SEX DETERMINATION TEST UNDER LEGAL SRCUTINY (By- Ayushi Gupta)

SEX DETERMINATION TEST UNDER LEGAL SRCUTINY

Authored By- Ayushi Gupta

Assistant Professor

Asian Law College, Noida

Introduction

Female oppression has its history engraved in stone and has been echoed in every turn of time. In India, women’s status is manifested in practices such as veiling (Purdah or Goonghat), pressures to get young girls married at a very early age, partly to ensure their virginity and partly to ensure compliance with parents’ wishes and respect the choice of spouse. As history has shown time and again, what is more striking with the entire notion of subjugation is that these heinous acts are often carried out by the members of the subordinated gender itself—the women.

The Constitution of India which has been quarried from the mines of various International conventions protects the equality of law to every citizen irrespective of the gender of the citizen, yet the implementation of the laws of the Indian Constitution is not effective and satisfactory. Most of the society still practices taboos, which severely curtails the physical mobility of women and undermines their self-esteem, thus circumscribing their entire existence in essentially repressive ways. Dowry deaths as a phenomena continue to proliferate throughout every nook and corner of the country. Female infanticide reportedly is on the rise and female foeticide has emerged as a phenomenon which cuts across caste, class, race and educational backgrounds in India.

A Historical Study of Sex Preferences in India

A study on the context of ‘value of sons’ in the interiors of Maharashtra shows that aged women, once widowed, have historically depended wholly on the earning of their sons. They have this perception that sons add motivational value to their growth and contribute for the development and prosperity. Various case studies on this observation point out discriminating features and extent of variability in different states of India. To cite an example, Punjab and Haryana, the granaries of India, are victim to one of the most widely subjugated and subordinated conditions of women in the

state, through acts of rampant female foeticide and infanticide. Such incidences in Punjab and Haryana are far more frequent compared to Maharashtra or Kerala. One important landmark research on the position girl child was completed in 1994 under the Department of Women and Child Development, Ministry of Human Resources Development, Government of India[1]. One of the main objectives of these studies was to assess the status of girls within the family in order to predict the position of women of the present century. The findings on socialization of the girls revealed that the birth of a girl child was desired and celebrated by a mere 2% of the families. The report observed, “If there is one cultural trait that cuts across barriers of religion, region and caste, it is the devaluation of the girl child.” As mentioned earlier, the devaluation of a girl child in present day India is manifested in practices such as female foeticide. Female foeticide is a reflection of the woman’s negation of self. The decision to resort to sex determination tests and female foeticide thereafter is many times, taken by the women themselves. These women exhibit their control over their fertility by deciding when to have a male child. They use reproductive technologies like Ultra Sono Graphy (USG) and abortion not to prevent multiple pregnancies which ruin their health but to kill the female foetus once its sex can be illegally determined. The fact that women are indulging in such self-deprecating practice implies that they have internalized the cultural devaluation through their socialization. Thus socialization is the mechanism through which the women acquire the cultural ideas and values which shape their image of them and their visions of the future. Sensitivity towards the contradictions in norms and values presented to them and towards the limits within which they have to function is acquired during socialization. Being born female is generally likely to have negative characteristics attributed.

The PC-PNDT Act In A Nutshell

The PC-PNDT Act[2] was enacted on 20 September 1994 with the intent to prohibit prenatal diagnostic techniques for determination of the sex of the foetus leading to female feticide. That is to say the preliminary object was to put a check on female feticide. No doubt the bare perusal of the Act indicates that it is a draconic act from the point of its effect on radiologists/sonologists. The Act does not offer any escape to the erring radiologist/sonologist.

But at the same time it is very simple to fulfil and abide by the requisitions of the Act. The few basic requirements of the Act are:

Registration under Section (18) of the PC-PNDT Act.
Written consent of the pregnant woman and prohibition of communicating the sex of foetus under Section 5 of the Act.
Maintenance of records as provided under Section 29 of the Act.
Creating awareness among the public at large by placing the board of prohibition on sex determination.
A look at the basic requirement of the Act shows the simplicity of the Act, but non-compliance of the Act in any manner, be it the smallest of an error brings wrath upon the errant. The Act penalizes all the errant’s, either involved in sex determination or non-maintenance of records.

The Act is legislated in a manner that it should be a deterrent for those indulging in sex determination. The unfortunate decline in the male-female sex ratio has brought in stringent measures, there is suspension of registration, filing of criminal cases and sealing of machines. Besides, criminal prosecution will also bring in suspension and cancellation of registration granted by the State Medical Council. Remedies are also provided–like filing an appeal before the appellate authority and getting the machine released from the court of law, but all these remedial measures are time-consuming and bring the career of an individual to a standstill.

It would not be out of place to therefore state that the most effective precautionary measures are to maintain records scrupulously, fill the Form-F as provided in the Act, accurately and correctly, submit the records to the appropriate authority within the stipulated time; then there will be nothing to worry. There is no doubt that there are a few shortcomings in the Act but that does not give any reason for non-compliance of or contravention of any of the provisions of the Act. The major contribution by radiologists/ sonologists/ gynaecologists towards prevention of female feticide can be achieved by thus fulfilling the mandatory requisitions of the PC-PNDT Act.

Legal Aspects And Judgements

The Preconception and Prenatal Diagnostics Techniques (Prohibition of Sex Determination) Act 2003, with Rules made there under is an act to safeguard the girl child. The Courts have at all material times and in all possible manners delivered judgments indicating therefore that the PC-PNDT Act is actually a whip to penalize those indulging in sex determination and to serve as a deterrent to others. The recent judgments of the Courts are also supportive of the strict implementation of the PC-PNDT Act. The IRIA is fighting tooth and nail to support the cause of the radiologists all over and also to prevent the misuse or improper and erroneous application of the Act by the appropriate authority.

The appropriate authority on the other hand is itself coming up with some or the other suggestion/idea to somehow curb the menace of female feticide. But in the process the radiologists are at the receiving end and the best possible solution in today's scenario is to abide by the dictum of the PC-PNDT in its true letter and spirit. The Maharashtra State Branch of IRIA challenged the ban being imposed by the Municipal Corporation of Mumbai on the use of portable machines before the Hon’ble High Court Mumbai, which petition came to be dismissed and the judgment in the petition means that the portable machine can now be used only in the institute or hospital where it is registered thereby restricting the portability of the portable USG.

The Voluntary Health Association of Punjab [VHAP], an NGO filed a writ petition in the Hon’ble Supreme Court of India in 2006 against Union of India and Others, for effective implementation of Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. This was because, for one reason or the other, the practice of female infanticide still prevails, thus affecting overall sex ratio in various States where female infanticide is prevailing without any hindrance. The Parliament enacted the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. This Act was however not completely implemented. In particular, thousands of clinics were operating without registration. There was virtually no case of prosecution. On 31st March 2003 the Act was  amended and titled as Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act. This Act came into proper implementation in some of the states as well as no prosecution has taken place against the violators of the act.

Conclusion

Female foeticide is a growing problem in the Indian context, and this article harps on the legal interventions to curb this social evil which has taken a detrimental turn in out socio-political milieu of the country. Procedures such as amniocentesis, CVS and all other tests for detection of genetic abnormalities can be banned. This is based on the principle that there should be no discrimination against a child (before or after it is born) on account of any disability, or on the basis of narrow and traditional patriarchal values and norms. Under article 2 of the Convention on the Rights of the Child, a disabled child has as much of a right to be born as a normal child does. This policy will take care of the problem of female foeticide as well. If no detection of genetic abnormalities is allowed, the government will easily be in a position to control sex determination tests.