Female Foeticide

Female Foeticide A statutory Analysis In 1988 in that location was an advertisement in the Diwali special progeny of a renowned Marathi cartridge holder1 Amniocentesis is a create perception To mis exp bar it for abortion is a great sin. Better go in for conjure- natural selection Read this book. chew the fat your family doctor for a sure way of begetting sons. Female foeticide is perhaps mavin of the worst forms of violence against women where a charr is denied her most basic and perfect right- the right to life enshrined in Article 21 of Indian Constitution. Elimination of the girl chela by way of selectively eliminating the womanish embryos or fetuses is an age-old phenomenon. It negates the fundamental right to equality guaranteed infra Articles 14 and 15 of our Constitution.The traditional humor of the Indian culture of preferring the boy baby e very send off the girl child combined mastermindh the ultra new-fanglede engineering has further succeeded in boos ting the status conscious Indian families to perpetuate their choice making edge of the girl child ejection in the most sophisticated and easiest way. To top it all, the ethically conscious checkup craft has been able to leave conquer the already imbalanced agitate ratio on to 927 women per g-force men. 2It raises all top dog(prenominal)(predicate) rewards on the interfacing of technology, health and society, of profane of medical technology, of using techno-centric solutions for genial problems, of violation of the principles of medical ethics, of social and demographic implications of more(prenominal) technologies, of the conclusion making processes involving technology, which can pitch far-reaching social marrows, of regulating the medical profession (specially reproductive technology) both internally and externally, of limits to re count and the techno-docs power to play God, of the role and limits of social legislation in tackling social problems of inform ed consent, and patients rights and doctors accountability, of the manageable fall- pop out of the advent of current Reproductive Technologies (NRTs) from Sex Pre-Selection Techniques (SPSTs) to non-coital reproduction through IVF- ET or GIFF, surrogate m former(a)hood to ancestral engineering of decision-making process in family and society and womens role (or lack of it) in them. All these interrelated issues entail something to all our lives as it de charmings the way we see our past, present and future.Traditionally the patricentric families got rid of the unwished-for child either by way of poisoning the pertly-born baby or let her coke on vanquish or simply by crushing her skull at a lower place a charpoy. Since modern medical psychometric tests have rag it easier to determine the bring up of the child hitherto earlier the birth of the unwanted child, the number has wholly shot instead of decreasing. In nonpareil hospital, a excogitate showed that out of 8,000 abortions performed, 7,999 were effeminate foetuses. 3 Hence, the governance was strained to pass the Pre Natal Diagnostic ( prevention) bet, 1994 in response to the increasing number of abortions performed on women training female foetuses. 4 Thus, Indias officials taboo couples from using technical means to determine the brace of a foetus. 5 Although Indias parliament passed the legislation in 1994, it could non become police until all state legislatures ap read it. 6 The law in the end took effect on January 1, 1996. The 1994 bend is both prohibitive and regulatory. Prohibitive According to the exemplify the use of pre-natal proficiencys for the purposes of grammatical gender determination ar prohibited. 7 The work out prohibits every somebody brooking prenatal symptomatic procedure from communicating to the significant women concerned or her relatives the excite of the foetus by words, signs or in every other manner. 8 The doing prohibits both Genetic a dvocate centre, Genetic Laboratory and Genetic Clinic to conduct activities relating to pre-natal diagnostic technique unless it is registered at a lower place the comprise or to engagement allone who does not possess the prescribed qualifications. The medical practitioners ar prohibited to conduct such techniques at all place, which is not registered under the coiffe. Regulatory The deport provides for the order of pre-natal diagnostic techniques. antenatal diagnostic techniques whitethorn be used to detect genetic or metabolic disorders or chromosomal abnormalities or original connatural malformations or arouse-linked disorders. Prenatal Diagnostic Techniques may be employed only under stipulate corresponds by registered institutions9O The tests can only be carried out on women who be either over the age of thirty-tail fin or O Have had ii or more miscarriages or O Who have been exposed to radiation, infection, chemicals or drugs which be harmful to the foetu s or O The gravid woman has a family history of mental retardation or physical deformities such as spasticity or either other genetic disease or O each other condition as may be specified by the telephone exchange supervisory senesce. It is very important to note that the portrayal permits use of such techniques provided the medical practitioner has explained all the cognise side and later on(prenominal)(prenominal)ward effects of such techniques to the heavy(predicate) woman and more importantly, has obtained her written consent in the language she understands. 10 Persons operative in the clinics, as hale as women and their families who use the clinics or are liable for fines and durance for violating the Act. 11 The Act provides for the construction of a Central supervisory Board herein after CSB, which shall be established to advise the governing body on policy egresss relating to pre-natal diagnostic techniques to review the implementation of the Act and its ru les and to recommend changes in the Act and its rules. 