Call for a ban on Sex Selection



Son preference is one of the most evident manifestations of gender discrimination in our society. Sex- selection has become a rampant phenomenon and the technologies that are misused for this very purpose are becoming increasingly sophisticated. The use of advanced medical science and technology has made sexual discrimination and the elimination of female babies even before birth an invisible deed. The earlier more crude and visible forms of eliminating females such as choking infants on rice husk have given way to using technology to select sperms carrying the Y chromosome in order to be able to conceive a male child! The widespread practice of sex determination brings to fore a lot of issues linked to it. Medical science and technology are being misuse by medical practitioners who provide such options for people at large. They posses the skill and expertise to use these technologies and are also economically benefiting from them by their misuse. By indulging in such practice they not only violate the law but also the professions own code of ethics and conduct, which also puts forth sex selection as a concern of medical ethics. Most importantly, sex selection also is a breach of human rights as far as women are concerned. The selective elimination of women even before birth is a breach of their right to equality and existence.

Table 1: Indicators of Sex Preference in India

  Indicator Number/ Percentage
1. Mean ideal number of:  
  Sons 1.4
  Daughters 1.0
2. Percentage who want more sons than daughters 33.2
3. Percentage who want more daughters than sons 2.2
4. Percentage who want at least one son 85.1
5. Percentage who want at least one daughter 80.1
Source: National Family Household Survey (NFHS), 1998 - 1999.

Table 2: The Trend of Sex Ratios in the Age Group of 0-6 Years all over India

Year Sex Ratio
1961 976
1971 964
1981 962
1991 945
Source: Census, 1991


The Creation of Legislation

The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act (the PNDT Act for short) came into being since 1996. This was as a result of a campaign in 1986 that included women's groups and health activists. The campaign resulted in the Maharashtra government appointing a committee, which followed formulation of an Act at the state level in 1988. Given the concern of the then Health Secretary of Maharashtra and other organisations this issue was taken up at the Central government level resulting in the formulation of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT Act for short) which was brought into force from Jan 1 1996.
The Campaign

1976
-Government passed a partial ban on sex determination tests
1982- Private Clinics offering sex determination tests came to the limelight, groups from civil society protested against the same.
1985-Formation of the Forum Against Sex Determination and Sex Pre-selection
1988-Passing of the Maharashtra Act.
1994- Passing of the Central Act, Prenatal Diagnostic Techniques Act, (Regulation and Prevention of Misuse)

The PNDT Act at a Glance.

Intent of the Act

" An Act to provide for the regulation of the use pre-natal diagnostic techniques for the purpose of detecting genetic abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of the misuse of such techniques for the purpose of pre-natal sex-determination leading to female foeticide, and for matters connected therewith or incidental thereto"

Structure and content of the Act

It consists of six chapters which clearly defines:

  • The establishments that conduct these tests i.e. genetic counselling centres, genetic clinics, genetic laboratories.
  • The professionals who could conduct this test i.e. a gynaecologist, medical geneticist and paediatrician.
  • The conditions in which this test can be conducted
  • The prerequisites to be fulfilled before conducting these tests
  • The administrative structures that need to be set up for the effective implementation of this Act i.e. the Central Supervisory board and the State Appropriate Authority and Advisory Committee.
  • Procedure for registration of the establishments, grounds for cancellation or suspension of registration.
  • Offences and Penalties
  • Maintenance of records and power to search and seize records.

    The Public Interest Litigation

    Though the Act has been in place since the past six years the latest sex ratio figures of the 2001 Census (table 3&4) reveal alarming trends. The Census figures of the 0-6 age group show a steep decline in the number females especially in states like Haryana, Punjab, Himachal Pradesh, Maharashtra, Gujarat and Tamil Nadu. Within Maharashtra economically better off districts such as Aurangabad, Sangli and those on the 'sugar belt' show the most adverse sex ratios. In February 2000, two NGOs CEHAT, MASUM and Sabu George, an individual activist filed a public interest litigation (PIL) in the Supreme Court. The PIL seeks to accomplish the following objectives-

    ·To activate the central and state governments for rigorous implementation of the central legislation, and
    ·To interpret the legislation and/or to demand amendments to ensure that the techniques that use pre-conception or during-conception sex selection are also brought under the purview of the Act.

