Challenges in implementing the ban on sex selection
On March 28, the very first doctor in India was sentenced to two years
in prison for violating the Preconception and Prenatal Diagnostic
Techniques Act. In the 11 years since the Act was enacted, why have
lawbreakers got away?
It is more than 11 years since the enactment of the Prenatal
Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994.
It is also at least two years since the more comprehensive, amended
Preconception and Prenatal Diagnostic Techniques (PNDT) Act, 2003. Yet
enforcing the law has proved to be a major challenge.
"Our main anxiety is that existing strategies are not working," says
Dr Puneet Bedi, Delhi-based gynaecologist, who has been part of the
anti-sex selection campaign for decades.
Today there are some 350 cases filed under the Act. Of these, 226 are
for running a diagnostic clinic without registration, and 26 are for
not maintaining accounts. Just 37 are for communicating the sex of the
foetus, and 27 for advertising sex selection. The first conviction
with a prison term was ordered on March 28, 2006, when a doctor and
his assistant were sentenced to two years in prison and a Rs
5,000-fine in Palwal, Haryana. Until this recent conviction, only one
case had resulted in successful prosecution, but even that person
received an insignificant punishment.
Ask government officials responsible for the programme why this
happens and you'll hear the same stories: the authorities are
under-staffed and over-worked and they have no money to pursue legal
action. And the powerful doctors' lobby renders their actions null and
void. Clinics that have been sealed for breaking the law have been
re-opened for practice within a few days. Lawbreakers have got away
after paying fines of just Rs 1,000.
At recent regional and national consultations and in informal
discussions, government and non-government representatives and
activist groups have talked about the difficulties faced in enforcing
the PNDT Act.
Activists such as Sabu George, who has been doggedly pursuing the
issue for years, note that it is easy to find out who is conducting
sex selection in any given district. Then why are these doctors
getting away scot-free?
As always in any such effort, much of the battle consists of ensuring
that the necessary trained personnel are in place, they have the
resources, and - most important -- they do what they are supposed to
do to implement the law. And clearly, this is not being done.
There are other difficulties as well. First, the crime takes place
behind closed doors, and with the involvement of both parties (the
doctor motivated by money, and the woman coerced by family and social
pressure). Evidence for a legal case is difficult to put together and
there may be limitations to the use of circumstantial evidence and
decoys to pin a case on a doctor. Second, the sex selection industry
is run by a guild of medical professionals who have, so far, shown
little inclination in putting their house in order - and the
authorities are apparently not taking them on. Third, there is a need
to tread carefully to ensure that opposing sex selection does not
undermine women's right to abortion. Finally, there is also the
question of what to do as new diagnostic tests on the distant horizon
take foetal sex detection outside the scope of the regulatory system.
Details of the law
The Preconception and Prenatal Diagnostic Techniques Act, 2003, covers
pre-conceptual techniques and all prenatal diagnostic techniques.
The following people can be charged under the Act: everyone running
the diagnostic unit for sex selection, those who perform the sex
selection test itself, anyone who advertises sex selection, mediators
who refer pregnant women to the test, and relatives of the pregnant
woman. The pregnant woman is considered innocent under the Act,
"unless proved guilty".
All diagnostic centres must be registered with the authorities. They
are required to maintain detailed records of all pregnant women
undergoing scans there. These records must include the referring
doctor, medical and other details of the woman, reason for doing the
scan, and signatures of the doctors. These records must be submitted
to the authorities periodically.
Penalties under the Act are imprisonment for up to three years and a
fine of up to Rs 10,000. This is increased to five years and Rs
100,000 for subsequent offences. Doctors will be reported to the state
medical council which can take the necessary action including
suspension.
For implementing the Act, "appropriate authorities" are appointed at
the state level and work with the director of health services, a
member of a women's organisation and an officer of the law. At the
district level, the appropriate authority is the casualty medical
officer or civil surgeon. Appropriate authorities are assisted by
advisory committees consisting of doctors, social workers and people
with legal training. Supervisory boards at the state and central
levels look at the implementation of the Act. The appropriate
authority may cancel the diagnostic centre's registration, make
independent investigations, take complaints to court, and take
appropriate legal action. It may demand documentation, search
premises, and seal and seize material. Courts may respond only to
complaints from the appropriate authority.
Arvind Kumar, the collector of Hyderabad district, has illustrated
what can be done through systematic work, and dedication. He actually
tracked down all 389 diagnostic clinics in the city, issued notices to
those which had not registered, took action against those providing
incomplete information, seized machines that were not registered, and
prosecuted equipment suppliers for supplying machines to clinics with
no registration licences. But Kumar is an exception to the rule.
