Legal Provision
of The Pre-Natal Diagnostic Techniques
(Regulation and
Prevention of Misuse) Act, 1994
The 2001
Census has focused on certain interesting and worrying features with regard to
sex ratios, which call for explanation. But a matter of deep concern is the
decline in the sex ratio of population in 0-6 age group, this may be the result
of non-implementation and ignorance about " The Pre-Natal Diagnostic
Techniques (Regulation and Prevention of Misuse) Act, 1994" . Thus, this is an
attempt to explain the said act in simple language without tempering the spirit
of the act.
Though according to the 2001 Census, the number of women in the National all
age sex ratio has increased, but so for the State of Punjab is
concerned this ratio has further declined.
According to the 1991 Census the
National all ages ratio of female population was 927 per thousand male,
whereas according to the Census of 2001 it is slightly increased and is 933.
But in Punjab according to the 1991
Census the female population was 882 per thousand male, whereas
according to the 2001 Census there is a decline and the female population per
thousand is 874.
So for the female child population
i.e.0-6 years is concerned, it has declined on the National
as well as on the State Level and is an alarming sign. In 1991 on the
National Level 0-6 population was 945 and according to the 2001 Census
it has declined and has reduced to 927.
In Punjab in 1991, 0-6 female population
was 875 and in 2001 it is 793 means decline of 82 girls per thousand.
It can be attributed to the prevailing
socio-cultural values, where female infanticide in the past and now
female foeticide is well-accepted fact.
This gender-bias cannot be blamed on the
economic status of the region. For intense in State like Kerala, the
sex ratio is favorable to women while in Punjab, one of Indian’s most
affluent state, it is even below the national average.
It can be further attributed to
the patriarchal society where “ son preference” is very deep rooted due
to various reasons.
But previously the family or society
exploited the women but know the market forces have also joined
against her.
In mid seventies advent of
different scientific techniques e.g. amniocentesis and Sonography to
detect genetic disorders in the foetus was a big achievement.
But these techniques which were supposed
to be used mainly to detect the genetic deformities at the
pre-natal stage, has become very popular for detection of the sex of a foetus
and there after extermination of female foetus through abortions.
Alarmed by this situation a central act
“The Pre-Natal Diagnostic Techniques (Regulation and prevention of
Misuse) Act” was got enacted in 1994 after a long struggle by socially
aware people in general and various women groups in particulars.
This act is permissive or regulatory and
not prohibitory in nature. It does not prohibit the tests rather it
permits the same in certain situations with certain conditions for detecting
the genetic disorders of the foetus with a condition not to disclose
the sex of the foetus to the women or her relatives in any form or way.
Prenatal diagnostic techniques act 1994,
came into force from January 1, 1996. The main provisions of the PNDT
Act are as follows.
Prohibition of the misuse of prenatal
diagnostic techniques for determining the sex of the foetus leading to
female foeticide.
Prohibition of advertisement of prenatal
diagnostic techniques for detection or determination of sex.
Permission and regulation of the use of
prenatal diagnostic techniques for the purpose specific genetic
abnormalities or disorders.
Permitting the use of such techniques
only under certain conditions by registered institutions.
Under no circumstances are these
techniques to be used to determine the sex of the foetus.
(This includes ultrasonography)
No person conducting prenatal diagnostic
procedure shall communicate to the pregnant women concerned or her
relatives the sex of the foetus thorough words, signs or in any other manner.
Punishment for violation of the provisions of the Act :
An appropriate authority (AAA) shall
take not of violations. Violations may also be brought to be attention of the
appropriate authority by a private company / Person. Within 30 days of
receiving the complaint, the appropriate authority may cancel registration or
search the premises or seize the record etc.
Violations are punishable with 3 years
improsonment and or Rs.10,000 fine for the first time conviction, increasing
to Rs.50,000 fine and 5 years imprisonment for the second conviction. Despite
of PNDT Act-1994 which banned amniocentesis and chorionvillous biopsy
and declared ultrasound for sex selection a non-bailable offense, there has
not been a single conviction for female foeticide countrywide.
In fact for the strict implementation of
the ACT we have to read and understand it with the Medical Termination
of Pregnancy Act of 1971.
Since the provision under Indian Penal
Code of 1860 were very stringent, so far the abortion was
concerned. Abortion with or without consent of the women was punished in law
under various sections of the Code except done in good faith to save the life
of the women.
