FEMALE FOETICIDE: UNDER THE PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC TECHNIQUES ACT, 1994

SUBMITTED TO PROF.T.RAMAKRISHNA

UNDER THE SUPERVISION OF MS.ANURADHA SAIBABA SUBMITTED BY KUMUD MALVIYA ID-477 L.L-M 1st YEAR

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY

TABLE OF CONTENT

RESEARCH METHODOLOGY INTRODUCTION WHAT IS FEMALE FOETICIDE WHAT IS PNDT WHAT WAS THE NEED FOR SUCH AN ACT CONTITUTIONALITY OF THE ACT CONDITION FOR THE USE OF PNDT CHARACTERISTICS OF THE ACT FEMALE FOETICIDE: SOCIAL CULTURAL SCENARIO CONCLUSION & SUGGESTION

STATEMENT OF THE PROBLEM-There is a need to ascertain as to

what is the defect in this Act due to which it is not effectively working thereby causing a rapid decline in the female child ratio.

Aim and Objective- To find out the defects in the act and some
further suggest the remedies to make the Act effective.

Scope and Limitation- This presentation deals with the discussion to

determine the effect and certainty of the PC and PNDT Act, 1994 to curb the problem of female foeticide.

Research Question- 1. What is the defect in PCPNDT ACT, 1994?

2. What is the factor behind female foeticide problem? 3. What is the judicial trend on female foeticide? 4. What is the provision if it conducted on line by sending sample for the determination of sex to the person or clinic outside to India?

Hypothesis- Although The PC and PNDT Act contains effective

provision and if implemented accordingly it is enough to control female foeticide but there is lack of will power on the part of the government in implementing it.

Sources- The student has depended on the secondary sources and

also on primary sources.

Mode of Citation- A uniform method of citation is followed through

the paper.

INTODUCTION- Female foeticide in India is a grave problem. Despite

being in 21st century the mindset towards the girl child is unchanged. After realising the seriousness of the problem an Act named The Pre-Natal Diagnostic Techniques [Regulation and Prevention of Misuse] Act, 1994 and The Pre-Natal Diagnostic Techniques [Regulation and Prevention of Misuse] Rules, 1996 was introduced in the Parliament. After considerable amendments, this
Act was called Pre-Conception and Pre-Natal Diagnostic Techniques [Prohibition of Sex Selection] Act, 1994. But as per census 2011 the female child ratio declined to 914 on per 1000 which showed the failure of this Act.

What is Female Foeticide?

Killing of foetus after determination the sex in mother womb. Determination of sex of the child in womb of the mother with the intention to abort the foetus in case of it was a girl child is termed as female foeticide. Abortion after the selection of the sex of the foetus depicts the preferential treatment that is given to a male. This is generally observed in those areas where females are treated to be inferior in society.

The Pre-Conception and Pre- Natal Diagnostic Techniques [Prohibition of Sex Selection] Act, 1994
The women have been subjected to bias for a very long time. They have been denied rights or it can be said considerable enjoyment of rights has not been there for them over centuries. Shah, J in a case observed that It is an admitted fact that in Indian society, discrimination against girl child still prevails, may be because of prevailing uncontrolled dowry system despite the Dowry Prohibition Act, as there is no change in the mindset or also because of insufficient education and tradition of women confined to household activities.
With reference to all these situations and to control the increasing rate of female foeticide the government passed the PC and PNDT Act, 1994.

What is Pre-Natal Diagnostic Techniques?

In Literal sense it means use of the diagnostic techniques before the birth of a child on a pregnant woman for the purpose of determining of sex of the foetus.

What was the need for such an Act?

Medical Technologies have played a crucial role in reinforcing negative patriarchal system that demands male heirs. In fact development in the technologies of sex selection techniques has a direct relation to the declining juvenile sex ratio in our country. Amniocentesis was first introduced in India in 1975 by the AIIMS for detecting congenital deformities in the foetus. But it was largely misused to determine the sex of the unborn child and to carry out sex selective abortion. To regulate and prevent misuse in detection of sex, the PC and PNDT [Prohibition of sex selection] Act was enacted in 1994.1

