LAW ON SEX DETERMINATION: AMENDMENTS & DEVELOPMENTS

LAW ON SEX DETERMINATION: AMENDMENTS & DEVELOPMENTS

MORE TEETH TO THE PNDT ACT: FAVOURABLE CHANGES ON THE ANVIL

Newsletter May – Aug 2002

It has been a long time since we discussed the prevention of sex-selective abortion as a part of our ongoing activities. However, some of the recent developments have brought the issue in focus once again.

BACKGROUND

From the mid 80's to the early 90's we were a part of a major campaign against sex determination and sex pre-selection, initiated in Mumbai by the Forum Against Sex Determination and Sex

Pre-selection (FASDSP). With the easy availability of ultrasound machines, it was becoming increasingly common in states like Maharashtra to get to know the sex of the developing foetus and use the information for conducting an abortion if the foetus happened to be female.

While social awareness was seen as crucial, the role of a law in preventing the practice of sex determination was also seen to be important. The legal route was perceived to be a significant way to define the practice as a crime/unethical. Pressure from women's groups and FASDSP resulted in legislation in Maharashtra State in I986 to prevent sex determination. However, this Act was found lacking in many aspects and the campaign gained momentum for a demand for central legislation. Saheli played a significant role in the campaign and also deposed in front of the joint Parliamentary Committee set up in I992 regarding provisions in the legislation as there was a serious need felt to plug the lacunae in the Maharashtra State Act. Finally, the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) (PNDT) Act was passed by the Centre in I994. All the States were expected to notify it subsequently and implement it. It finally got notified as late as January I997.

PROBLEMS WITH THE PNDT ACT I994

Despite efforts to make the Act effective, women's groups were left extremely dissatisfied by the contents of the notified Act. Following were the major limitations in the implementation of the Act:

1. The Act mentioned amniocentesis [a test done on the fluid taken out from pregnant mother's womb for testing the sex of the growing baby] and ultrasonography as the tests which should not be used for sex determination but it did not leave scope for banning automatically the use of newer techniques which would develop over the years.

2. The Act recommends punishment not only to the husband and other members of the family but it also considers the pregnant woman guilty, which was not acceptable to us. Women's groups have held the view that in a patriarchal society, women are themselves victims of the social preference for a son, and are pressurised to undergo these tests. Even in cases where the woman seemingly makes a ‘free’ choice, one wonders how ‘free’ the choice is when the options are to undergo severe beatings, abandonment, neglect in the family or constant threats, nagging and cribbing for not producing a son.

3. The provisions for the implementation of the Act were very poor with no power accorded to the implementing agencies, etc.

4. Most importantly, the Act did not cover the use of techniques for sex pre-selection, which are gaining ground today with the increasing popularity of techniques of assisted reproduction.

We had voiced our serious reservations about the efficacy and utility of the Act in such a situation.

DEVELOPMENTS IN THE TECHNIQUES OVER THE PAST DECADE

The sex-determination methods which were mentioned in the Act have improved substantially over the past decade. For example, new generation ultrasonography machines offer the facility of sex-determination at a time earlier [12-14 weeks] than 18-20 weeks which was the case when the campaign began. The prices of the machines have come down and such screening procedure to ensure the ‘health’ of the child is recommended routinely by many gynaecologists. Even in smaller places such machines are available. As a result, the ease with which the sex of the foetus can be known increased tremendously over the past decade.

With the advent in technology, more invasive techniques such as amniocentesis and chorion villus biopsy have taken a back seat as they are associated with higher chances of injury to the developing foetus. More sophisticated techniques for sex determination using modern technology of DNA-based diagnosis are developed which use pregnant mother's blood, or placental cells collected via cervix to detect the presence of Y chromosome in the foetal cells.

TECHNIQUES OF SEX PRE-SELECTION: ANOTHER DIMENSION IN THE DEBATE

However, some of the procedures which can select the sex even before fertilisation takes place or before the embryo is implanted in the uterus have been refined over the years. These can be broadly classified as sex pre-selection techniques operative at pre-conception and pre-implantation levels:

• Sperm bearing Y chromosomes can be separated and only those used for fertilisation of an egg to give rise to the male foetus.

• The embryo developed by bringing the egg and sperm together in a test tube can be sexed before it is deposited in the uterus for further development in a full grown foetus. This is referred to as pre-implantation genetic diagnosis (PGD) though in this case the technique is used for non-medical and ethically unacceptable reasons.

Unfortunately, well-known doctors from a Mumbai-based IVF [in vitro fertilisation] clinic have reported use of sexing of embryos before implantation by the so-called PGD method for what is euphemistically called ‘family balancing’.

In addition to scientifically tested techniques, certain fraudulent methods also get advertised taking into account the preference for sons in the society and complete laxity of the implementing agencies in banning the facilities advertising for sex determination. For example, a kit called ‘Gen-Select’ was advertised for an integrated approach by which couples could use ‘naturally occurring gender selection factors to select the sex of their child with ‘up to 96 per cent’ effectiveness. All the claims made in this kit are to date completely unsubstantiated, and the advertising by itself is illegal even according to the existing PNDT Act. However, the reader of this advertisement can be easily cheated by it.

It is likely that as the days go by either these newer techniques which are available only to the chosen few today because of their being expensive will become more commonly available and/or yet undeveloped techniques will become available. Thus, our apprehensions in excluding the term sex pre- selection from the PNDT Act I994 have come true and we feel it is necessary that any legislation like this Act should have a potential for its full implementation in the years to come.

The ethical dilemmas in sex pre-selection are as complicated, if not more complex than sex-determination followed by abortion of the female foetus. The moral dilemma of whether or not abortion implies ‘taking life’ is replaced by the moral dilemma of choosing to have a child of a particular sex i.e. male.