12 The CSB has been assign a very important function of spreading mankind awareness against the practice of pre-natal determination of shake and foeticide. The CSB shall meet at least(prenominal) twice a year to review the functioning of the Act and make recommendations for its better implementation. 13An Appropriate permit shall be appointed in takes and total Territories and regions wherein the fountainities are sceptred14 O To grant, suspend or cancel the registration of genetic counselling centres, laboratories and clinics and O Also to examine complaints regarding breach of the cookings of the Act or the rules. The Act lays exhausthearted forbiddance on the issuance of advertisements15 relating to pre-natal sex determination by any psyche, organisation or institutional and provides that any contravention/Violations of the self equal(prenominal) impart entitle the offender a punishment of 3 years imprisonmen t and/ or Rs. 10,000/- fine for the stolon charge, this increasing to Rs. 50,000/- fine and 5 years imprisonment for a second charge. 16 But in that location are various loopholes in the Act, which has do it a failure to a great extent thus allow the demons of female foeticide/infanticide survive and tucketHence, the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 was passed to plug the loopholes. THE PRE-NATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) AMENDMENT ACT, 2002 Objectives of the New Act The practices relating to female foeticide and techniques connected with the same are considered discriminatory to the female sex and not conducive to the high-handedness of the women. The proliferation of the technologies mentioned above may, in future, precipitant a catastrophe, in the form of severe imbalance in male-female ratio. The State is also duty forswear to intervene in such matters to pertain the welfare of the society, especially of the women and children.Therefore, the government felt the necessary to consecrate and implement in letter and spirit a legislation to censor the pre-conception sex selection techniques and the maltreatment of pre-natal diagnostic techniques for sex-selective abortions and to provide for the regulation of such abortions. Such a law is also needed to uphold medical ethics and initiate the process of regulation of medical technology in the larger interests of the society. Accordingly, it is proposed by the government to amend the aforesaid Act with a view to forbiddance the use of both sex selection techniques prior to conception as well as the misuse of pre-natal diagnostic techniques for sex selective abortions and to regulate such techniques with a view to ensuring their scientific use for which they are intended.The Amendment Act, 2002 seeks to achieve the aforesaid objects. Highlights of the New Act 1. The Act provides for the prohibition and regulation of SD techniques originally or after conception. 17 2. For the words and brackets the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse), the words and brackets the Pre-conception and Pre-natal Diagnostic Techniques ( bulwark of Sex Selection) shall be substituted. 18 This lays a lot of dialect on the issue of female foeticide in particular. 3. Definitions of conceptus, embryo and foetus have been laid down specifically, which helps in determining the stick and stage of use of PNDT. 19 4. The Explanations added to Sec. (ii) in clause (d), (e) and (g) have enlarged the area of the Act to include even the portable PNDT equipment/ instrumentry. 20 5. Qualifications of a genetic has been upgraded. 21 6. Amendment of element 17 of the principal Act reads as follows (e) to catch take into account legal action against the use of any sex selection technique by any individual at any place, suo motu or brought to its notice and also to initiate self-sustaining inv estigations in such matter This provision has given extra scope to the governing for the utilisation of the powers to gratify their duties. 7. Insertion of new fraction 17A. -After piece 17 of the principal Act, the pursuit division is proposed to be inserted, that is to say 17A. Powers of Appropriate Authorities. The Appropriate representation shall have the powers in respect of the interest matters, viz. (a) summoning of any person who is in willpower of any information relating to violation of the eatable of this Act or the rules do at that placeunder (b) production of any document or material object relating to clause (a) (c) issuing search warrant for any place suspected to be indulging in sex selection techniques or pre-natal sex determination and (d) any other matter which may be prescribed. . This provision is very much in tune with the target of contribution 17 (e). 8. Provision with regard to the advertisements has been made more stringent. 22 9. Definitely , the strongest provision of the Bill is the new air division 24, which if brought to effect shall wipe all doubts with regard to the application of penal nutrition to women undergoing the PNDT tests. The rovisions has rightly identified the problems of women in the efforts of PNDT as in most cases, women are forced to go for these test or to forgo their marital lives their homes, even their lives. 