Pre-Conception and Pre-Natal Diagnostic

Techniques (Prohibition of Sex Determination)

Act, 2003
 INDEX

 INTRODUCTION
 FEATURES OF THE ACT
 LANDMARK CASES
 CONCLUSION
 REFERENCES
 INTRODUCTION
All areas of India and all walks of life are affected by patriarchal traditions that date back
thousands of years. The census of 1991 revealed that there were significantly fewer females than
boys. The child sex ratio shows that the decline in the female birthrate is concerning. There have
been results of research that demonstrated that even in the twenty-first century; boys were still
preferred over girls. There was a need for a comprehensive law making gender testing illegal in
the Indian States since the practice of determining the sex of fetuses as a result of technological
advances had compelled the government to establish legislation so that female feticide could be
prohibited or regulated. Between 0 and 6 years old, there were 919 females for every 1000 boys
in 2011, down from 927 in 2001 and 945 in 1991.

Background of the PCPNDT Act:

The Indian government approved the Pre-Natal Diagnostic Techniques (Regulation and
Prevention of Misuse) Act (PNDT) in 1994, and it went into force on January 1st, 1996.
However, preconception sex selection has become feasible due to regular scientific
advancements. The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex
Selection) Act was renamed in 2003 when changes were made to the Act to incorporate this.
Policymakers changed the Act’s title to guarantee that sex selection is prohibited both before and
after conception as a result of the country’s declining child sex ratio.

Need for the PCPNDT Act:

A son has always been favored above a daughter due to cultural norms and patrilineal line of
succession regarding property rights. As a result, families had a propensity to keep having
children until a male child was born, which exacerbated India’s overpopulation problems. This
was the standard up until the 1990s when the development of ultrasound technology made
prenatal sex determination a common procedure. This resulted in the growth of thousands of
crores of businesses where doctors perform selective abortions for a fee. Female foeticide has
been encouraged in a variety of ways due to social prejudice against women and a preference for
boys, which has shifted the country’s gender balance in favor of males. Consequently, it was
necessary to pass the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex
Determination) Act, 2003 (PCPNDT) legislation.
 FEATURES OF THE PCPNDT ACT

 Prenatal diagnostic practices are defined under Section 2(i) of the PCPNDT Act, 1994. It
refers to all medical operations, including:
 Ultrasonography,
 Foetoscopy,
 Obtaining or removing samples of chorionic villi, amniotic fluid, taking a blood sample, a
tissue sample, or any other bodily fluid and sending it to a genetic laboratory or a genetic
clinic for carrying out any prenatal diagnosis for sex selection before or following
conception,
 Prenatal diagnostic procedures are defined in Section 2(k) as follows:

“pre-natal diagnostic test” means ultrasonography or any test or analysis of amniotic

fluid,chorionic villi, blood or any tissue or fluid of a pregnant woman or conceptus
conducted to detect genetic or metabolic disorders or chromosomal abnormalities or
congenital anomalies or haemoglobinopathies or sex-linked diseases”;

 While these procedures and tests are together referred to as pre-natal diagnostic methods in
Section 2(j).
 The PCPNDT statute defines sex selection as the process of determining the foetus’s sex and
removing it if it is of undesirable sex.
 The Act forbids sex discrimination both before and after conception.
 By limiting their usage to detecting genetic abnormalities, metabolic diseases, chromosomal
abnormalities, certain congenital deformities, hemoglobinopathies, and sex-related illnesses,
it controls the use of pre-natal diagnostic methods including ultrasonography and
amniocentesis.
 The sex of the foetus will not be determined by any test, including ultrasonography, at any
laboratory, centre, or clinic.
 No one, not even the person performing the legal process, is allowed to express the sex of the
foetus to the expectant mother or her family by words, signs, or any other means.
 Under Section 22 of the Act, anyone who places a notice, circular, label, wrapper, or other
document advertising pre-natal and pre-conception sex determination services, or publicises
 through interior or other media in digital or print form, or participates in any noticeable
representation made by hoarding, wall painting, signal, light, sound, smoke, or gas, can be
sentenced to up to three years imprisonment and fined Rs. 10,000. Further, Chapter VII
provides for other offences.
 Chapter IV (Sections 7 to 16(a)) covers the establishment of the Central Supervisory Board,
which will, among other things, examine and keep an eye on how the Act and Rules are
being implemented. State and Union Territory Supervisory Boards are to be created for the
same purpose under Section 16(a).
 Chapter V (Section 17, 17(A)) includes Advisory Committees and Appropriate Authorities.
Under Section 17, the appropriate authorities are granted a wide range of powers, including
the ability to issue, revoke, or suspend a centre’s registration, as well as the ability to look
into complaints and take legal action. The Appropriate Authorities have the authority to issue
search warrants, require the production of documents, and call people, among other things.
 Under Section 18 of the Act, any genetic counselling centre, genetic laboratory, and genetic
clinic having an ultrasound or imaging machine may register.
 According to Section 20 of the Act, the registration certificate may be suspended or revoked
suo-moto in response to a complaint by delivering a show-cause notice and providing
justification therein.
 LANDMARK CASES