This strict law under the IPC led to a
number of underground abortions and consequently caused unnecessary
health complications to the women.
In these circumstances the necessity
arose to enact the law and the MTP Act was passed in 1971 for the
purpose of safeguarding the rights of a pregnant women.
This Act gives a Pregnant women the
rights to have her pregnancy terminated by a regd. medical
practitioner till 12 weeks and on the opinion of 2 RMP’s till 20 weeks on
various grounds including medical trauma and failure of contraceptive
methods.
In 1971 when the MTP Act was enacted
pre-natal diagnosis was in elementary stage and at that time it
was not medically possible to diagnose the sex of the foetus, hence no
provision to safe guard the female foetus could be thought or kept.
Here the MTP Act plays a guilty role.
According to MTP Act failure of a contraception device or method used by
any married woman or her husband which results in an unwanted
pregnancy, is a grave injury to the health of a pregnant women and is a
ground for abortions. This provision of MTP Act is widely misused. Any
pregnant women can get detected the sex of the foetus and then can get
abortion under the MTP Act.
For strict implementation of the
pre-natal diagnostic test act strict implementation of the MTP Act is
Pre-requisite which includes that a pregnancy shall not be terminated at any
place other than a hospital established or maintained by government or a
private place approved for this purpose by the government.
The preamble of the Pre-natal Diagnostic
Techniques (Regulations) clearly says that this Act is enacted 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 there with or incidental there to.
Therefore, any kind of Pre-natal
techniques which lead to selection or birth of boy comes under the
preview of the act or adversely effect the female ratio.
According
to the section 3 of the Act
a) Only regd. genetic
centres, laboratory or clinics can carry out Pre-natal diagnose
tests.
b) Only medical person who
possesses the medical qualification prescribed in the Act
can conduct the test
c) Only on the place regd. under this Act.
These provisions are mandatory and must
be carried out for the strict implementation of the Act.
Section 4 of the Act permits a women for
Pre-natal test in one or more of the following conditions
a) Age above 35 years
b) she has a history of two or more abortions (spontaneous)
c) exposed to some drugs or radiation
d) and a family history of mental retardation of physical
deformities
Here again MTP Act plays a guilty role.
Therefore, any women who have had two or more abortions under the MTP
Act to entitled for the test under section 4, sub-section b) must have
certificates showing the reasons why the abortions was carried out.
Section 5 makes mandatory for the person
carrying out Pre-natal tests to obtain the informed consent of the
women in the prescribed form and languages she understands. She must be
made aware about the possible side effects. Prior information of such
unpleasant side effect may be a crucial factor for the woman to decide
whether she wants or not participate in such tests. An
undertaking is also required from the woman to the effect that she will
not terminate the pregnancy if there is a normal child of either sex.
Section 5(2) makes it mandatory that
person who is in charge of a centre of clinic is not to disclose the
sex of the foetus to the patient or her relative in any manner. This
provision is generally violated and Appropriate Authority
must see how to check the same.
According to section 17 function of the Appropriate Authority are as follows.
a) to grant registration or cancel registration
b) to enforce standards
for genetic centres, to investigate complaints and to seek and
consider the advice
of the advisory. Board which is constituted under section 17(5)
of the Act.
For the proper implementation of the Act
this Advisory board should pay surprise visits to the clinics to check
whether the provision of the Act are carried out or not.
I) to seize incriminating evidence or records
II) to recommend to the
Appropriate authority for cancellation of registration or
prosecution of a centre.
III) to check and prevent unauthorised centres
IV) to take action as directed by the appropriate authority.
Section 23(3) of the Act talks about the
person who brings a pregnant women for Pre-natal diagnostic tests for any
purpose other than for the detection of genetic abnormalities and punishment
with imprisonment form 1 year to 3 year and fine upto Rs.10,000/- on first
offence.
These types of provisions of the Act should be made know to the general people.
There are the following recommendations for the implementation of the Act :
I) Registration of
clinics
II) Implementation of Provision of MTP Act
III) Keeping all records
pertaining to abortions conducted in the clinics when MTP
conducted
IV) Trained person in MTP centre according to the provision of
MTP Act
V) Meeting at District levels
VI) Publicity of the
provision of Act. Women and child Welfare department to furnish