23 Drawbacks of the new Act I. Amendment of parting 3. -In subdivision 3 of the principal Act, for clause (2), the pas m clause shall be substituted, videlicet (2) No Genetic commission Centre or Genetic Laboratory or Genetic Clinic shall employ or cause to be employed or take services of any person, whether on honorary basis or on payment who does not possess the qualifications as may be prescribed. The region is negatively worded which gives a scope for the people specifically excluded in the provisions to take advantage of the loophole.Instead, if the provision was positivel y worded in the sense that it lad down as to who is eligible to carry the PNDT under the circumstances specified under the Act, it would have restrained anyone who is other not specifically empower to conduct such tests. II. incision 3B Prohibition on sales agreement of sonography railcar, etc. , to persons, laboratories, clinics, etc. , not registered under the Act. No person shall sell any ultrasound shape or imaging machine or scanner or any other equipment capable of espial sex of foetus to any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other person not registered under the Act. Though this is a strongly worded Section, which aims at curbing the clandestine sale of the PNDT equipments, it suffers from a major drawback. The Act or he Section does to talk about the manu accompanimenturing of these equipments because since manufacturing is the first graduation towards the inkiness-marketing and other misuses. As such, there have to be specific guidelines as to the manufacturing. The manufacturing license should be issued only to the Governmental Institutions so that the observe becomes so much easier because of the control that he Government can physical exercise over these institutions. Also very closely linked to above point is the licensing function. If licenses for prenatal diagnosis were allow only to government institutions, the line of work of vigilance would be further simplified.The ban on misuse of techniques for SD compel upon government institutions has not been violated for the past 15 years. Also there is no provision to the effect that the registration of the portable PNDT machinery/equipments are also registered. III. Amendment of ingredient 4. -In section 4 of the principal Act, for clauses (3) and (4), the following clauses shall be substituted, namely (3) 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 w riting that any of the following conditions are fulfilled, namely The provisions of this section major facie seem like a sizeable provision but are a toothless one.The issue is that though citing a reason which satisfies the condition precedent laid down in the Act before the PNDT tests are conducted, the provisions misses out a crucial point. It does not designate for the production of the documents to prove that the condition in fact, is satisfied and is very much in spirit wit the object of the Act. Also should be included in this provision the requirement t record al these documentary proof which shall be made getable for verification by the CSB/SSB, etc. IV. Section 13 sub clause (vi) Any other condition as may be specified by the Board This provision gives a lot of discretionary powers to the Boards, which have to be curtailed in the form of the guidelines. V. Amendment of section 5. In section 5 of the principal Act, for sub-section (2), the following sub-section shall b e substituted, namely (2) No person including the person conducting pre-natal diagnostic procedures shall 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. This provision has practical difficulties in scathe of implementation. It is suggested by the author that a kind of code system be adopted whereby the tests which have satisfied the conditions of the Act be given a code number and sent for testing in a place which is empower to conduct he tests for a particular area or region.This is to watch that there exists no immediately links between the family concerned and the medical practitioner who can pass on the sex of the foetus, which might forego to the death of the foetus in case it turns out to be a female. This is because though the provisions exclude the practitioner from conveying in any manner whatsoever, the proof that the same has not been conveyed cannot be assured. VI. s elf-loading suspension/cancellation from the Registry of medical examination Practitioners of the name of doctors found guilty by the court without referring the matter to the Medical Council. VII. Insertion of new section 16A. -After section 16 of the principal Act, the following section shall be inserted, namely 16A. Constitution of State Supervisory Board and Union territory Supervisory Board. (1) Each State and Union territory having Legislature shall constitute a Board to be known as the State Supervisory Board or the Union territory Supervisory Board, as the case may be, which shall have the following functions (10) In respect of matters not specified in this section, the State Board shall follow procedures and conditions as are applicable to the Board. There are no rules and regulations with regard to the powers of the Boards as to in what way the powers have to be synchronised to fulfil their duties and function as specified in the Act. Also, this Section suffers from a se rious defect. That is the Section has adopted a very top-down advent, which has been time and again proved to be ineffective and fruitless. Therefore, the approach should have bee a grass-root eve approach. This is even more applicable n the cases of PNDT because of the Act that a good chunk of cases are from cracker-barrel areas which are very difficult to monitor and control.A Panchayat level machinery working hand in hand with local rural institutions like the Anganwadis and the school would be an musical theme way to tackle and combat the problem of PNDT. VIII. Also the Act has certain vague and ambiguous terms and expressions like eminent which are very problematic as to how they should be interpreted and put to use. IX. penal with imprisonment for a term, which may extend to three years and with fine which may extend to fifty dollar bill thousand rupees for the first