    Table3: Distribution of District by Ranges of Child Sex Ratio in the 0-6 Age Group

    Sex Ratio Number of Districts
    Less than 800 16
    800- 849 33
    850- 899 72
    900- 949 213
    950- 999 245
    1000- 1049 21
    Total 591
    Source: Provisional Census Tables, 2001

    Table 4:District wise sex ratio for population aged 0-6 years (no of males per thousand females), Maharashtra 1991 and 2001.


    District 2001 1991
    Ahmednagar 890 949
    Akola 936 934
    Amravati 947 950
    Aurangabad 884 933
    Bhandara 958 971
    Bid 898 939
    Buldana 915 945
    Chandarpur 944 965
    Dhule 907 960
    Gadchiroli 974 980
    Gondiya 964  
    Hingoli 935  
    Jalgoan 867 925
    Jalna 914 951
    Kolhapur 859 931
    Latur 923 947
    Mumbai 898 920*
    Mumbai (suburb) 919  
    Nagpur 949 951
    Nanded 944 960
    Nandurbar 966  
    Nashik 936 954
    Osmanabad 927 947
    Parbhani 926 955
    Pune 906 943
    Raigarh 943 961
    Ratnagiri 954 961
    Sangli 850 924
    Satara 884 941
    Sindhudurg 946 963
    Solapur 897 935
    Thane 933 952
    Wardha 934 952
    Washim 921  
    Yavatm 942 961
    Maharashtra 917 945
    *figures for greater Mumbai
    Source: Computed From Provisional Population Totals Paper – I of 2001 and RGI (1991) C series 2


    A Detailed Look at the Issues Raised in the PIL
    ·The Departmental letter dated 9
    th March, 1999 by the Government of India, Ministry of Health and Family welfare to the Director of Health services is contrary to the provisions of the PNDT Act, 1994.
    ·The Government has failed to appreciate that the procedure followed in the “Pre- Implantational Genetic Diagnosis”, constitutes violence against women and same is ultra vires the purpose and intent of the PNDT Act as well as Articles 14 and 15 of the constitution.
    ·The PGD technique is a violation of human rights and ethical medical principles. The procedure is not in consonance with the Beijing declaration of which India is a signatory.
    ·That the Government has failed to appreciate diagnostic test or procedures are allowed only for certain specific purposes.
    ·That the Government of India has to be well informed and move with the times, every day new techniques are evolved which may result in discrimination against women and the same is violative of our Constitution.
    ·The Government of India has relied on a narrow interpretation of the Law instead of a purposive interpretation of the law.
    ·The scant implementation of the PNDT Act.
    ·The Governments have failed in their duty in not monitoring the implementation of the Act.
    ·The government has failed to appreciate that more than 200 applications for registration of ultrasound clinics are waiting to be processed by the appropriate authority in the State of Tamil Nadu alone. This only means that clinics will operate without authorization.
    ·The appropriate authorities in the various states have failed to prosecute the clinics that are with impunity advertising pre-natal sex selection including PGD.

    Changes suggested

    1. Declare that the PGD technique contravenes the provisions of the PNDT Act and hence the performance of such a procedure is violative of the act.

    2. Direct the respective state governments and the central government to implement the provisions of the PNDT Act by appointing appropriate authorities (state and district level) and advisory committees.

    3. Direct the Central government to ensure that the Central Supervisory Board under the PNDT act meet every 6 months as stipulated under the Act.

    4. Quash the letter dated 9-2-99 issued by the Government of India, Ministry of Health and Family Welfare, Department of Family Welfare as ultra vires the PNDT Act;

    5. Direct banning of all advertisements of prenatal sex selection including all other sex determination techniques that can be abused to selectively produce only boys either before or during pregnancy.

    The Course of the PIL

    The first positive step forward was a favourable interim judgement by the Supreme Court of May 4, 2001. The order called for all the state governments to take necessary steps towards the implementation of the Act. The government, that is the Department of Family Welfare too got energised and they issued an advertisement in national dailies saying that it is a crime to carry out sex selection and also activated the Central Supervisory Board by calling a meeting. This was a step forward. The order also came heavily on the medical profession and their unethical practice. As a result the Indian Medical Association (IMA) at the national level made a turn around and issued a warning to its members. The Federation of Obstetrician and Gynaecologist Societies of India (FOGSI) too showed some concern through its newsletter. The governments were also asked to conduct a survey of the existing bodies conducting these tests. The hearings henceforth have been follow-ups on the May 4
    th directive. There has been very poor compliance by the State Governments including Maharashtra.

