Introduction
The practice of sex selection is an old practice in India. The patriarchal customs that have existed in India for hundreds of years have an impact on all regions and walks of life. According to the 1991 census, there were substantially fewer girls than boys. The drop in the female birthrate is alarming, as evidenced by the kid sex ratio. Results of studies have shown that boys are still favoured over girls, even in the twenty-first century. Over time, the practice of establishing the sex of infants as a result of scientific advancements has forced the government to adopt legislation so that female foeticide could be forbidden or regulated, and a way of achieving this has been to ban gender testing in the country. This article seeks to understand the legality of gender testing in the country through an in-depth analysis of existing legal provisions.
Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act
The Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, often known as the Prohibition of Sex Selection Act, was passed by the Indian Parliament in 1994. According to the Act, it is forbidden to employ any method to determine a foetus's gender after conception. This was put into effect to stop the widespread practice of abortion of female foetuses in India.
The following are a few of the Act's regulations:
- Prohibition of sex selection and determination by any methods, including amniocentesis and ultrasound
- The foetus's sexual orientation cannot be disclosed to anyone in any way.
- Only trained specialists are capable of performing diagnostic procedures.
- According to the statute, every institution that administers exams must be registered.
- Institutions must show their certificate of approval.
- Relevant forms must be completed and documented prior to any tests.
- A statement must be signed by the patient and the doctor.
- A notification stating that sex-based hiring and selection are illegal must be posted in all institutions.
- Any party who violates the Act is subject to a fine and a term of jail.
Why Is Gender Determination Prohibited?
There are only 940 girls for every 1000 males in India, according to the 2011 population census. The western Indian states of Haryana, Punjab, and Rajasthan have a very skewed gender distribution. Sons are favoured above daughters in a patriarchal society when the dowry system, poverty, and (in some situations) illiteracy are prevalent. One of the reasons behind this is also that sons are traditionally considered to be the earning members of the family, while females are primarily associated with household chores and child-rearing duties.
Female foeticide is punishable by lengthy prison terms, but sex-selective abortion is nevertheless practised in the nation. The country as a whole has a skewed ratio, with many urban areas showing a similar level of gender inequality as rural areas. This suggests that the desire for male children outweighs the need to avoid state penalisation.
Despite the PCPNDT Act being in place since 1994 and the ban on ultrasound testing (a technique used for gender determination of the foetus) being forbidden since 1996, a doctor and his assistant were not found guilty of gender determination of a foetus until 2006. In many ultrasound and scan facilities around the nation, pre-natal diagnostic procedures that aids gender determination of the foetus are still used.
The Aim of the Pre-Conception and Pre-Natal Diagnostic Techniques Act
- Ensure that all promotion programmes for young girls at the district level are implemented.
- The PNDT Act's implementation is being tracked and assessed with the help of the community.
- Participate in community oversight of the Act's implementation to make sure participating agencies are held accountable.
- Birth registration, medical abortion, and pregnancy termination are all monitored by Anganwadi staff and accredited social health activists (ASHAs).
- Finding Act violators by conducting extensive audits of the form "F" completed by expectant patients at the clinic.
- Create a district, state, and national annual plan.
Female Foeticide - Causes and Consequences
Causes:
- The dowry practice in our society is the primary contributor to female foeticide. Numerous lower-class families forcefully kill many girls while they are still in the womb out of dread of the dowry. They are concerned about paying the dowry for their girls' weddings, which the poor cannot afford.
- Many parents view girls as a financial responsibility. They believe that spending money on a girl will be a complete waste because she will go in with her future husband's family after the wedding. Hindu mythology holds that giving birth to a male is a direct route to heaven. The daughters are killed before birth because they are entrapped in such dogmatic beliefs.
- The rise in inflation is the second major factor contributing to female foeticide. Parents contemplate a hundred times before having a girl kid due to the increase in inflation. They are concerned about their daughter's education and future marriage.
- Another reason for female foeticide is the development of technology. Today, parents choose the child's gender before birth, and if they may proceed to terminate the newborn.
- Corruption is a major contributor to the increase in female foeticide. Some doctors commit this horrific deed in order to satisfy their own greed.