offence and for any subsequent offence with imprisonment which may extend to five years and with fine whic h may extend to one lakh rupees. The acclivity in the fines though would be applicable to the urban areas, its a absolute letter of black and white on the melodic theme when it comes to the rural areas.The rural people who, more often than not are extremely poor, are in no position to pay those high fines, which makes the provisions a supernumerary provisions. Instead, thee ha to be a mechanism whereby these people can be sensitized to the problems associated with the girl child. It is the faithful belief of the author that public awareness is a much better and powerful tool than mere fines, especially with regard to the rural poor. X. A major hurdle in the endeavor to prohibit sex determination and regulation of PNDT techniques is that there is no proper duty laid upon any of he authorities in the Act. There is no penalty attached for non performance of the duties- commission or omission- cast upon the authorities. specially in the light of the fact that so far the CSB have n ever met regularly as per the provisions of the Act. XI. The Financial Memorandum stick on to the Bill with regard to the expenses falling under Section 16 A of the Act has no regulation with regard to transparency, accountability, and regulatory body. This is very problematic and might just prove to be plunders paradise. 2 . 1 See, http//www. evesindia. com/health/features/reprod_health. html, visited on 10/10/02. 3 . 2 Id.. 4 . 3In one hospital, a study showed that out of 8,000 abortions performed, 7,999 were female foetuses.See Shailaja Bajpai, Indias Lost Women, World Press Rev. , Apr. 1991, at 49. Also see, Vidya Deshpande, Where have all the girls gone? , http//www. indianexpress. com/fe/daily/19991202/faf28033. html, visited 24/12/02. 5 . 4John F. Burns, India Fights abortion of Female Foetuses, N. Y. Times, Aug. 27, 1994, at 5, available in LEXIS, News Library, Curnws File. 6 . 5Demographers pointing to such numbers have at last forced governments to take no tice. Thus, Indias officials verboten couples from using technical means to determine the sex of a foetus. The Sexes disappear Girls In China, India and South Korea, A Gender Gap Causes Worries, Asiaweek, Mar. 3, 1995, at 32 7 . 6See India Bans Abortions of Female Fetuses another(prenominal) Move to Help protect Baby Girls, Chi. Trib. , Jan. 10, 1996, at 13, available in LEXIS, World Library, Allwld File. 8 . 7 Section 3. 9 . 8 Section 4(4) 10 . 9 Section 4 11 . 10 Section 5(1)(c) 12 . 11 See section 24. Common response to the Act has been If I do get arrested, Ill spend a couple of months in prison, but whats that compared to a liveliness of misery trying to bring up a girl? 13 . 12 Section 17 14 . 13 Section 18 15 . 14 Sections 20-21 16 . 15 Section 22 17 . 16 Section 23 18 . 17 The long title of the Bill that is proposed to substituted the present long title reads as follows An Act to provide for the prohibition of sex selection, before or after con ception, and for regulation of pre-natal diagnostic techniques for the purposes of catching 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. 19 . 18 Amendment of section 1 of the Act. 20 . 19 4. Amendment of section 2. In section 2 of the principal Act, (i) after clause (b), the following clauses shall be inserted, namely (ba) conceptus means any product of conception at any stage of organic evolution from fertilisation until birth including extra embryonic membranes as well as the embryo or foetus (bb) embryo means a developing human organism after fertilisation till the end of eight weeks (fifty-six days) (bc) foetus means a human organism during the design of its development beginning on the fifty-seventh day following fertilisation or crea tion (excluding any time in which its development has been suspended) and windup at the birth 21 . 20 Explanation. For the purposes of this clause, Genetic Clinic includes a vehicle, where ultrasound machine or imaging machine or scanner or other equipment capable of determining sex of the foetus or a portable equipment which has the potential for detection of sex during pregnancy or selection of sex before conception, is used. 22 . 21 (g) medical geneticist includes a person who possesses a degree or parchment in genetic science in the fields of sex selection and pre-natal diagnostic techniques or has vex of not less than two years in any of these fields after obtaining (i) any one of the medical qualifications recognised under the Indian Medical Council Act, 1956 (102 of 1956) or (ii) a post-graduate degree in biologic sciences. 23 . 22 re-sentencing of new section for section 22. -For section 22 of the principal Act, the following section shall be substituted, na mely 22. Prohibition of advertisement relating to pre-conception and pre-natal determination of sex and punishment for contravention. (1) No person, organisation, Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, including clinic, laboratory or centre having ultrasound machine or imaging machine or scanner or any other technology capable of projection determination of sex of foetus or sex selection shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any form, including internet, regarding facilities of pre-natal determination of sex or sex selection before conception available at such centre, laboratory, clinic or at any other place. See also, Substitution of new section for section 16. 24 . 