Misuse of reproductive technologies The making of the PCPNDT act

It was in 1975 with the Report of the Committee on the Status of Women in India (CSWI), ‘Towards Equality,’ that the issue of declining sex ratio as an indicator of the status of women was brought into the public discourse. Mazumdar, the main architect of the report, points out, ‘For the Committee on the Status of Women in India, the declining sex ratio was both a discovery and the most convincing measure to provide body and substance to its grim findings’. It was around this time that amniocentesis was introduced in the All India Institute of Medical Sciences in Delhi.The test which was mainly to detect congenital abnormalities came to be misused for the purpose of sex determination leading to sex-selective abortion. A sample survey of amniocentesis in AIIMS to find out about foetal genetic conditions managed to enrol 11,000 pregnant women as volunteers for its research. The main interest of these volunteers was to know the sex of the foetuses. Once the results were out, these volunteers who were told that they were carrying female foetuses expressed the desire for an abortion. This was followed by a protest launched by women’s groups. This experience prompted the Health Minister at the Centre to ban sex determination tests in government-run hospitals in 1978. Since then, the private sector started expanding its tentacles in this field so rapidly that by the early 1980s amniocentesis and other sex selection tests became bread and butter for many gynaecologists.

The active involvement of women’s groups, women’s movement and civil society groups emerged at this stage of the development of the issue. Women’s groups in Delhi, Mumbai and other places issued a statement against such tests. A loose coalition of such groups was formed with the Centre for Women’s Development Studies, Research Unit on Women’s Studies, SNDT University, Mumbai and the Voluntary Health Association of India. The main purpose of this coalition during this phase was to create a pressure group which would highlight the issue mainly in the media. In 1985, a group of activists from women’s groups and people’s science groups in Mumbai agreed on the need for more consistent action in banning sex determination tests, seeing the extent to which they had spread. A joint action group called the Forum Against Sex Determination and Sex Pre-selection (FASDSP) was formed at this stage.

Keeping in mind that one of the primary weaknesses of the earlier attempts at building up coordinated action was lack of a broader perspective, it was decided that this campaign would consider the issue at multiple levels. The question of sex determination and pre-selection was then primarily seen as: (i) an integral part of women’s oppression and discrimination; (ii) a misuse of science and technology against people in general and women in particular; and (iii) a human rights issue.The focus of the campaign was to highlight the issue of discrimination between boys and girls and also an attempt to show that sex determination was yet another form of violence against women, part of the chain made up of female infanticide, wife-burning, sati, etc. It was then that an immediate regulation of pre-natal diagnostic techniques was sought, leading to seeking of the support of the state and the legal machinery.

The problem that the forum countered here was how not to overlap over the Medical Termination of Pregnancy (MTP) Act as they did not want to curtail women’s right to abort. The alternative was a new law which was formulated with the regulation and prevention of misuse of prenatal diagnostic techniques in mind. Signature campaigns, a massive media campaign highlighting the issue and pilot studies on the prevalence of sex determinations were part of the process of putting pressure on the government to pass the Act. In June 1988, the Act came into being in the state of Maharashtra.

Although the Forum realised soon that the Act was limited in many ways and effective only in marginally reducing the number of clinics, it also recognised that it had resulted in a nation-wide interest in the issue. Soon three other state governments announced their intention to introduce similar legislation. This included Goa, Gujarat and Orissa. This was followed by the central Act known as the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act (PNDT Act) which was unanimously passed by Parliament in July 1994.

The main purpose of the central Act was to provide for the regulation of the use of pre-natal diagnostic techniques for the purpose of detecting genetic or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex linked disorders for the prevention of the misuse of such techniques for the purpose of pre-natal sex determination leading to female foeticide. The Act specifies the methods of regulation of the genetic counselling centres, genetic laboratories and genetic clinics. It emphasises on the written consent of the pregnant woman and prohibits communication of the sex of the foetus. It also provides for the constitution of a Central Supervisory Board to monitor the implementation of the Act and the creation of Appropriate Authorities and Advisory Committees to implement the Act.

