The child sex ratio had deteriorated across the country over the last decade. In the Indian context there is a strong preference for son. The girl child’s very existence is threatened. Girl children are vulnerable to foeticide and infanticide. The Indian Penal Code deals with these offences but there is hardly any prosecution or conviction under the IPC. The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT) now stands renamed as ‘The Pre-Conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2003 (PCPNDT). The PCPNDT Act provides for the prohibition of sex selection, before or after conception and regulates the use of pre natal diagnostic techniques for the purpose of detecting genetic abnormalities or other sex linked disorders in the fetus. The PCPNDT Act stipulates that no person shall conduct or cause to be conducted any pre natal diagnostic techniques including ultrasonography for the purpose of determining the sex of a foetus.
Several offences and penalties have been included in the PCPNDT Act. Every offence under this Act is cognizable, non-bailable and non-compoundable. In order to implement the provisions of the PCPNDT Act more rigorously, the Supreme Court, in a landmark judgment, has issued a number of guidelines for the Central Government, the Central Supervisory Board and the State Governments. The first conviction came in the case of the State through the District Appropriate Authoritycum- Civil Surgeon, Faridabad v. Dr. Anil Sabhani, Kartar Singh and M/s Dr. Anil Ultrasound, Faridabad. In this case, the District Appropriate Authority cum Civil Surgeon, Faridabad filed a complaint against the accused on the grounds that M/s Dr. Anil Ultrasound Centre, Faridabad, a registered genetic clinic, was engaged in illegal sex determination in violation of the Act. One doctor and a decoy patient visited the clinic with marked currency notes. The doctor accompanying the decoy patient as her attendant carried a hidden tape recorder while other members waited outside for the signal. While performing the ultrasound on the patient, the doctor also prompted that he could also disclose the sex of the foetus for an additional payment. On payment of the required amount, the doctor performed ultrasonography on the decoy patient without any written consent and orally conveyed that it was a female foetus. No receipt for payment or any written report of sex determination was issued by the accused except a routine ultrasound report. After getting the signal, the entire team entered the clinic and took into their custody all files and records. The accused admitted to disclosing the sex of the foetus, which was video recorded. On the basis of the above circumstantial and corroborative evidence, the accused were held guilty and convicted.
There have been some more convictions after this episode. Recently, an area of concern emerged relating to the Right to Life of an unborn child in the case of Nikita Mehta, who moved the Bombay High Court seeking abortion of her 25 week old foetus that was diagnosed with a congenital heart block. Mehta’s plea to carry out the medical termination of pregnancy was rejected by the court, which upheld a law that bans termination of late pregnancies. India’s MTP (Medical Termination of Pregnancy) Act is not unlike the abortion law in most European countries as it sets a gestation limit (in India’s case, 20 weeks), before which abortions may be performed without being considered criminal; and then provides for exceptions in which abortions may be performed after the limit.
In India as well as in the UK, two registered medical practitioners must certify that an abortion is called for; with the exception that one medical practitioner may unilaterally decide to perform an abortion if she decides that the termination is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.
There is no foetal impairment test that a woman or doctor must pass in any US state including those with the most restrictive abortion laws. The decision to abort even outside of state term limits rests solely on the pregnant woman’s opinion and the agreement of a physician. In the US, it is unconstitutional for state abortion laws not to include exceptions for the mental health of the woman, regardless of term length or viability.
In contrast, India’s MTP Act only provides for the mother’s life being endangered; and does not provide for the risk of serious handicaps to the child. In fact, the MTP Act was actually drafted as a population control measure in the 1970s. Today the MTP Act needs to be reviewed with a rights perspective.
Written by: Lalit kumar sarangi LL.M NALSAR University of law, Hyderabad
End-Notes
# Indian Penal Code, Sections 312-318.
# Centre for Enquiry into Health and Allied Themes (CEHAT) and Ors v. Union of India and Ors AIR 2003 SC 3309.
# Case No. RBT-298/2 of 2001 decided on 25 March 2006 in the Court of the Sub-divisional Judicial Magistrate, Paliwal.