23 Substitution of new section for section 24. For section 24 of the principal Act, the following section shall be substituted, namely 24. Presumption in the case of conduct of pre-natal diagnosti c techniques. -Notwithstanding anything contained in the Indian present Act, 1872, the court shall presume unless the contrary is proved that the pregnant woman was compelled by her husband or any other relative, as the case may be, to undergo pre-natal diagnostic technique for the purposes other than those specified in sub-section (2) of section 4 and such person shall be liable for temporary removal of offence under sub-section (3) of section 23 and shall be punishable for the offence specified under that section. Female FoeticideFemale Foeticide A legal Analysis In 1988 there was an advertisement in the Diwali special number of a renowned Marathi magazine1 Amniocentesis is a developed science To misuse it for abortion is a great sin. Better go in for sex-selection Read this book. Consult your family doctor for a sure way of begetting sons. Female foeticide is perhaps one of the worst forms of violence against women where a woman is denied her most basic and fundamental right- the right to life enshrined in Article 21 of Indian Constitution. Elimination of the girl child by way of selectively eliminating the female embryos or foetuses is an age-old phenomenon. It negates the fundamental right to equality guaranteed under Articles 14 and 15 of our Constitution.The traditional mentality of the Indian culture of preferring the boy baby over the girl child combined with the ultra modern technology has only succeeded in boosting the status conscious Indian families to perpetuate their choice making process of the girl child elimination in the most sophisticated and easiest way. To top it all, the ethically conscious medical profession has been able to bring down the already imbalanced sex ratio on to 927 women per 1000 men. 2It raises important issues on the interfacing of technology, health and society, of misuse of medical technology, of using techno-centric solutions for social problems, of violation of the principles of medical ethics, of social and demogr aphic implications of such technologies, of the decision making processes involving technology, which can have far-reaching social effects, of regulating the medical profession (specially reproductive technology) both internally and externally, of limits to research and the techno-docs power to play God, of the role and limits of social legislation in tackling social problems of informed consent, and patients rights and doctors accountability, of the possible fall-out of the advent of New Reproductive Technologies (NRTs) from Sex Pre-Selection Techniques (SPSTs) to non-coital reproduction through IVF- ET or GIFF, surrogate motherhood to genetic engineering of decision-making process in family and society and womens role (or lack of it) in them. All these interrelated issues mean something to all our lives as it defines the way we see our past, present and future.Traditionally the patriarchal families got rid of the unwanted child either by way of poisoning the new-born baby or letti ng her coke on husk or simply by crushing her skull under a charpoy. Since modern medical tests have made it easier to determine the sex of the child even before the birth of the unwanted child, the number has only shot instead of decreasing. In one hospital, a study showed that out of 8,000 abortions performed, 7,999 were female foetuses. 3 Hence, the government was forced to pass the Pre Natal Diagnostic (Prevention) Act, 1994 in response to the increasing number of abortions performed on women carrying female foetuses. 4 Thus, Indias officials banned couples from using technical means to determine the sex of a foetus. 5 Although Indias Parliament passed the legislation in 1994, it could not become law until all state legislatures approved it. 6 The law finally took effect on January 1, 1996. The 1994 Act is both prohibitive and regulatory. Prohibitive According to the Act the use of pre-natal techniques for the purposes of sex determination are prohibited. 7 The Act prohibits any person conducting prenatal diagnostic procedure from communicating to the pregnant women concerned or her relatives the sex of the foetus by words, signs or in any other manner. 8 The Act prohibits any Genetic Counselling centre, Genetic Laboratory and Genetic Clinic to conduct activities relating to pre-natal diagnostic technique unless it is registered under the Act or to employ anyone who does not possess the prescribed qualifications. The medical practitioners are prohibited to conduct such techniques at any place, which is not registered under the Act. Regulatory The Act provides for the regulation of pre-natal diagnostic techniques. Prenatal diagnostic techniques may be used to detect genetic or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders. Prenatal Diagnostic Techniques may be employed only under specified conditions by registered institutions9O The tests can only be carried out on women who are either over the age of thirty-five or O Have had two or more miscarriages or O Who have been exposed to radiation, infection, chemicals or drugs which are harmful to the foetus or O The pregnant woman has a family history of mental retardation or physical deformities such as spasticity or any other genetic disease or O Any other condition as may be specified by the Central Supervisory Board. It is very important to note that the Act permits use of such techniques provided the medical practitioner has explained all the known side and after effects of such techniques to the pregnant woman and more importantly, has obtained her written consent in the language she understands. 10 Persons working in the clinics, as well as women and their families who use the clinics or are liable for fines and imprisonment for violating the Act. 11 The Act provides for the construction of a Central Supervisory Board herein after CSB, which shall be established to advise the government on policy matters relating to pre- natal diagnostic techniques to review the implementation of the Act and its rules and to recommend changes in the Act and its rules. 