The offences and penalties for contravention include imprisonment which may extend to three years and fine which may extend to Rs. 10,000. It prohibits any advertisement in any manner regarding facilities of pre-natal determination of sex available at any centre, laboratory, genetic clinic or any other place. The offence under this Act is cognisable, non-bailable and non-compoundable. Cognisable offence means that the police may arrest without a warrant the offender or a person who is suspected of committing the offence on reasonable belief. The offence is non-bailable meaning thereby that getting the bail is not the right of the accused. It may only be granted or refused based on the discretionary power of the court. It is also a non-compoundable offence meaning that no settlement between the parties is possible to drop the criminal proceedings.

The Act, as can be seen by the provisions, was a comprehensive piece of legislation which included all aspects of the issue. However, a reading of the Act reveals a distancing from the issue of sex selection as discrimination or violence against women. The basic features of the Act are focused around the issue of sex determination and not sex-selective abortion. The emphasis to keep the Act separate from the MTP Act may have been one of the primary reasons for doing so.

In the process, issues of women’s rights over their bodies, the complexity of the decision of sex-selective abortion and the consequences on women’s health were left unaddressed. Women’s groups and other forums working on the issue raised objections to the clinical separation of the issues affecting women’s health and rights and the idea of sex determination. They emphasised that sex determination and sex-selective abortion do not happen in a vacuum and the multiple forms of discrimination and their intersectionality do not find any reflection in the Act.

Largely dissatisfied with the framing of the Act, the women’s movements pressurised for amendments to the Act. Though the Act came into force in January 1996, no evidence of its implementation was seen. This lack of concern and political will to implement the legislations by the centre and states led to a Public Interest Litigation (PIL) in the Supreme Court. The PIL was filed by three petitioners—Dr. Sabu George, a social activist, Mahila Sarvangeen Utkarsh Mandal (MASUM), Pune, and the Centre for the Enquiry of Health and Allied Themes (CEHAT), Mumbai —in February 2000. In May 2001, the Supreme Court directed the central government to implement the Act and called upon all state governments to implement the Act.

The emergence of new reproductive technologies or preconception technologies to select sex hindered the significance and reach of the Act. The preconception techniques which include the Ericsson method (X and Y chromosome sperm separation) and other methods like pre-implantational genetic diagnosis were not covered under the Act. While campaigning against sex-selective abortion, the women’s movements raised the question of the availability of such reproductive technologies which made it possible to select the sex of the foetus even before conception. Ethical and rights based issues concerning abortion of female foetuses were no longer valid with the emergence of such technologies.

However, the women’s movements situated the emergence of pre-conception technologies in the sphere of discrimination and violence against women.Irrespective of whether abortion of female foetuses took place, the very basis of the use of the preconception technology was to discriminate and eliminate any chance of the birth of a female infant. It was daughter aversion in a new garb, the dimensions of gender discrimination and gender violence remaining the same.

The Supreme Court directive and the pressure from the women’s movement built up momentum finally leading to the amendment of the Act with the amendments coming into effect from January 2003. The title of the Act has been suitably amended to reflect this and the title of the Act now reads ‘The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act’ (PCPNDT Act). Certain amendments have also been brought about in the Rules of 1996 to ensure effective implementation of the Act which came into effect from February 14, 2003.Apart from what was included in the earlier Act, the amended Act provides for the prohibition of sex selection, before or after conception. Sex selection refers to a range of six categories such as procedure, technique, test, administration, prescription and provision of anything for the purpose of ensuring or increasing the probability that an embryo will be of a particular sex. The penalties for the offence have been increased where the punishment will be for a term which may extend to three years and with fine which may extend to Rs. 50, 000 for the first offence and for any subsequent offence with imprisonment which may extend to five years and with a fine which may extend to Rs. 1,00,000.

One of the demands of the women’s movement was to critically situate the law in favour of women as far as penalties under the Act are concerned. The amended Act clearly supports this when it says in Section 24 that:

Presumption in the case of conduct of pre-natal diagnostic techniques: Notwithstanding anything contained in the Indian Evidence Act 1872, the court shall presume unless the contrary is proved that the pregnant woman was compelled by her husband or any other relative, as the case may be, to undergo pre-natal diagnostic technique for the purposes other than those specified in the Act.