IMPETUS FOR A CHANGE IN PNDT ACT

After having had the legislation in place for 5+ years it is useful to know why there is interest in this subject again. As mentioned earlier, feminist activists and health activists have felt the frustration for getting an Act passed, the final text of which we were very unhappy about. However, the major boost to the issue was provided by the data from the 2001 census. For the first time in the history of Indian census, a special age-category was introduced and primary data on the sex-ratio in the 0-6 year age group became available. While many demographers, health activists, feminists had gone hoarse trying to emphasise declining sex-ratios year after year and that too not restricted to the relatively underdeveloped BIMARU states in the country, it was not considered serious enough by the government to take active steps to address the causes. However, 2001 census showed that though there was a marginal increase in the F: M sex ratio from 1991, the disparity between the two sexes in 0-6 age group was too stark to ignore. Further analysis shows that even the rich states such as Punjab, Haryana, Gujarat, Himachal Pradesh, [see table] have a worse ratio than some other states such as Chhattisgarh and West Bengal, indicating that poverty alone is not the reason for the disappearance of the girl child from the face of the earth.

There was a lot of hue and cry over the declining sex-ratios within and outside the country giving a jolt to the people in power. Obviously, in addition to the social conditioning demanding a male heir and blaming the woman for not producing one, apathy of the powers that be also contributes to the social injustice and gender inequality. The figures clearly show that many girls are not getting born, and some are wilfully killed at birth. Those which survive don't get enough care and possibly die early due to malnutrition, infection, and lack of health care. As a result very few girls make it to the age of 6 as compared to the boys. Thus, there was an external push to do something about the declining sex-ratio which is partly contributed by the rampant practice of sex-selective abortions.

Strangely enough, even the religious leaders thought it necessary to condemn sex- selective abortion and preach about the worth of the woman. They talked about woman as a goddess, as a nurturer, as someone who will hold the family together and so on. None of them thought of talking about a woman as an independent human being with as much right to live as any other human or living being. Some of the meetings held in Delhi and Punjab were attended by many religious leaders representing at least Hindu, Sikh, Muslim and Christian religions and there was a call given to the stoppage of abortion of the girl child. It is not apparent yet how much impact these appeals would have on the religious minded people in the society. It is a known fact that religious leaders have their own agenda to push, even when they take up seemingly progressive causes. It is feared that while endorsing the most conservative stand vis-a-vis women’s rights, the push is towards reinforcing a more traditional role of women, which would reduce rather than enhance reproductive and other rights.

Another major trigger for the serious re-thinking on the issue of sex-selective abortion by the government — specifically by the Department of Family Welfare, was a Supreme Court directive issued on 4th May, 2001 in response to a Public Interest Litigation (PIL) filed by Sabu George, CEHAT (Centre for Enquiry into Health and Allied Themes) from Mumbai and Pune and MASUM (Mahila Sarvangeen Utkarsh Mandal) from Pune in February 2000 with two goals. One, to activate the Central and State governments for rigorous implementation of the central legislation. Second, to interpret the legislation and/or to demand amendment to ensure that the techniques which use pre-conception or during-conception sex selection like, for instance, the Ericsson method (X and Y chromosome separation) and Pre-implantational Genetic Diagnosis (PGD) are also brought under the purview of the Act. l

CURRENT STATUS OF THE ACT

The Supreme Court order passed in response to the PIL largely concerns the implementation of the Act and putting the required infrastructure in place. In addition, the order entrusts the responsibility to the Central Supervisory Board of examining the necessity to amend the Act keeping in mind the emerging technologies and difficulties encountered in implementation of the Act and to make recommendations to the Central Government.

The Supreme Court directive has resulted in the Department of Family Welfare re-activating the Central Advisory Board, constituting a technical subcommittee to look into the existing provisions in the I994 Act and suggest amendments. Although Saheli is not formally a part of this committee, in March 2002, we have sent in our suggestions about the potential improvements in the existing Act. A gist of these suggestions is as follows:

• A woman who undergoes tests to determine the sex of the foetus should not be punished.

• The scope of the present Act should be widened to include new techniques and techniques that may get developed in the future which can be used for sex determination and which are not included in the current Act.

• The sex pre-selection methods are not included in the current Act either. All present and future methods for sex pre-selection should be banned by this Act.

• The advertisement and sale of methods such as Gen-Select should be banned and the company selling the material as well as chemists/shopkeepers selling it over the counter should be liable to punishment.

The current Act uses the term ‘female foeticide' and we strongly feel that the term be replaced with ‘sex-selective abortion of female foetus’ wherever it appears in the Act. Women's groups have always been strongly against sex determination and sex pre-selection, yet we unequivocally uphold women's unconditional right to abortion. But the term “foeticide” has some inherent anti-abortion connotations, imbuing the foetus with a “right to life". Hence we believe that the use of such terminology is better kept outside the purview of law.

The amendments were passed by the Cabinet Committee on 3 1st May and are now pending approval in the Parliament.

PNDT AND THE DOCTOR'S COMMUNITY

While the Federation of Obstetricians & Gynaecologists in Delhi took a public oath to abstain from conducting, participating or recommending sex-determination tests, in reality doctors’ opinions and conduct are sharply divided on the matter.

Many doctors we have spoken to are certainly deterred from having anything to do with sex-determination once it has been declared illegal; yet a powerful doctors’ lobby is doing everything it can to prevent the passing of the Amendments to the Bill which could make it more effective.

Hence, we suspect that the battle against pre-natal diagnostics and sex-determination is still going to be long and drawn out.