Constitutionality of the Act

Female foeticide is against the fundamental right to equality and freedom from gender based biased under the Indian Constitution. In the case Vinod Soni and another v. Union of India2 the appellant challenged the constitutional validity of the PC and PNDT Act, 1994 and said that it is against the Art.14 and 21. The court held that the Right under the Art. 21 cannot include right to selection of sex whether pre-conception or postconception. The art.21 is now said to govern and hold that it is a right of every child to full development .The enactment namely PC and PNDT Act, 1994 is factually enacted to further their right under art.21 which give to every child right to full development. A child conceived is therefore entitled to under art.21 as held by the SC, to full development whatever be the sex of that child. The determination, whether at pre conception stage or otherwise is denial of a
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Pndt.gov.in/writereaddata/mainlinkfile/file54. Last visited at 7/09/11 pndt.gov.in/writereaddata/mainlinkfile/file43. Last visited at 5/09/11

child, the right to expansion, or if it can be so expanded right to come into existence.3 In the case Allied Themes [CEHAT] And others v. Union of India4 the petitioner prayed inter alia that as the Pre-natal diagnostic techniques contravene the provisions of the PNDT Act, 1994 the Central government and the State government be directed to implement the provisions of the PNDT Act [a.] by appointing appropriate authorities at State and District levels and the Advisory committees; [b.] the Central government are directed to ensure that Central Supervisory Board meets every 6 months as provided under the PNDT Act; and [c.] for banning of all advertisements of pre natal sex selection including all other sex determination techniques which can be abused to selectively produce only boys either before or during pregnancy5. After filing of this petition, notices were issued and thereafter various orders from time to time passed to see that the Act is effectively implemented.

Condition for the use of Pre-Natal Diagnostic Techniques

1. 2. 3. 4. 5. 6. Chromosomal Abnormalities; Genetic Metabolic Diseases; Haenoglobinopathies; Sex-linked genetic diseases; Congenital anomalies ; Any other abnormalities or diseases as may be specified by the Central Supervisory Board.

Section 4[2] of the Act provides for those circumstances under which the prenatal diagnostic may be done. Other than this exception all other activities would come under the ambit of an offence and shall be punishable under this Act.

Characteristics of the Act

Prohibition of sex-selection before and after conception. [sec3A]

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Id. [2003] 5 Pndt.gov.in/writeraddata/mainlinkfile/file44. Last visited at 5/09/11

Regulation of pre-Natal Diagnostic Techniques for detecting of genetic or other abnormalities, by restricting their use to registered institution. [sec-4] Prohibition of advertisement of the technology for the purpose of determining sex and punishment therefore. [sec-22] Prohibition on sale of ultrasound machines. [sec-3B] Enhanced punishment for re-contravention of the Act.

Demerits of the Act

The Act presumes circumstances which may be considered for detection of the sex of the foetus. But there are some defects such as What is the provision if the pre-natal diagnostic techniques are used by providing online service? Due to certain procedural difficulties certain illegitimate acts which contemplate use of pre-natal diagnostic techniques cannot be detected.

Consequences of the Act [failure]

The below mentioned provisional census of 2011 depicts detoriation in the sex ratio. Thus it can be envisaged that the Act has failed to achieve its target as there has been no improvement in sex ratio but rather the condition has worsened than before. CHILD SEX RATIO FROM 1961 TO 2011 0-6 AGE GROUP Year Sex - Ratio 1961-----------------------------------------976/1000 1971-----------------------------------------964/1000 1981-----------------------------------------962/1000 1991-----------------------------------------945/1000 2001-----------------------------------------927/1000

2011-----------------------------------------914/10006

According to the above chart it become clear that after passing of the Act there has been no improvement in the situation rather it become worse in comparison to the previous year. The sex ratio which was 976 per 1000 male child in 1961 declined to the 927 in 2001 and as per provisional census report of 2011, it is 914 on per 1000 male child. It thus becomes clear that the Act has failed to curb the problem of female foeticide.

Female Foeticide: Social-cultural Scenario Preference for son Patriarchal structure of family Dowry system Religious superstitious

The child sex ratio of 914 does clear that social and religious believes has dominated the Indian societies. The superstitious that son will carry the family name forward. A son does not have to be married off with the dowry, he will grow up to be the broad winner and support his family. This entire factor prevents to grow up the mind and create difficulties in implementing the laws concerned.

CONCLUSION AND SUGGESTION

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Sources: India Census Report of Respective Years

 Legal provision for bringing the online facilities conducting to

detect the sex of the foetus either pre-conception or postconception under the ambit of the Act by which this Act may become effective.

Women empowerment may be the solution of the problem.

Empowerment of women would make them less dependent and she would not be a burden on the family. Empowerment would enable her to fight with the negative social norms of marriage and life.

Educating the masses would solve the problem and it would

lead to a widening of thoughts. There should be awareness programme for people and public debate on this.

There need a co-relation between laws relating or supplement

to each other.

Dowry prohibition Act should be implemented effectively. Reaching the masses through religious/spiritual leaders keeping
in mind the vast multitudes that Indias religious and spirituals leaders reach out to get them involved in spreading awareness on the issue of sex selection.

Working with the Media and Entertainment Industry.