The women’s movement’s main concern here has been to bring about the recognition of the oppressive conditions and constraints of a patriarchal society which bear upon the decision-making of women when it comes to sex determination and sex selection. Menon presents a nuanced argument against this. According to her:

It is true that women may be implicated by families and end up being punished when they rarely are in a position to make choices. Nevertheless, what are the implications of denying agency altogether to women on the grounds that they are never responsible for their decisions and therefore should not be considered culpable at all? Within the realm of legal discourse, it is dangerous for feminists to construct women as incapable of taking autonomous decisions — the consequences for women’s struggles against legally sanctioned discrimination in other spheres could be fatal.

While Menon’s concern about how the emphasis on women as passive victims in this discourse can affect the expansion of women’s rights in other spheres may be well placed, the popular discourses around sex selection present a contrary image of women.

In popular discourses either in the media, in literature or in civil society forums, the appeal to prevent sex selection/sex-selective abortion is usually made to the ‘woman as mother.’ This recognition of the active agency of the woman in seeking sex determination or selection is also aided by the fact that sex selection is more commonly seen in the educated, urban and prosperous populace. (This trend has changed considerably today with sex selection seen across class, region and other divides.) The woman is seen as complicit and as exercising a Rs. choice’ here.

Irrespective of the emphasis in the laws to be sensitive to the patriarchal pressures on women, the general verdict in this case is to regard the woman guilty unless proved otherwise. The question of the culpability of the woman and the gender insensitive interpretation of the law by appropriate authorities and its ineffective implementation go hand in hand. The complicities of the state and society are often a matter of shared ideologies and perceptions about a problem.

The legal remedy to deal with sex determination and sex-selection, that is the PCPNDT Act, has been framed around broad issues—the ethical use of new reproductive technologies, the role of the medical community and the market and the families. Irrespective of some loopholes, the PCPNDT Act can be considered a sound piece of legislation which makes the act of sex determination and sex-selective abortion a non-bailable, cognisable and non-compoundable offence. Ironically it is the most unused legislation for a number of reasons.

The practice of sex determination and sex-selective abortion is possible due to a wide group of actors who can be neatly divided into two categories, the service users and the service providers. The subtle form of determining the sex of the foetus, communicating it and the nexus between the users and providers make it difficult to register cases. Second, the woman stands to be implicated in this even if it is legally stated that she is either coerced or socially conditioned to do so. Third, most of the appropriate authorities are from the medical community and commonly have a fraternal bond with the doctors who commit the crime thereby leading to weak cases and very few convictions.⁷

7. This provision has been changed since then because of women’s groups and other civil society agencies protesting about the fraternal bond between erring doctors and implementing authorities, i.e. the Chief Medical Officers of the districts. Now it is the administrative head of the district (the District Collector / Magistrate / Deputy Commissioner) who is the designated Appropriate Authority in many states. However, the fieldwork for the research reveals that in most cases the administrative heads delegate this work back to the Chief Medical Officers leading to a status quo in this situation.

Then there is the contextualisation of the issue around the idea of women’s choice to have sons, the notion of her self-esteem bound up with her giving birth to sons and the haloed idea of family honour associated with the birth of sons. Appropriate Authorities, irrespective of their official position, are steeped in a culture which perceives son preference as natural fallout of the secondariness of daughters and unsubstitutability of sons.

The role of doctors in exacerbating or aiding sex-selective abortion is clearly stated in the law In practice, though, the tendency is to view this role as a lesser evil since the doctor is considered as only providing what the family ‘wants.’ It is seen as a pure econometrics of demand and supply. The issue, as it is played out in the public fora, tends to be seen as a discrimination meted by women against her own kind. The pressures of mother-in-law on daughter-in-law’ and/or the Rs. woman’s own wish to have sons; all contribute to the criminalising of women and the absolving of all guilt on part of the husband/men and the doctors.

The acceptance of the active agency of women in perpetuating this practice goes against the stereotype of women as passive victims here in need to be rescued by state aided gender-friendly legislation. The discourse of gender discrimination remains untenable in this scenario. The low conviction rate on this issue bears testimony to this fact. There have been only 206 convictions under the Act in the last two decades.