12 The CSB has been assigned a very important function of spreading public awareness against the practice of pre-natal determination of sex and foeticide. The CSB shall meet at least twice a year to review the functioning of the Act and make recommendations for its better implementation. 13An Appropriate Authority shall be appointed in States and Union Territories and regions wherein the authorities are empowered14 O To grant, suspend or cancel the registration of genetic counselling centres, laboratories and clinics and O Also to investigate complaints regarding breach of the provisions of the Act or the rules. The Act lays down prohibition on the issuance of advertisements15 relating to pre-natal sex determination by any person, organisation or institutional and provides that any contravention/Violations of the same will entitle the offender a punish ment of 3 years imprisonment and/ or Rs. 10,000/- fine for the first charge, this increasing to Rs. 50,000/- fine and 5 years imprisonment for a second charge. 16 But there are various loopholes in the Act, which has made it a failure to a great extent thus letting the demons of female foeticide/infanticide survive and flourishHence, the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 was passed to plug the loopholes. THE PRE-NATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) AMENDMENT ACT, 2002 Objectives of the New Act The practices relating to female foeticide and techniques connected with the same are considered discriminatory to the female sex and not conducive to the dignity of the women. The proliferation of the technologies mentioned above may, in future, precipitate a catastrophe, in the form of severe imbalance in male-female ratio. The State is also duty bound to intervene in such matters to uphold the welfare of th e society, especially of the women and children.Therefore, the government felt the necessary to enact and implement in letter and spirit a legislation to ban the pre-conception sex selection techniques and the misuse of pre-natal diagnostic techniques for sex-selective abortions and to provide for the regulation of such abortions. Such a law is also needed to uphold medical ethics and initiate the process of regulation of medical technology in the larger interests of the society. Accordingly, it is proposed by the government to amend the aforesaid Act with a view to banning the use of both sex selection techniques prior to conception as well as the misuse of pre-natal diagnostic techniques for sex selective abortions and to regulate such techniques with a view to ensuring their scientific use for which they are intended.The Amendment Act, 2002 seeks to achieve the aforesaid objects. Highlights of the New Act 1. The Act provides for the prohibition and regulation of SD techniques bef ore or after conception. 17 2. For the words and brackets the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse), the words and brackets the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) shall be substituted. 18 This lays a lot of emphasis on the issue of female foeticide in particular. 3. Definitions of conceptus, embryo and foetus have been laid down specifically, which helps in determining the cause and stage of use of PNDT. 19 4. The Explanations added to Sec. (ii) in clause (d), (e) and (g) have enlarged the scope of the Act to include even the portable PNDT equipment/machinery. 20 5. Qualifications of a genetic has been upgraded. 21 6. Amendment of section 17 of the principal Act reads as follows (e) to take appropriate legal action against the use of any sex selection technique by any person at any place, suo motu or brought to its notice and also to initiate independent investigations in such matter This provision has gi ven extra scope to the authorities for the utilisation of the powers to fulfil their duties. 7. Insertion of new section 17A. -After section 17 of the principal Act, the following section is proposed to be inserted, namely 17A. Powers of Appropriate Authorities. The Appropriate Authority shall have the powers in respect of the following matters, namely (a) summoning of any person who is in possession of any information relating to violation of the provisions of this Act or the rules made thereunder (b) production of any document or material object relating to clause (a) (c) issuing search warrant for any place suspected to be indulging in sex selection techniques or pre-natal sex determination and (d) any other matter which may be prescribed. . This provision is very much in tune with the objective of Section 17 (e). 8. Provision with regard to the advertisements has been made more stringent. 22 9. Definitely, the strongest provision of the Bill is the new section 24, which if broug ht to effect shall wipe all doubts with regard to the application of penal provisions to women undergoing the PNDT tests. The rovisions has rightly identified the problems of women in the cases of PNDT as in most cases, women are forced to go for these test or to forgo their marital lives their homes, even their lives. 