    Another major landmark in the course of the PIL was the hearing held on the 11
    th of December 2001. The Supreme Court called upon the Chief Health Secretaries of Punjab, Delhi, Bihar, Rajasthan, Gujarat, Haryana, Uttar Pradesh, Maharashtra and West-Bengal to remain present before the Court on the 29
    th of January 2002 for non- compliance of orders passed by the same. The Supreme Court also directed companies manufacturing ultrasound machines to provide information about the individuals or groups to whom Ultrasound machines have been sold during a period of last 5 years. Furthermore, the Customs & Import Department are directed to supply information on number of ultrasound machines sold to clinics or individuals as the case may be. The Centre was asked to frame rules for ensuring action. Till the time that such rules are framed some companies are directed to supply such details. These companies include Wipro GE, Philips Medical Systems, Siemens, Toshiba, Larsen & Toubro and Aloka. It also directed states to publish details of the stipulated committees within the Act.

    On the 29
    th of January 2002, just as the earlier hearings, most States admitted on paper to having complied with the directives. As far as conducting surveys of clinics having ultrasound machines and registering of ultrasound machines, it was disappointing to note that no action was taken against defaulters in almost all States. There were also lists that made a mention of activities conducted to raise awareness on the issue, the objective and impact of which need to be looked into. Maharashtra in particular submitted a very shabby affidavit, the Principal Secretary of Family Welfare present at the hearing though claimed that the State has done a lot. A breakthrough during the hearing though was an order passed which directed the FOGSI, the IMA and the Indian Radiologist Associations to submit names of their members who posses ultrasound machines and verify if they are registered, this is the first time that the medical community has been pulled up ever since the PIL was filed two years ago.  The rest of the hearings that have followed to date have been a follow-up on the above.

    The next significant hearing was on the 18th of December 2002. The petitioners submitted a document to the Supreme Court that contained the following:

  • Directions given by the SC to the central, state and UT governments through the orders passed so far,
  • Suggestions of the petitioners on awareness, functioning of the Central Supervisory Board (CSB), regulatory bodies, survey and registration, proposed amendments in the PNDT Act and
  • Information sought from other bodies.

    The central, state and UT governments were asked to file a compliance affidavit based on this document. The SC has asked the respondents to comply in the next hearing.

    For the hearing on the 6th of January 2003, though the states/ UTs were given more than a six weeks period to file their affidavits only 12 of 35 had done so till the 4th of January namely- Chandigarh, Maharashtra, Uttaranchal, Manipur, Nagaland, Pondicherry, UP, Kerala, West Bengal, Orissa, Rajasthan and Goa. Given this non-compliance by most states the Court adjourned the matter for 4 weeks. What follows is an overall analysis of the affidavits submitted.

    1. Public Awareness efforts
      Efforts by the States to create public awareness have gradually declined since the initial efforts in the year 2001 following the first interim verdict of May 2001. However, very few health education programmes have been conducted in the year 2002.

    2. Functioning of the Advisory Councils
      Though specific information was asked about the meetings taking place most states have not furnished it. The details provided by West Bengal reveal that are hardly any Districts where the meetings were held at the stipulated frequency of once in two months. In fact there were several Districts, which had just one sitting over the last 18 months. Given such indifference by the authorities it is no surprise that there have virtually been no complaints from the public in almost all states.

    3. Nature of violations reported by the Appropriate Authorities
      Though over 350 cases have been filed for violations, almost all of them are related to non-registration of bodies. And regrettably nearly 250 of the 300 machines seized are from only two states: West Bengal and Tamil Nadu. The lack of seriousness of the rest of the States is evident from this single fact (Note registrations increased with each Hearing of the Court)!

    4. Failure to regulate registered bodies
      The affidavits received from the 12 States/UTs reflect that there is very little interest in monitoring the misuse of prenatal sex determination techniques. Generally, appropriate Authorities have hardly shown any inclination to regulate the registered bodies. Districts like Faridabad and Gurgaon of Haryana were notable exceptions in the year 2001 where the Chief Medical Officers did implement the directives of the Court seriously. In this year there were actions on the part of the Authorities in the Districts of Dharwad and Belgaum in Karnataka. Note the Karnataka actions have been prompted by media investigations. Otherwise, the record of the Government officials has been bleak. Mere registration of bodies without regulation would only amount to licensing sex determination!

