres, Genetic Laboratories, or Genetic Clinics are prohibited from conducting or allowing the conduct of pre-natal diagnostic techniques, including ultrasonography, for the purpose of determining the sex of a foetus within their facilities.
Individual Prohibition: No person is allowed to conduct or cause to be conducted any pre-natal diagnostic techniques, including ultrasonography, for the purpose of determining the sex of a foetus.
Prevention of Sex Selection: It is prohibited for any person, through any means, to cause or allow the selection of sex before or after conception.
Constitution of Central Supervisory Board
The Central Supervisory Board under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, is constituted as follows:
Chairman: Minister in charge of the Ministry or Department of Family Welfare (ex-officio)
Vice-Chairman: Secretary to the Government of India in charge of the Department of Family Welfare (ex-officio)
Members:
Three members appointed by the Central Government representing:
- Ministry of Women and Child Development
- Department of Legal Affairs or Legislative Department in the Ministry of Law and Justice
- Indian System of Medicine and Homoeopathy (ex-officio)
- Director General of Health Services of the Central Government (ex-officio)
Ten members appointed by the Central Government, including:
- Two eminent medical geneticists
- Two eminent gynaecologists and obstetricians or experts of stri-roga or prasuti-tantra
- Two eminent paediatricians
- Two eminent social scientists
- Two representatives of women welfare organizations
Three women Members of Parliament, including:
- Two elected by the House of the People
- One elected by the Council of States
Four members appointed by the Central Government to represent States and Union territories:
- Two in alphabetical order
- Two in reverse alphabetical order
Appointments under this clause require recommendations from the respective State Governments or Union territories
Member-Secretary: An officer of the Central Government, not below the rank of a Joint Secretary or equivalent, in charge of Family Welfare (ex-officio)
This composition ensures a diverse representation of stakeholders and experts to oversee and implement the provisions of the PCPNDT Act effectively.
Terms of office for Members:
The terms of office for members of the Central Supervisory Board under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, are structured as follows:
Term Duration:
Three Years: Members appointed under Ten members appointed by the Central Government, including:
- Two eminent medical geneticists
- Two eminent gynaecologists and obstetricians or experts of stri-roga or prasuti-tantra
- Two eminent paediatricians
- Two eminent social scientists
- Two representatives of women welfare organizations
Three women Members of Parliament, including:
- Two elected by the House of the People
- One elected by the Council of States
Serve a term of three years. This longer term allows these members to contribute to the Board’s functions, provide expertise, and ensure continuity in decision-making processes.
One Year: Members appointed under Four members appointed by the Central Government to represent States and Union territories:
- Two in alphabetical order
- Two in reverse alphabetical order
Appointments under this clause require recommendations from the respective State Governments or Union territories have a term of one year. This shorter-term duration is likely intended to promote regular rotation and fresh perspectives within the Board, especially for members representing States and Union territories.
Casual Vacancies: In the event of a casual vacancy due to death, resignation, or incapacity of a member, the Central Government fills the vacancy by making a fresh appointment.
The newly appointed member serves for the remainder of the term of the vacating member, maintaining continuity in the Board’s operations.
Functions of the Vice-Chairman: The Vice-Chairman is tasked with performing functions as assigned by the Chairman periodically. This role ensures efficient coordination within the Board and assists in the smooth conduct of its activities.
Procedures for Discharge of Functions: The members are required to follow prescribed procedures in the discharge of their functions. These procedures likely ensure consistency, transparency, and adherence to legal and ethical standards in the Board’s decision-making processes.
Disqualifications for Appointment as Member: A person shall be disqualified for being appointed as a member if he/she:
- Has been convicted and sentenced to imprisonment for an offence involving moral turpitude in the opinion of the Central Government.
- Is an undischarged insolvent.
- Is of unsound mind and stands so declared by a competent court.
- Has been removed or dismissed from the service of the Government or a Corporation owned or controlled by the Government.
- Has, in the opinion of the Central Government, such financial or other interest in the Board that is likely to affect prejudicially the discharge of his functions as a member.
- Has, in the opinion of the Central Government, been associated with the use or promotion of pre-natal diagnostic technique for determination of sex or with any sex selection technique.
Functions of the Central Advisory Board
The Central Supervisory Board under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, is tasked with various functions to ensure the effective implementation of the Act and to address issues related to prenatal sex determination and sex-selective abortions. The functions of the Central Supervisory Board include:
Advising the Central Government on Policy Matters: The Board advises the Central Government on policy matters concerning the use of pre-natal diagnostic techniques, sex selection techniques, and measures to prevent their misuse.
Reviewing and Monitoring Implementation: The Board reviews and monitors the implementation of the Act and the rules made thereunder. It also recommends changes to the Act and rules to the Central Government for enhancing its effectiveness.
Creating Public Awareness: The Board works to create public awareness against the practice of pre-conception sex selection and the prenatal determination of the sex of the fetus, which can lead to female foeticide.