23 Drawbacks of the new Act I. Amendment of section 3. -In section 3 of the principal Act, for clause (2), the following clause shall be substituted, namely (2) No Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall employ or cause to be employed or take services of any person, whether on honorary basis or on payment who does not possess the qualifications as may be prescribed. The Section is negatively worded which gives a scope for the people specifically excluded in the provisions to take advantage of the loophole.Instead, if the provision was positively worded in the sense that it lad down as to who is eligible to carry the PNDT under the cir cumstances specified under the Act, it would have restrained anyone who is otherwise not specifically authorised to conduct such tests. II. Section 3B Prohibition on sale of ultrasound machine, etc. , to persons, laboratories, clinics, etc. , not registered under the Act. No person shall sell any ultrasound machine or imaging machine or scanner or any other equipment capable of detecting sex of foetus to any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other person not registered under the Act. Though this is a strongly worded Section, which aims at curbing the clandestine sale of the PNDT equipments, it suffers from a major drawback. The Act or he Section does to talk about the manufacturing of these equipments because since manufacturing is the first step towards the black-marketing and other misuses. As such, there have to be specific guidelines as to the manufacturing. The manufacturing license should be issued only to the Governmental Institutions so t hat the monitoring becomes so much easier because of the control that he Government can exercise over these institutions. Also very closely linked to above point is the licensing function. If licenses for prenatal diagnosis were granted only to government institutions, the task of vigilance would be further simplified.The ban on misuse of techniques for SD imposed upon government institutions has not been violated for the past 15 years. Also there is no provision to the effect that the registration of the portable PNDT machinery/equipments are also registered. III. Amendment of section 4. -In section 4 of the principal Act, for clauses (3) and (4), the following clauses shall be substituted, namely (3) 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 The provisions of this section prima facie seem like a good provision but ar e a toothless one.The issue is that though citing a reason which satisfies the condition precedent laid down in the Act before the PNDT tests are conducted, the provisions misses out a crucial point. It does not mandate for the production of the documents to prove that the condition in fact, is satisfied and is very much in spirit wit the object of the Act. Also should be included in this provision the requirement t record al these documentary proof which shall be made available for verification by the CSB/SSB, etc. IV. Section 13 sub clause (vi) Any other condition as may be specified by the Board This provision gives a lot of discretionary powers to the Boards, which have to be curtailed in the form of the guidelines. V. Amendment of section 5. In section 5 of the principal Act, for sub-section (2), the following sub-section shall be substituted, namely (2) No person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned o r her relatives or any other person the sex of the foetus by words, signs, or in any other manner. This provision has practical difficulties in terms of implementation. It is suggested by the author that a kind of code system be adopted whereby the tests which have satisfied the conditions of the Act be given a code number and sent for testing in a place which is authorised to conduct he tests for a particular area or region.This is to ensure that there exists no direct links between the family concerned and the medical practitioner who can convey the sex of the foetus, which might lead to the death of the foetus in case it turns out to be a female. This is because though the provisions bar the practitioner from conveying in any manner whatsoever, the proof that the same has not been conveyed cannot be assured. VI. Automatic suspension/cancellation from the Registry of Medical Practitioners of the name of doctors found guilty by the court without referring the matter to the Medical Council. VII. Insertion of new section 16A. -After section 16 of the principal Act, the following section shall be inserted, namely 16A. Constitution of State Supervisory Board and Union territory Supervisory Board. (1) Each State and Union territory having Legislature shall constitute a Board to be known as the State Supervisory Board or the Union territory Supervisory Board, as the case may be, which shall have the following functions (10) In respect of matters not specified in this section, the State Board shall follow procedures and conditions as are applicable to the Board. There are no rules and regulations with regard to the powers of the Boards as to in what way the powers have to be synchronised to fulfil their duties and function as specified in the Act. Also, this Section suffers from a serious defect. That is the Section has adopted a very top-down approach, which has been time and again proved to be ineffective and fruitless. Therefore, the approach should have bee a grass-root eve approach. This is even more applicable n the cases of PNDT because of the Act that a good chunk of cases are from rural areas which are very difficult to monitor and control.A Panchayat level machinery working hand in hand with local rural institutions like the Anganwadis and the school would be an idea way to tackle and combat the problem of PNDT. VIII. Also the Act has certain vague and ambiguous terms and expressions like eminent which are very problematic as to how they should be interpreted and put to use. IX. Punishable with imprisonment for a term, which may extend to three years and with fine which may extend to fifty thousand rupees for the first offence and for any subsequent offence with imprisonment which may extend to five years and with fine which may extend to one lakh rupees. The hike in the fines though would be applicable to the urban areas, its a mere letter of black and white on