UNION OF INDIA V. VINOD SONI & OTHERS, 20051

In this case, the petitioners were a married couple. They had essentially raised two arguments
against the Act’s constitutionality: first, that it violates Article 14 of the Indian Constitution, and
second, that it violates Article 21. However, the Article 14 challenge was not pushed into
submission at the time of the hearing. However, the Hon’ble High Court pointed out the flaw in
this justification by stating that “the right to personal liberty cannot be stretched in any way to
include the freedom to forbid the conception of a female or male foetus, which should be left to
the will of nature.” The High Court held that “these rights, even if further expanded to the
extremes of the possible elasticity of the provisions of Article 21, cannot include the right to
selection of sex, whether preconception or post-conception,” citing Supreme Court decisions that
explain that Article 21 includes the right to food, clothing, a decent environment, and even
protection of cultural heritage. The High Court noted that “this Act is factually enacted to
advance the child’s right to complete development as provided for under Article 21.” Therefore,
regardless of the infant’s sex, a conceived child has a right to full development under Article 21.
As a result, the High Court rejected the petition, ruling that there was no evidence at all that
Article 21 of the Constitution was violated.

SUO MOTU V. STATE OF GUJARAT, 20082

The following issues were raised in this case for consideration:

Does Section 28 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 permit a court to find a violation of the Act upon receipt of a complaint
from any official authorised by the appropriate authorities to file such a complaint?

Does the proviso to subsection (3) of Section 4 of the PNDT Act mandate that the complaint
should include specific claims about the violation of Sections 5 and 6 of the Act?

Is it the authority’s responsibility to establish that there was a contravention of the provisions of
Section 5 or 6 of the Act

1
2005CRILJ3408, 2005(3)MHLJ1131
2
CRREF/420/2008
Judgment:

A court may take notice of an offence under the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994, on a complaint submitted by any official
authorised in that regard by the relevant authorities, according to Section 28 of the PNDT Act.

The proviso to Section 4(3) of the PNDT Act does not mandate that the complaint alleging
accuracy or inadequacy in preserving records in the required way should also contain an
accusation of violating Sections 5 or 6 of the PNDT Act.

The burden of proving a violation of Sections 5 or 6 does not fall on the prosecution in a case
based on allegations of a shortcoming or error in maintaining the record in the manner specified
by sub-section (3) of Section 4 of the PNDT Act.
 CONCLUSION

Women’s attitudes towards the sex of children and societal factors that favour male offspring are
still ingrained in society. It is imperative that the media, social workers, and medical personnel
take an active role in educating the public and changing women’s attitudes.

The most prevalent goals of the pre-conception and pre-natal diagnostic procedures Act of 1994
are to monitor female foeticide and prevent it from occurring. After being put into effect, its
effectiveness is clear.

A good indicator is that the PCPNDT Act’s sex ratio has risen to 108.18 men for every 100
females, or 947 females for every 1000 males, and is increasing at an estimated annual rate of
0.19 percent. Although there is still a lack of knowledge of the crime of female foeticide in rural
India, the government has introduced several programmes to combat it and promote the welfare
of girls. in order for people in rural India to stop these activities. The “Mukhbir Yojna” is one
such plan. A person who notifies the government department of any doctor or other medical
personnel engaging in the practice of sex determination or female foeticide would receive a
reward of 2 lakh rupees.

At last, it can be seen that the medical and health law regarding protecting the female foetus has
resulted in some changes, but the medical fraternity needs to be protected at the same time from
these minor offences. For this reason, the right to operate a clinic, hospital, or nursing home
with all of these regulations that are in harmony with the responsibilities of doctors and medical
ethics needs to be properly examined, as doctors owe a constitutional duty to treat the sick and
injured.
 REFERENCES

 Pre-conception and pre-natal diagnostic techniques (Prohibition of Sex Selection) Act,

1994.
 The PC-PNDT act in a nutshell by Anita Bhaktwani, National Library of Medecine,
Indian J Radiol Imaging v.22(2); Apr-Jun 2012
 The Pre-Conception and Pre-Natal Diagnostic Techniques Act and its implication on
advancement of ultrasound in anaesthesiology; time to change mindsets rather than laws
by Mridul Dhar, Yashwant S Payal, and Vamshi Krishna, National Library of
Medecine, Indian J Anaesth v.62(12); 2018 Dec PMC6299775.
 Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Determination)
Act, 2003 by Ayush Tiwari, blog.ipleaders.com.