Establishing a Code of Conduct: The Board lays down a code of conduct to be followed by individuals working at Genetic Counselling Centres, Genetic Laboratories, and Genetic Clinics to ensure ethical practices and standards.
Overseeing Performance and Ensuring Implementation: The Board oversees the performance of various bodies established under the Act and takes appropriate measures to ensure the proper and effective implementation of the provisions of the PCPNDT Act.
Other Prescribed Functions: The Board may also perform any other functions as prescribed under the Act or as necessary to fulfill its objectives and obligations under the PCPNDT Act.
Constitution of State Supervisory Board and Union Territory Supervisory Board under the PCPNDT Act
Functions of the Board:
- Creating public awareness against pre-conception sex selection and pre-natal determination of sex leading to female foeticide.
- Reviewing activities of Appropriate Authorities and recommending actions.
- Monitoring Act implementation and making recommendations to the Board.
- Sending consolidated reports to the Board and Central Government.
- Performing any other functions prescribed under the Act.
Composition of the State Board:
Chairperson: Minister in charge of Health and Family Welfare in the State.
Vice-Chairperson: Secretary of the Department of Health and Family Welfare.
Members:
- Secretaries or Commissioners of Women and Child Development, Social Welfare, Law, and Indian System of Medicines and Homoeopathy.
- Director of Health and Family Welfare or Indian System of Medicines and Homoeopathy.
- Three women members of Legislative Assembly or Legislative Council.
- Ten appointed members, including eminent individuals from various fields.
- eminent social scientists and legal experts
- eminent women activists from non-governmental organizations or otherwise
- eminent gynaecologists and obstetricians or experts of stri-roga or prasuti tantra
- eminent paediatricians or medical geneticists
- eminent radiologists or sonologists
- Officer not below the rank of Joint Director in charge of Family Welfare as Member Secretary.
Meetings: The State Board shall meet at least once in four months.
Quorum: One-third of the total number of members.
Term of Office: Non-ex-officio members serve three-year terms.
Vacancies filled by fresh appointments.
Membership Changes: Member becoming Minister, Speaker, Deputy Speaker, Chairperson, or Deputy Chairperson of Legislative bodies ceases membership.
Co-option of members allowed when needed, not exceeding one-third of total strength.
Powers: Co-opted members have same powers except voting rights and must follow rules.
Procedures: State Board follows applicable procedures and conditions for unspecified matters.
Registration of Genetic Counselling Centres, Genetic Laboratories, or Genetic Clinics
Prohibition on Opening: No individual can establish a Genetic Counselling Centre, Genetic Laboratory, or Genetic Clinic post the amendment of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act in 2002 without proper registration.
This applies to facilities equipped with technologies capable of determining fetal sex and engaging in sex selection procedures.
Registration Process: Applications for registration must be submitted to the Appropriate Authority according to the prescribed form, manner, and fee requirements.
Transition for Existing Centers: Genetic facilities involved in counseling or prenatal diagnostic techniques before the commencement of this Act must apply for registration within sixty days of its enactment.
Ceasing Operations without Registration: Genetic facilities conducting counseling or diagnostic procedures must cease operations within six months of the Act’s commencement if not registered earlier or during the application process.
Registration Criteria: Registration requires satisfaction of the Appropriate Authority regarding the facility’s ability to provide necessary services, maintain equipment, and meet prescribed standards.
Registration Process under the PCPNDT Act
Granting Certificate of Registration: The Appropriate Authority conducts an inquiry to ensure compliance with the PCPNDT Act and its rules.
After satisfying all requirements and considering the Advisory Committee’s advice, the Authority issues a certificate of registration in the prescribed form to the Genetic Counselling Centre, Genetic Laboratory, or Genetic Clinic.
Rejection of Application: If the Authority finds non-compliance after inquiry and hearing the applicant, it can reject the registration application, citing reasons in writing.
Renewal of Registration: Certificates of registration need renewal following the prescribed process, timeline, and fee payment.
Display of Registration Certificate: Registered facilities must prominently display their certificate of registration at their business premises for public visibility.
Cancellation or Suspension of Registration under the PCPNDT Act
Initiation of Action: The Appropriate Authority can take action suo moto or based on a complaint by issuing a notice to the Genetic Counselling Centre, Genetic Laboratory, or Genetic Clinic. The notice states reasons for potential suspension or cancellation of registration.
Show Cause Notice: The facility is given a chance to present its case before the Authority. After hearing and considering advice from the Advisory Committee, the Authority may suspend or cancel the registration if it finds a breach of the PCPNDT Act or its rules.
Suspension or Cancellation: Suspension: The Authority can suspend the registration for a specified period if it deems fit, without prejudice to any criminal actions.
Cancellation: In serious cases, the registration may be canceled based on the nature and severity of the breach.
