The Criminal Consequences of Sex-determination Tests

May 28, 2023

This article has been written by Ms. Naina Singh, a 2nd year Law Student from Amity University, Punjab.

ABSTRACT

The method by which the distinction between males and females is established in a species is ‘sex determination’. In simpler words, sex determination refers to prenatal or testing the gender of the fetus before birth. Due to archaic favor being granted to male children in the long-established patriarchal Indian society, the birth of a female child isn’t much celebrated in most regions of our country. According to the 1991 census, there were substantially fewer girls than boys. The drop in the female birthrate is alarming, as evidenced by the kid sex ratio. Data have shown that ‘female infanticide’ has been an ongoing practice in most parts of the country, particularly in the northern parts.

In this article, we will be paying attention to how our government and legislative system are working to curb this evil of sex determination by making laws and spreading awareness. Over time, the practice of establishing the sex of infants as a result of scientific advancements has forced the government to adopt legislation so that female feticide could be forbidden or regulated, and a way of achieving this has been to ban gender testing in the country.

STATUS OF SEX DETERMINATION

As we have already discussed above that what is ‘sex determination’, now the question arises whether it is legal or illegal in India.

In India as the first line of defense against female feticide, sex determination tests on pregnant women have been illegal since 1994.

In 1994, the Parliament of India enacted the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act also known as the Prohibition of Sex Selection Act. As per the Act, it is illegal to use any technique to identify the sex of a fetus after conception. This came into action to prevent the abortion of female fetuses, which is still a common practice in India.

Some of the rules of the act are as follows:

Prohibition of sex determination and selection by any techniques like ultrasound and amniocentesis
Sex of the fetus cannot be communicated in any way by any parties
Diagnostic techniques can be done only by qualified professionals
All institutions carrying out tests must be registered under the act
Institutions must display their approval certificate
Prior to any tests, relevant forms must be filled and documented
The patient and doctor must sign a declaration
All institutions must display a notice indicating that sex determination or selection is prohibited under the law
Violation of the act by any party is punishable by imprisonment for a term and a fine

The government banned the determination of a fetus under the Pre-natal Diagnostic Techniques Regulation and Prevention of Misuse Act of 1994 which was amended in 2002. This was done to check an alarming decline in the number of girls born for every 1000 boys born in the country.

Maneka Gandhi, Minister of Women and Child Development suggested lately that the law should be changed. She said:

“The woman should be compulsorily told whether it is a boy or girl child whom she is going to give birth to”

This comment of hers has brought up intense reactions. There’s no formal proposal for sex determination and the proposal is at the discussion stage, but, activists aren’t in favor of it as it would follow in the lifting of the ban on prenatal sex determination under the PCPNDT Act.

CONSEQUENCES OF SEX DETERMINATION TEST IN INDIA

The offenses covered by this law and the potential punishments are outlined in Sections 22 to 26 of the Preconception and Prenatal Diagnostic Techniques Act (PCPNDT).

Section 22– Under Section 22, it is against the law to advertise any clinic, laboratory, or other establishments that make use of radiography, imaging techniques, etc. in connection with a facility for determining the sex of unborn children. A fine of up to ten thousand rupees and a prison sentence of up to three years may be imposed for any breach of the rules in this section.

Section 23 -addresses that it is also illegal for a gynecologist, other healthcare professionals, the owner of a genetic laboratory, counseling center, or clinic, or an employee of one of these establishments to provide professional or technical services while violating any of this Act’s rules.

Under Section 22 of the Act, the offender faces a fine of up to 10,000 rupees and a sentence of up to three years in jail. Additionally, under Section 23 of the Act, the punishment might be raised to five years in prison and a fine of up to 50,000 rupees in the event of a subsequent conviction. In accordance with paragraph (2) of this Section, the pertinent authority may inform the State Medical Council of the name of the concerned medical petitioner. Penalties are intended to be used to take the necessary actions, suspend the defendant’s registration in the event that charges are filed, and have his name entirely or for five years removed from the council’s register in the event that he is found guilty.

