The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. Salient Features-Law Notes
Introduction
In India, the killing of a female child has been going on since centuries. Previously, due to lack of scientific techniques, it was impossible to determine the sex of the child, so the killing of female child took place in many ways. Now due to development of new scientific technologies, the sex of the foetus in the womb of mother is possible and misused rampantly. The blind killing of female foetus affected the male-female ratio of the population. Hence due to great pressure of women-activists, Parliament led to enact a law to stop this menace. In 1994, Parliament passed “Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994”. which came into force since 01/01/1996. This Act is now re-named as, “The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection)] Act, 1994”.
The long title of the Act states as “An Act to provide for the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto
Statement of Objects and Reasons of the Bill
It is proposed to prohibit pre-natal diagnostic techniques for determination of sex of the foetus leading to female foeticide. Such abuse of techniques is discriminatory against the female sex and affects the dignity and status of women. A legislation is required to regulate the use of such techniques and to provide deterrent punishment to stop such inhuman act.
The legislation seeks to achieve the following objectives :-
(i) prohibition of the misuse of pre-natal diagnostic techniques for determination of sex of foetus, leading to female foeticide; (ii) prohibition of advertisement of pre-natal diagnostic techniques for detection or determination of sex; (iii) permission and regulation of the use of pre-natal diagnostic techniques for the purpose of detection of specific genetic abnormalities or disorders; (iv) permitting the use of such techniques only under certain conditions by the registered institutions; and (v) punishment for violation of the provisions of the proposed legislation.
Sadanand M. Ingle (Dr.) v. State ofMaharashtra states, This Act has been enacted with some definite objectives, they being prohibition of sex selection, regulation of modem diagnostic techniques involved in the detection of genetic or metabolic disorders and to prevent the incidence of female foeticide triggered by misuse ofsex determination test. This Act also provides for appointing various supervisory and competent authorities and creates certain offences by prohibiting certain acts and lays down penal consequences for the acts prohibited. The objects and scheme of the Act, 1994 being as they are, it would be necessary for the various authorities thereunder to strictly follow the procedural requirements of the Act.
Important Definitions
Some importatnt definitions in PCPNDT Act are :
Section 2(bb) “embryo” means a developing human organism after fertilization till the end of eight weeks (fifty-six days);
Section 2(bc) “foetus” means a human organism during the period of its development beginning on the fiftyseventh day following fertilization or creation (excluding any time in which its development has been suspended) and ending at the birth;
Section 2(c) “Genetic Counseling Centre” means an institute, hospital, nursing home or any place, by whatever name called, which provides for genetic counseling to patients;
Section 2(d) “Genetic Clinic” means a clinic, institute, hospital, nursing home or any place, by whatever name called, which is used for conducting pre-natal diagnostic procedures;
Section 2(e) “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 test;
Section 2(f) “gynecologist” means a person who possesses a post-graduate qualification in gynecology and obstetrics;
(Medical Geneticist : A Medical Geneticist diagnoses and manages genetic disorders (eg down syndrom, Type-2 diabetes) in individuals and families. They interpret genetic test results, provide counseling about inherited conditions)
Section 2(g) “medical geneticist” means a person who possesses a degree or diploma or certificate in medical genetics in the field of pre-natal diagnostic techniques or has experience of not less than two years in such field after obtaining-
(i) any one of the medical qualifications recognized under the Indian Medical Council Act, 1956; or
(ii) a post-graduate degree in biological sciences;
Section 2(h) “pediatrician” means a person who possesses a post-graduate qualification in pediatrics;
Section 2(i) “pre-natal diagnostic procedures” means all gynecological or obstetrical or medical procedures such as ultrasonography foetoscopy, taking or removing samples of amniotic fluid, chorionic villi, blood or any tissue of a pregnant woman for being sent to a Genetic Laboratory or Genetic Clinic for conducting pre-natal diagnostic test;
Section 2(j) “pre-natal diagnostic techniques” includes all pre-natal diagnostic procedures and pre-natal diagnostic tests;
Section 2(k) “pre-natal diagnostic test” means ultrasonography or any test or analysis of amniotic fluid, chorionic villi, blood or any tissue of a pregnant woman conducted to detect genetic or metabolic disorders or chromosomal abnormalities or congenital anomalies or haemoglobinopathies or sex-linked diseases;
Section 2(m) “registered medical practitioner” means a medical practitioner who possesses any recognized medical qualification as defined in clause (h) of
section 2 of the Indian Medical Council Act, 1956, and whose name has been
entered in a State Medical Register;
Regulation of Genetic Counseling Centers, Genetic Laboratories and Genetic Clinics
Section 3 of the PCPNDT Act states that, On and from the commencement of this Act,no Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic unless registered under this Act, shall conduct or associate with, or help in, conducting activities relating to prenatal diagnostic techniques; Also,they shall not employ or cause to be employed or take services of any person, whether on honorary basis or on payment who does not possess qualifications as may be prescribed; Further section 3 also states that, no medical geneticist, gynaecologist, paediatrician, registered medical practitioner or any other person shall conduct or cause to be conducted or aid in conducting by himself or through any other person, any pre-natal diagnostic techniques at a place other than a place registered under this Act. Section 3A prohibits sex-selection it states as No person, including a specialist or a team of specialists in the field of infertility, shall conduct or cause to be conducted or aid in conducting by himself or by any other person, sex selection on a woman or a man or on both.Further Section 3B Prohibits on sale of ultrasound machines, etc., to persons, laboratories, clinics, etc. not registered under the Act.