the paper when it comes to the rural areas.The rural people who, more often than not are extremely poor, are in no position to pay those high fines, which makes the provisions a redundant provisions. Instead, thee ha to be a mechanism whereby these people can be sensitized to the problems associated with the girl child. It is the firm belief of the author that public awareness is a much better and powerful tool than mere fines, especially with regard to the rural poor. X. A major hurdle in the endeavor to prohibit sex determination and regulation of PNDT techniques is that there is no proper duty laid upon any of he authorities in the Act. There is no penalty attached for non performance of the duties- commission or omission- cast upon the authorities. Especially in the light of the fact that so far the CSB have never met regularly as per the provisions of the Act. XI. The Financial Memorandum affixed to the Bill with regard to the expenses falling under Section 16 A of the Act has no regulation with regard to transparency, accountability, and regulat ory body. This is very problematic and might just prove to be plunders paradise. 2 . 1 See, http//www. evesindia. com/health/features/reprod_health. html, visited on 10/10/02. 3 . 2 Id.. 4 . 3In one hospital, a study showed that out of 8,000 abortions performed, 7,999 were female foetuses.See Shailaja Bajpai, Indias Lost Women, World Press Rev. , Apr. 1991, at 49. Also see, Vidya Deshpande, Where have all the girls gone? , http//www. indianexpress. com/fe/daily/19991202/faf28033. html, visited 24/12/02. 5 . 4John F. Burns, India Fights Abortion of Female Foetuses, N. Y. Times, Aug. 27, 1994, at 5, available in LEXIS, News Library, Curnws File. 6 . 5Demographers pointing to such numbers have finally forced governments to take notice. Thus, Indias officials banned couples from using technical means to determine the sex of a foetus. The Sexes Disappearing Girls In China, India and South Korea, A Gender Gap Causes Worries, Asiaweek, Mar. 3, 1995, at 32 7 . 6See India Ban s Abortions of Female Fetuses Another Move to Help Protect Baby Girls, Chi. Trib. , Jan. 10, 1996, at 13, available in LEXIS, World Library, Allwld File. 8 . 7 Section 3. 9 . 8 Section 4(4) 10 . 9 Section 4 11 . 10 Section 5(1)(c) 12 . 11 See section 24. Common response to the Act has been If I do get arrested, Ill spend a couple of months in prison, but whats that compared to a lifetime of misery trying to bring up a girl? 13 . 12 Section 17 14 . 13 Section 18 15 . 14 Sections 20-21 16 . 15 Section 22 17 . 16 Section 23 18 . 17 The long title of the Bill that is proposed to substituted the present long title reads as follows 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 misu se for sex determination leading to female foeticide and for matters connected therewith or incidental thereto. 19 . 18 Amendment of section 1 of the Act. 20 . 19 4. Amendment of section 2. In section 2 of the principal Act, (i) after clause (b), the following clauses shall be inserted, namely (ba) conceptus means any product of conception at any stage of development from fertilisation until birth including extra embryonic membranes as well as the embryo or foetus (bb) embryo means a developing human organism after fertilisation till the end of eight weeks (fifty-six days) (bc) foetus means a human organism during the period of its development beginning on the fifty-seventh day following fertilisation or creation (excluding any time in which its development has been suspended) and ending at the birth 21 . 20 Explanation. For the purposes of this clause, Genetic Clinic includes a vehicle, where ultrasound machine or imaging machine or scanner or other equipment capable of determining sex of the foetus or a portable equipment which has the potential for detection of sex during pregnancy or selection of sex before conception, is used. 22 . 21 (g) medical geneticist includes a person who possesses a degree or diploma in genetic science in the fields of sex selection and pre-natal diagnostic techniques or has experience of not less than two years in any of these fields after obtaining (i) any one of the medical qualifications recognised under the Indian Medical Council Act, 1956 (102 of 1956) or (ii) a post-graduate degree in biological sciences. 23 . 22 Substitution of new section for section 22. -For section 22 of the principal Act, the following section shall be substituted, namely 22. Prohibition of advertisement relating to pre-conception and pre-natal determination of sex and punishment for contravention. (1) No person, organisation, Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, including clinic, laboratory or centre hav ing ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus or sex selection shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any form, including internet, regarding facilities of pre-natal determination of sex or sex selection before conception available at such centre, laboratory, clinic or at any other place. See also, Substitution of new section for section 16. 24 . 23 Substitution of new section for section 24. For section 24 of the principal Act, the following section shall be substituted, namely 24. Presumption in the case of conduct of pre-natal diagnostic techniques. -Notwithstanding anything contained in the Indian Evidence Act, 1872, the court shall presume unless the contrary is proved that the pregnant woman was compelled by her husband or any other relative, as the case may be, to undergo pre-natal diagnostic techn ique for the purposes other than those specified in sub-section (2) of section 4 and such person shall be liable for abatement of offence under sub-section (3) of section 23 and shall be punishable for the offence specified under that section.