Public Interest Suspension: The Authority can suspend the registration without prior notice if it believes it is necessary in the public interest. Reasons for this action must be recorded in writing.
Prohibition of advertisement relating to pre-natal determination of sex and punishment for contravention
Prohibition of Advertisements: Individuals, organizations, Genetic Counselling Centers, Genetic Laboratories, Genetic Clinics, or any facility capable of determining the sex of a fetus are prohibited from issuing, publishing, distributing, or communicating any advertisement related to pre-natal determination of sex or sex selection.
This prohibition applies to all forms of advertising, including on the internet, for services related to sex determination before conception.
Penalties: Violation of the above provisions in subsection (1) or (2) can lead to imprisonment for up to three years and a fine of up to ten thousand rupees.
The term “advertisement” encompasses various forms of communication, including electronic or print media, and visible representations like hoardings or wall paintings.
Offences and penalties
Penalties for Medical Professionals: Medical geneticists, gynecologists, registered medical practitioners, or individuals associated with Genetic Counselling Centers, Genetic Laboratories, or Genetic Clinics who contravene the Act or its rules can face imprisonment for up to three years and a fine of up to ten thousand rupees.
Subsequent Convictions: Subsequent convictions may result in imprisonment up to five years and a fine up to fifty thousand rupees.
Reporting to Authorities: The name of the medical practitioner must be reported to the State Medical Council by the Appropriate Authority for necessary action if charges are framed by the court.
Suspension & Removal: Conviction can lead to suspension or removal of the practitioner’s registration.
Penalties for Seeking Sex Selection: Individuals seeking sex selection or conducting prenatal diagnostic techniques for unauthorized purposes can face imprisonment for up to three years and a fine of up to fifty thousand rupees for the first offence.
Subsequent offences: Subsequent offences can lead to imprisonment up to five years and a fine up to one lakh rupees.
Presumption in the case of conduct of prenatal diagnostic techniques
The court shall presume that a pregnant woman was compelled by her husband or relative to undergo prenatal diagnostic techniques for unauthorized purposes unless proven otherwise. The person compelling the woman can be held liable for abetment of the offence.
Penalty for contravention of the provisions of the Act or rules
Violations of the Act or its rules without specific penalties specified can lead to imprisonment for up to three months, a fine of up to one thousand rupees, or both.
Continuous contravention can result in an additional fine for each day of non-compliance after the first conviction.
Offences by Companies under the PCPNDT Act
Offences by Company: If a company commits an offence under the PCPNDT Act, every individual in charge of and responsible for the company’s business at the time of the offence is considered guilty. Both the company and the responsible individuals can be prosecuted and punished.
Liability of Responsible Individuals: Individuals in positions of authority within the company, such as directors, managers, secretaries, or officers, can also be held accountable if an offence is committed with their consent, connivance, or due to their neglect.
Proof of Innocence: An individual can avoid punishment if they can prove that they were unaware of the offence or had taken all necessary precautions to prevent its occurrence.
Definition Clarification:
Company: Refers to anybody corporate, including a firm or association of individuals.
Director: In the context of a firm, denotes a partner in that firm.
Nature of Offences under the PCPNDT Act
Offences Nature: Every offence under the PCPNDT Act is considered cognizable, non-bailable, and non-compoundable. This means that these offences are serious in nature and entail stricter legal procedures.
Cognizance of Offences: Complaint Requirement: No court can initiate proceedings for an offence under this Act unless a complaint is filed by:
The relevant Appropriate Authority or an authorized government officer.
A person, including a social organization, who has given a notice of at least fifteen days to the Appropriate Authority regarding the alleged offence and their intent to file a complaint.
Court Jurisdiction: Only a Metropolitan Magistrate or a Judicial Magistrate of the first class is authorized to try offences punishable under this Act.
Access to Records: If a complaint is filed as per the above conditions, the court can request the Appropriate Authority to provide copies of relevant records to the complainant.
Conclusion:
In conclusion, the implementation and impact of the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act have been significant in addressing the issues of female foeticide and skewed sex ratios in India. While there remains a persistent societal bias towards male offspring and challenges in changing deep-rooted attitudes, the Act has played a crucial role in monitoring and preventing gender-based selective abortions.
The rise in the sex ratio, with 108.18 men for every 100 women, and various government initiatives like the “Mukhbir Yojna” to incentivize reporting of illegal practices, demonstrate the Act’s effectiveness in curbing female foeticide. However, there is still a need for widespread awareness campaigns, especially in rural areas, to combat this heinous crime and promote gender equality.
It is essential to strike a balance between enforcing the law to protect female foetuses and ensuring that medical professionals are not unfairly targeted for minor infractions. Proper scrutiny and regulation of clinics, hospitals, and nursing homes are necessary to uphold medical ethics while also recognizing doctors’ duty to provide care to all patients. Continued efforts from various stakeholders, including the media, social workers, and medical personnel, are vital to foster a society that values the lives of all individuals, regardless of gender.