Consequences:
The population of women is dramatically declining. As a result, it is getting harder to find eligible for marriage. This then results in the trafficking of girls. News reports claim that young women from Assam and West Bengal are abducted and sold for marriage in Haryana, the state with the lowest child sex ratio in the nation. Our society is becoming more male-dominant as a result of the decline in the number of women, which is a bad sign. Men's perceptions of themselves as superior and above the law have increased as the number of women has decreased, which has led to the exploitation of women. Human trafficking has increased as a result of female foeticide. In regions where femicide has caused a shortage of women, 15,000 Indian women were bought and sold as brides in 2011.
Offences and Penalties under PCPNDT Act
The offences covered by this law and the potential punishments are outlined in Sections 22 to 26 of the Preconception and Prenatal Diagnostic Techniques Act (PCPNDT).
Section 22- Under Section 22, it is against the law to advertise any clinic, laboratory, or other establishments that make use of radiography, imaging techniques, etc. in connection with a facility for determining the sex of unborn children. A fine of up to ten thousand rupees and a prison sentence of up to three years may be imposed for any breach of the rules in this section.
Section 23 addresses that it is also illegal for a gynaecologist, other healthcare professionals, the owner of a genetic laboratory, counselling centre, or clinic, or an employee of one of these establishments to provide professional or technical services while violating any of this Act's rules.
Under Section 22 of the Act, the offender faces a fine of up to 10,000 rupees and a sentence of up to three years in jail. Additionally, under Section 23 of the Act, the punishment might be raised to five years in prison and a fine of up to 50,000 rupees in the event of a subsequent conviction. In accordance with paragraph (2) of this Section, the pertinent authority may inform the State Medical Council of the name of the concerned medical petitioner. Penalties are intended to be used to take the necessary actions, suspend the defendant's registration in the event that charges are filed, and have his name entirely or for five years removed from the council's register in the event that he is found guilty.
A person may be sentenced to up to five years in prison and a fine of 50,000 rupees if they visit a genetic counselling centre, clinic, or laboratory for any reason other than those mentioned in Section 4's subsection (2). A second conviction also comes with a fine of one lakh rupees and a sentence of up to five years in prison.
Any woman who is obliged to undergo a diagnostic technique for sex selection is excluded from the application of Section 23 subsection, according to the proviso in this Section (3).
Section 24 of the Act assumes that the woman's spouse and her family are to blame for forcing a woman to receive a diagnosis other than those mentioned in Section 4 of the Act's diagnostic guidelines (2). Such a person is also accountable for facilitating an offence under Section 23 subclause (3) and is punished for that offence.
The punishment for breaking the PCPNDT Act's rules is laid forth in Section 25. If such a violation is not punishable in another place in this Act. A three-month prison sentence, a fine of up to Rs. 1,000, or both may be imposed as a punishment. In the event of a subsequent conviction, the fine can rise. For as long as there are convictions after the initial one, the price is raised to 500 rupees every day.
Businesses may be prosecuted under Section 26 for offences they commit knowingly or accidentally. If such an offence is done with the permission of the person in charge of the organization's management, that person will be held accountable and punished appropriately.
Under Section 27, which also forbids bail and compounding, every offence is cognizable.
The necessary authorities who may declare an offence to be a crime are listed in Section 28 of the Act, along with the respective courts' areas of authority.
Conclusion
Expectations were not met regarding the degree of implementation of the PCPNDT Act. Women's beliefs toward children's sex and social norms that favour male kids remain deeply embedded in our culture. The media, social workers, and medical professionals must all actively participate in educating the public and transforming women's attitudes. On the other hand, the fact that the gender ratio under the PCPNDT Act has increased to 108.18 men for every 100 women, or 947 women for every 1000 men, and is rising at a projected yearly rate of 0.19 per cent is an encouraging sign. The government has launched a number of programmes to prevent female foeticide and advance the welfare of girls, despite the fact that there is still lack of awareness of this crime in rural India. to get people living in rural India to quit doing these things.
One such scheme is the "Mukhbir Yojna." A prize of 2 lakh rupees will be given to anyone who alerts the appropriate government department about any doctor or other medical professionals involved in the practice of gender determination or female foeticide. Finally, it is clear that the health care laws pertaining to the protection of the female foetus have changed, but the medical community still needs to be safeguarded from these small offences. Due to the fact that doctors have a legal obligation to treat the sick and injured, it is important to carefully consider if it is legal to run a clinic, hospital, or nursing home with all of these rules that are in line with their duties and medical ethics.