Problems in implementing the law
Dr Ratan Chand, in charge of the PNDT cell at the union ministry of
health and family welfare, reported on the quality of enforcement
after touring the country as part of the National Inspection and
Monitoring Committee.
The committee visited selected districts in Maharashtra, Punjab,
Haryana, Himachal Pradesh, Delhi, Gujarat and West Bengal. It found
that appropriate authorities did a poor job of monitoring registered
clinics, even going through their documentation for accuracy. Many
clinics had poorly maintained records, with missing information,
incomplete forms, blank signed forms, forms not signed by the doctor,
etc. The authorities did not follow up court cases properly, or
monitor the use of portable ultrasound machines which are likely to be
used for sex selection.
The state authorities say there is not enough staff. Another problem
is that the appropriate authorities don't know their functions and
responsibilities. And when they're trained in their work, they get
transferred. For example, in Rajasthan, an NGO which trained over 125
appropriate government authorities found a year later, when reviewing
their work, that all but 35 of them had been transferred.
"The lack of resources is an excuse by the PNDT authorities," says Dr
Bedi. "What is the point of making doctors keep records if they are
not audited?"
Cases under the PNDT Act must rely heavily on such documentation.
Malini Bhattacharya, member of the National Women's Commission, points
out that a careful reading of all the centre's documents will provide
circumstantial evidence if something wrong is being done. Centres
doing sex selection are likely to slip up on maintaining the required
records. An examination of clinic records found that many clinics
reported doing just one or two scans a day which is financially
unviable for a scan centre. Obviously, they were not recording most of
the sonographies that they conducted. Many forms did not contain all
the required information. Some were unsigned; some clinics had blank,
signed forms.
Sting operations
Still, some have argued that circumstantial evidence is less than
ideal in proving a case. Ultimately, the best proof can come from a
pregnant woman who visits a doctor, asks for a sex detection test and
then testifies against the doctor. But this poses its own problems.
There is the risk that pregnant women could face subtle coercion,
however slight, to participate in this process. They may have to
remain involved with the case after the sting operation. Also, it is
not possible to sustain such efforts in the long term. On the other
hand, there does not seem to be any alternative to the use of decoys.
There are limits to the quality of evidence from clinic records alone.
"Auditing will provide enough evidence for legal action," says Dr
Bedi, arguing that sting operations are not necessary. "If data is
missing, it is presumed that it covers an illegal act. The basis of
the law is auditing the records - and this is not being done, and this
is deliberate."
The medical profession
The sex selection industry is run by medical professionals who have,
so far, shown little inclination in putting their house in order. This
was evident at a meeting in Kolkata where senior doctors shrugged
their shoulders on the matter of getting their associations to do
something about the illegal practice. No associations of medical
professionals have taken a strong stand curbing the unethical use of
diagnostic procedures. They have fought only as lobbies to control
their commercial interests. The fact is that providers have benefited
from promoting the technology for decades. Doctors have even gone to
court against the law.
Against sex selection, not against women's right to abortion
Opponents of sex selection must face both conceptual and practical
tensions. They must ensure women's right to abortion while opposing
sex selection. This balance is sometimes difficult to maintain. For
example, there have been suggestions that abortion clinics be
monitored and the sex ratio of female foetuses be tracked. Such
monitoring could threaten the tenuous access to abortion that women
have today.
The supply versus demand problem
There have also been efforts to shift the focus from the medical
profession's unethical practices to addressing the social demand for
sex selection. One of these is rewarding panchayats whose sex ratios
improve. The problem, as noted by participants at one recent meeting,
is that this can encourage the manufacture of data. Second, there are
not enough births within a panchayat to monitor for changes in sex
ratios - you need a sample of at least 28,000 births to be able to
detect changes in the sex ratio, says Dr Bedi.
Beyond regulation?
Finally, there is the question of what to do as technology advances to
take foetal sex detection beyond regulation. Foetal sex selection
using ultrasound has, so far, been doing the damage. But all this may
change in the next few years. When the PNDT Act was drafted,
ultrasound could not be used for sex selection until very late in the
pregnancy. That is no longer true, and this is the technique that is
most prevalent today. But the most frightening development, reported
by Dr Puneet Bedi at a recent consultation, is a blood test isolating
foetal cells from maternal blood, enabling foetal sex detection. This
could throw the entire campaign into chaos. "The technology is at a
very crude level today," says Dr Bedi. "And even if it becomes
accurate, it will be very expensive initially. But in any case, that
is a different fight. Today we have to fight the fightable fight." If
we don't win this battle, we won't win that one either.
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