Regulation of Pre-natal Diagnostic Techniques
Section 4 prescribes that, no place including a registered Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall be used or caused to be used by any person for conducting pre-natal diagnostic techniques except for detection of the abnormalities like
Chromosomal abnormalities which involve changes in chromosome number or structure for example the sex chromosomes ‘X’ & ‘Y’ that determine biological sex in humans
Genetic metabolic diseases which are caused by the lack of enzymes or their co-factors that cause errors in metabolic processes. A metabolic process is the sum of all chemical reactions in an organism’s cells that convert food into energy for life-sustaining functions like growth, repair, and movement
Haemoglobinopathies, they are inherited blood disorders caused by genetic mutations affecting hemoglobin.A genetic mutation is a change in a sequence of your DNA. DNA, or deoxyribonucleic acid, is the hereditary material in humans.
Sex-linked genetic diseases like hemophilia(it’s a rare, inherited bleeding disorder), red-green color blindness, congenital(birth defect) night blindness
Congenital anomalies which are birth defects, they are structural or functional problems present at birth eg heart defects, down syndrom.
Also ,any other abnormalities or diseases as may be specified by the Central Supervisory Board.
Section 4 further provides that, no pre-natal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied for reasons to be recorded in writing that any of the following conditions are fulfilled, namely:—
- age of the pregnant woman is above thirty-five years;
- the pregnant woman has undergone of two or more spontaneous abortions or foetal loss;
- the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals;
- the pregnant woman or her spouse has a family history of mental retardation or physical deformities such as, spasticity(muscles become stiff and tight) or any other genetic disease;
- any other condition as may be specified by the Central Supervisory Board; Provided that the person conducting ultrasonography on a pregnant woman shall keep complete record thereof in the clinic in such manner, as may be prescribed, and any deficiency or inaccuracy found therein shall amount to contravention of provisions of section 5 or section 6 unless contrary is proved by the person conducting such ultrasonography;
Further, section 4 prohibits any person including a relative or husband of the pregnant woman to seek or encourage the conduct of any pre-natal diagnostic techniques on her except for the purposes specified in exceptions.Sectionv4 also prohibits person including a relative or husband of a woman to seek or encourage the conduct of any sex-selection technique on her or him or both.
Written consent of pregnant woman and prohibition of communicating the sex of foetus.
Section 5 states that No person referred to in exceptions mentioned in section 3 shall conduct the pre-natal diagnostic procedures unless, (a) he has explained all known side and after effects of such procedures to the pregnant woman concerned;(b) he has obtained in the prescribed form her written consent to undergo such procedures in the language which she understands; and (c) a copy of her written consent obtained under clause (b) is given to the pregnant woman.
Further the section also restricts to person including the person conducting pre-natal diagnostic procedures to communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs or in any other manner.
Determination of sex prohibited
Section 6 of the PCPNDT Act prohibits the determination of sex. Section 6 restricts Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic or any person to conduct or cause to be conducted in its Centre, Laboratory or Clinic, pre-natal diagnostic techniques including ultrasonography, for the purpose of determining the sex of a foetus
Constitution of Central Supervisory Board
The Central Government is empowered to constitute a Board to be known as the Central Supervisory Board to exercise the powers and perform the functions conferred on the Board under this Act.The Board shall consist of the members as specified in section 7 of the Act.
Appointment of officers and other employees of the Board
For the purpose of enabling the board to discharge its functions efficiently, under this Act, the Board may,appoint officers and other employees as it may consider necessary.
Functions of the Board
Section 16 prescribes the functions of the board namely,
- to advise the Central Government on policy matters relating to use of pre-natal diagnostic techniques, sex selection techniques and against their misuse;
- to review and monitor implementation of the Act and rules made thereunder and recommend to the Central Government changes in the said Act and rules;
- to create public awareness against the practice of pre-conception sex selection and prenatal determination of sex of foetus leading to female foeticide;
- to lay down code of conduct to be observed by persons working at Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics;
- to oversee the performance of various bodies constituted under the Act and take appropriate steps to ensure its proper and effective implementation;
- any other functions as may be prescribed under the Act.
Constitution of State Supervisory Board and Union territory Supervisory Board & appointment of Appropriate Authority and Advisory Committee
The PCPNDT Act empowers Each State and Union territory having Legislature to constitute a Board to be known as the State Supervisory Board or the Union territory Supervisory Board, as the case may be,and prescribes their functions as specified in section 16A. And also empowers the Central Government to appoint Appropriate Authority and Advisory Committee as prescribed in section 17 with their powers and function.
Registration of Genetic Counselling Centres, Genetic Laboratories or Genetic Clinics.
Section 18 puts restriction on opening of Genetic Counselling Centres, Genetic Laboratories or Genetic Clinics. It states that,any person shall not open any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, including clinic, laboratory or centre having ultrasound or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus and sex selection, or render services to any of them, after the commencement of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 unless such centre, laboratory or clinic is duly registered under the Act.
Certificate of registration.
Section 19 states that, The Appropriate Authority shall, after holding an inquiry and after satisfying itself that the applicant has complied with all the requirements of this Act and the rules made thereunder and having regard to the advice of the Advisory Committee in this behalf, grant a certificate of registration in the prescribed form jointly or separately to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, as the case may be.
Prohibition of advertisement relating to pre-natal determination of sex and punishment for contravention.
Section 22 prohibits advertisement of the clinic or centre having ultrasound machines or any other technology capable of undertaking determination of sex of foetus or sex selection. On contravention of section 22,the concern shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees.
Offences and penalties
Section 23 states that, anyone who contravenes any of the provisions of this Act or rules made thereunder shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees.
Every offence under this Act shall be cognizable, non-bailable and non-compoundable.