A person may be sentenced to up to five years in prison and a fine of 50,000 rupees if they visit a genetic counseling center, clinic, or laboratory for any reason other than those mentioned in Section 4’s subsection (2). A second conviction also comes with a fine of one lakh rupees and a sentence of up to five years in prison.

Any woman who is obliged to undergo a diagnostic technique for sex selection is excluded from the application of Section 23 subsection, according to the provision in this Section (3).

Section 24- of the Act assumes that the woman’s spouse and her family are to blame for forcing a woman to receive a diagnosis other than those mentioned in Section 4 of the Act’s diagnostic guidelines (2). Such a person is also accountable for facilitating an offense under Section 23 sub-clause (3) and is punished for that offense.

The punishment for breaking the PCPNDT Act’s rules is laid forth in Section 25. If such a violation is not punishable in another place in this Act. A three-month prison sentence, a fine of up to Rs. 1,000, or both may be imposed as a punishment. In the event of a subsequent conviction, the fine can rise. For as long as there are convictions after the initial one, the price is raised to 500 rupees every day.

Businesses may be prosecuted under Section 26 for offenses they commit knowingly or accidentally. If such an offense is done with the permission of the person in charge of the organization’s management, that person will be held accountable and punished appropriately.

Under Section 27, which also forbids bail and compounding, every offense is cognizable.

The necessary authorities who may declare an offense to be a crime are listed in Section 28 of the Act, along with the respective courts’ areas of authority.

As demanded by the Indian Medical Association (IMA), the Union Health Ministry has proposed offense-specific punishment for those violating provisions of the Pre-conception and Pre-natal Diagnostic Techniques Act (PCPNDT) Act.

The move aims to ensure effective implementation of the PCPNDT Act to curb the unethical and criminal practice of sex selection without creating practical problems for medical doctors.

At present, the quantum of punishment for any violation under the Act (PCPNDT) is the same. But the new proposals, which are subject to the approval of the Central Supervisory Board and then Parliament, categorize offenses as major and minor besides making the law stringent for manufacturers of ultrasound machines.

The misuse of ultrasound machines for sex determination is being held responsible for the sharp increase in the adverse sex ratio in the country. The emergence and spread of sex determination clinics in the name of conducting diagnostics tests are just worsening the situation.

However, with doctors and radiologists demanding that they were being harassed even when they were not involved in the crime, an expert panel set up by the Central Supervisory Board reviewed the Act recently, said a senior health official.

For those found indulged in or assisting sex determination selection, the panel has proposed three years imprisonment and increased the fine from the current rupee ten thousand to rupee fifty thousand while in case of conviction, the imprisonment shall not be less than five years while the fine will be extended to one lakh rupees.

Those not following rules such as “wearing an apron with proper nameplate while performing the diagnostic procedure,” or “putting up a sign-board disclaiming sex selection at a prominent place in the clinic” and “copy of PNDT Act always present in the clinic,” shall be punished with a fine, not less than one thousand rupees, and Rs500 for every day if the violation continues.

The Act proposes to make the manufacturers of ultrasound machine manufacturers submit the sales report regularly. The move aimed to increase accountability on the part of manufacturers. The suggestion had come from the representatives from West Bengal. Accordingly, an additional provision of (3) B in Section 26 has been made.

Accordingly, the companies were found violating the provisions under the Act. “It should be liable to a punishment of not less than three years and a fine not less than 25 lakhs. Also, if it fails or refuses to provide sales details of the machine and other imaging types of equipment, it will be slapped with a fine of not less than Rs5 lakhs and in case it continues to do so will have to shell out Rs5,000 per day during which such contravention continues,” as per the proposed amendment.

“The panel will submit the recommendations before the CSB and if approved will be sent to Parliament for its final approval,” the official said.

CONCLUSION

Female feticide 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 our socio-political milieu of the country. Procedures such as amniocentesis, CVS, and all other tests for the 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.

“Women is the companion of a man gifted with equal mental capacities. She has the right to participate in the minutest details, in the activities of man and has an equal right of freedom and liberty with him.”- Mahatma Gandhi Ji

BIBLIOGRAPHY

May 28, 2023