    5. Not seeking the cooperation of Medical Associations
      The Governments have been indifferent to get the cooperation of the medical associations to implement the PNDT Act. Note the failure of the medical profession to self-regulate was why the Parliament had to enact a special law. It is imperative that State Governments take efforts to ensure that Medical associations do get their members respect the law of the land.

    By the time of the hearing on 3
    rd of February 2003, another 16 states filed their affidavits by February 1
    st 2003. The following seven states did not file till the February 3
    rdhearing: Tripura, Arunachal Pradesh, Jammu & Kashmir, Meghalaya, Jharkhand, Chattisgarh and Himachal Pradesh.

    Punjab, Tamil Nadu and Andaman & Nicobar Islands apparently had filed their affidavits but the petitioners were served their affidavits only by 5thFebruary evening.

    On February 3rd, the State/ UT counsels asked for more time to look into the shortcomings in their affidavits based on the analysis of the petitioners. The SC gave them time till the 6th of February.

    On the hearing on the 6th of February, most of the State counsels complained of not getting a copy of the analysis submitted for the judges' convenience by the petitioners and their lawyer. The states of Tripura, Arunachal Pradesh, Jammu & Kashmir, Meghalaya, Jharkhand and Himachal Pradesh did not submit their affidavits. The SC then gave all respondents 3 weeks time to return with their comprehensive compliance affidavits.

    The case has been continuing since the past three and a half years and the course of the PIL as brought the issue of sex selection back into debate. The laxity of the law implementing machinery has been brought to notice. As a result each state has had to take stalk of what they have done so far towards the effective implementation of the Act. At this point in time we feel that we have achieved the best that we could through the Courts. Also the amendments in the Act itself have come through the monsoon session of the parliament. Therefore we feel this is the right time to ask for a closure of the case. There is a need for a greater to revive the campaign again to look at issues at a local level by collaborating with the state machinery at various platforms and externally act as pressure groups to ensure proper implementation of the Act. An area that needs focus is the medical profession. The increasing malpractice and poor concern for ethics within the profession should be brought to focus. An emphasis must be made on the profession and its associations to take responsibility to regulate the unethical practice of sex determination/ selection.

    A core group of individuals and NGOs in Maharashtra, for instance, has been formed to provide direction and address various issues that would arise in the course of future advocacy. Sensitising on gender issues (through collaboration with schools, colleges, youth festivals etc.), dissemination of information available on the issue and coordination between various NGOs were identified as certain key areas of work.

    Sex selection in the present context is a complex issue with several stakeholders - doctors, the government machinery looking after the implementation of the Act, health and women's groups and civil society at large. Each has to play their part to deal with it at various levels. Implementation is what the Act lacks like most laws concerning women's rights do.


    Closure of the Case
    We would like to consolidate the outcomes of the PIL through a final order of the Supreme Court as suggested below:

    Outcomes of the PIL:

    At the national and state levels the media disseminated the various directives issued by the court. The states and the union took some steps to raise public awareness. In a few instances individuals and state agencies took some proactive actions (e.g. against the episode of TV serial “Kyo ki saas bhi kabhi bahu thi” and “Kudarat” on Doordarshan promoting sex-determination, booking of errant diagnostic centres in Faridabad, etc.). The medical community all over the country for the first time took notice of the Act and discussed the implications.

    Implementation of the Act has been initiated at various levels. The registration of clinics under the Act went up from 600 to 19000 over the period May 2001 to September 2002. The violations filed before 2001 amounted to about two or three cases which increased to about three hundred.

    States went about putting machinery such as the advisory committees and the Appropriate Authority into order.

    Implementation of the act has created a national level discourse and several doctors have approached the high courts and the Supreme Court to clarify the interpretation of the Act (including its very constitutionality!).

    Amendments were introduced in the parliament in the monsoon session.

    Expectations at Closure:
    The reports on the functioning of the district, State and National level should be printed every 6 months (31
    st December and 30thJune). These reports should include:

  • Membership and minutes (including attendance) of the District, State and Central Supervisory bodies. Action plans and follow up undertaken by these bodies be stated.
  • List the names of non-official members of the Advisory Councils at all levels.
  • Detailed report on the status and fate of the various violations reported. Number of convictions for each year and by the nature of offence and action taken.

    These reports should be made available to all concerned with the well being of the girl child.