The patriarchal mindset of the Appropriate Authorities appointed under the Act comes out clearly in a case in Delhi. Dr. Mitu Khurana is the first woman complainant under the PCPNDT Act in Delhi. In 2005, according to Mitu, she was coerced by her marital family to undergo sex determination during her pregnancy. When she refused to do so, she was cheated into undergoing an ultrasound where the sex determination test was done. Her marital family then pressurised her for termination of her pregnancy. Mitu left her marital home and moved to her natal home. She gave birth to twin daughters. After three years when her in-laws and husband refused to accept her back with her children, Mitu decided to lodge a complaint under the PCPNDT Act. She was disappointed to find that the Act and the publicity on the issue had done very little to change the mindset of the implementing authorities. In her own words:

I decided to lodge a complaint under this Act and not under the Domestic Violence Act or any other law as I wanted to reform my family and also penalise the doctor who conducted the tests. The statements of the Health Minister, the Prime Minister and the massive awareness drive on this issue encouraged me to do so. I wanted to set an example for the society so that when my daughters grow up they do not have to face what I have faced. I felt the Appropriate Authorities will give all support to me. But to my utter shock they treated me like a criminal. They discouraged me to file the complaint. They said I did not have a case since my daughters were alive. The fact that I fought a very tough battle to save my daughters was of no concern to them.

Here are some of their telling statements:

When I met the Appropriate Authority in the district, he said, Rs. What were you doing for the last three years? Anyway your daughters are safe, only sex determination took place and not abortion…. It is now too late to lodge a complaint.’ When I told him that the Act does not specify a time limit for registering complaints, he retorted, ‘Not as an authority but like a father, I am telling you … you are still young, … you can give a son to your husband even now When I wanted to press charges against the doctors involved, I was told, ‘You know you will be responsible for closing down ultrasound facilities…. They are technologies required to save lives.’ At the end the Appropriate Authority’s request was that if I decided to get back with my husband I should let him know so that they would not have to penalise the poor doctor involved.

This kind of mindset of Appropriate Authorities and other implementing authorities poses an obstacle in having the issue recognised as gender discrimination. Irrespective of feminist theorising on it, available in the public domain in the form of documents, handbooks, posters, Frequently Asked Questions (FAQs) and sporadic gender training workshops, officials continue to be steeped in patriarchal thinking and reinforce that in policy formulation and implementation.

The syncretic feminist perspective with an intersectionality ach reveals that the entrenched and pervasive patriarchal thinking on the issue come to be strengthened under the garb of modernity and development. The ‘educated and empowered’ middle class woman is considered by society as taking a step in a progressive direction when she avails of reproductive technologies to give birth to the ‘male heir of her family.’ The nexus between culture and commerce is clearly brought to the fore here. While the state makes an overt commitment to social responsibility and legal redressal, it finds itself treading with care and caution when it comes to the cultural sphere and the domain of the market. The matters of culture become a matter of shared ideologies between the members of society and law implementers who belong to the same society.

In an insightful study of murders in the name of honour, Prem Chowdhry talks about the collusion of police forces with local caste groups to perpetuate violence against couples who marry by choice. According to her, irrespective of laws committed to equality, law enforcement agencies mirror societal stereotypes and reinforce power structures which are in existence in society. The patriarchy which is seen in the family thus gets reflected in the state. The state frequently colludes with traditional forces to de-legitimise attempts to break out of the traditional system. In the process, it often overrides questions of legal and human rights of individuals. It also clamps down on female sexuality and on the exercise of women’s rights over their bodies. Radical and socialist feminist positions do dwell on these complexities of the state and gender discrimination.

Maria Mies also argues that patriarchy and capitalism are interlinked. The patriarchal system is a world system with its own network of institutions and practices such as family, expropriation of women’s labour and so on. The lives of women in the industrialised West, are dependent upon the exploitation of the third world, especially the women in these countries.

The partnership between neoliberal economics, the state and patriarchy has turned women’s bodies into an intensified site for mutual exchanges. Kumkum Sangari talks about multiple patriarchies which are present in all structures, institutions and interactions in society in the context of religious pluralism and uniform civil code. The misuse of new reproductive technologies for sex determination, sex-selective abortion and sex selection reveals a range of critical forms of gender discrimination which can be dubbed as neo-patriarchal in nature. The strengthening and the normalising of gender discrimination here provides an insight to the formulation of Rs. multiple neo-patriarchies’ today. The multiplicity of neo-patriarchies in the future can pose serious obstacles for women’s emancipation, since it comes clothed in the language of progress, development and scientific advance and therefore not amenable to being recognised as gender discrimination and violence as is in the case of sex-selective abortion.