MORE TEETH TO THE PNDT ACT

MORE TEETH TO THE PNDT ACT :

Favourable Changes on the Anvil

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 a legislation in Maharashtra State in 1986 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 1992 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 1994. All the States were expected to notify it subsequently and implement it. It finally got notified as late as January 1997.

Problems with the PNDT Act 1994

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. In fact, the non-implementability of the Act has become obvious over the years because not a single case has been filed so far in the last 5 years under this Act.

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 [ mention how much] 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 they are 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’ 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 1994 have come true and we feel it is necessary that any legislature 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 they 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 Chattisgarh and West Bengal, indicating that poverty alone is not the reason for the disappearance of the girl child from the face of the earth.