    Medical professionals, the medical associations and state and national medical councils follow the code of conduct strictly.

    With an emphasis on assuming responsibility to self-regulate so as to ensure that sex determination / sex selection is not practiced. Unethical practitioners should be identified and blacklisted.

    The regulatory authorities should formulate standardized and transparent protocols for monitoring so that there is no unnecessary harassment of providers. The media (print, TV, electronic etc.) should not communicate any message, which is contrary to intent and spirit of the Act (messages which legitimise the practice of sex selection/sex determination). The Information and Broadcasting Ministry should take the necessary action to enforce this directive. The awareness/ advertising of safe legal abortion services should not get affected in the monitoring of media.

    At the Centre:

    1. CSB commissions studies of sex ratios at birth every 3 years at State level. This information should be collected independent of the routine Health Department sources and birth registration data. The analysis of sex ratios at birth is an unbiased indicator of the effectiveness of the implementation of the PNDT Law and related efforts. CSB place a detailed report to the Supreme Court once every three years beginning from 1
    st October 2004 (Thus we will have 3 time series data before the Census 2011 surviving child sex ratios are available). State and National Consultations should be held to plan appropriate follow up actions.

    2. At least one women's rights organisation with relevant experience on the issue should be represented in the CSB

    3. All equipment having the potential of sex-determination and facilitating sex-selection identified by appropriate authority must be registered at point of sale and information pertaining to buyer and user, their qualifications etc.. district-wise must be reported annually to the appropriate authority and the latter should make this information public.

    At the State/UT:

    1. Lists of Appropriate Authorities at district and sub district level with their responsibilities should be published and widely circulated in newspapers reaching both the urban and rural communities.
    2. These lists should also be disseminated through the electronic media such as TV, radio and should be flashed every fortnight so that the public have information about the authorities
    3. These lists should be sent to both public and private hospitals and clinics. Care should be taken that these lists are displayed in prominent locations easily accessible to the public.
    4. Awareness building material developed by the state should be locally relevant and should be developed in co-ordination with women's groups and local NGOs.
    5. The IEC programme should create public awareness against the practice of prenatal sex determination and sex selective abortion. Care should be taken to emphasize that abortion is the reproductive right of a woman but sex selective abortion of the female fetus selectively discriminates the rights of the girl child.
    6. Awareness programmes taken up by the state should also cover high schools, colleges, public and social institutions among others. The state should collaborate with local NGOs and women's groups and conduct awareness programmes in the region. All material developed by the state should be widely disseminated to both public & private health and educational institutions and NGOs
    7. Quarterly reports furnished by the states/UT to the CSB should include:

  • Survey of bodies in the Section 3 of the Act. The states should specify the number of bodies surveyed in the quarter.
  • Number of bodies registered specified in the section of the act. The location of these bodies and date of registration should be specified
  • Action against non-registered bodies operating in violation of Section 3 of the act inclusive of search and seizure records. Furnish list of complaints received date of complaint action taken pending cases follow up of old cases and provide reasons for no action taken in case of failure of action
  • Steps taken to ensure that the list of appropriate authorities receiving complaints are easily accessible to the public in both urban and rural areas
  • Steps taken to ensure that the role and responsibilities of the appropriate authorities is widely publicized and method of grievance redressal should be disseminated to the public using both print and electronic media.
  • Number of awareness programmes conducted, List of awareness building material, location of display of awareness building material should be specified. Nature and content of awareness programme conducted, target group, outreach and follow up of awareness programme should be specified

    For a period of three years the Supreme Court should appoint a national core of organisations and likewise also state level groups to monitor the implementation of the above mentioned directives and submit a yearly status report to the SC.

    Notes:

    1Articles 1,2,3 and 5(a) of the Convention on Elimination of Discrimination Against Women (CEDAW) to which India is a signatory are as follows:

    Article 1. For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

    Article 2. States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:

    (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;

    (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;

    (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

    (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;

    (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

    (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

    (g) To repeal all national penal provisions which constitute discrimination against women.

    Article 3. States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.

    Article 5. States Parties shall take all appropriate measures:

    (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

    2Articles 14, 15(1) and (3) of the Indian Constitution are as follows:

    14. Equality before law: -

    The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

    15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-
    (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
    (3) Nothing in this article shall prevent the State from making any special provision for women and children.

    Statistics

    The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002

    The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Rules, 2003

    Complaints against PNDT 2003