Pre Natal Diagnostic techniques and ensuring curb on female foeticide: PCPNDT Act

The pre-conception and pre-natal diagnostic techniques(PCPNDT) Act, 1994 is an act of parliament that came into effect in 1996.

The act intended to curb the declining sex ratio and check female foeticide in India.

Earlier it was named as pre-natal diagnostic techniques (Regulation and prevention of misuse) Act, 1994, but after the amendment act of 2003, it is called the pre-conception and pre-natal diagnostic techniques (Prohibition of sex selection) Act (PCPNDT Act)

Section 2(i) of the PCPNDT Act, 1994 defines pre-natal diagnostic procedures.

It means all the medical procedures consisting of:

1. ultrasound,
2. foetoscopy,
3. taking or extracting samples of amniotic fluid, chorionic villi,
4. Taking blood sample or any other tissue sample or fluid from a man or a woman’s body to send it to a Genetic Laboratory or
5. Genetic Clinic for conducting any prenatal diagnosis for selection of sex before or after conception and,

Section 2(k) defines pre-natal diagnostic tests.

It means ultrasound or any test or analysis of amniotic fluid, chorionic villi, blood or any tissue or fluid of a pregnant woman to detect genetic or metabolic disorders, chromosomal abnormalities, congenital anomalies or haemoglobinopathies or sex-linked diseases in her body.

While section(j) collectively names these procedures and tests as pre-natal diagnostic techniques.

Features of the PCPNDT ACT, 1994

This act lays down certain objectives for its functioning:-

1. It prohibits pre-conception sex determination.
2. It prohibits the sales of laboratory equipment used for the ultrasound, to persons, clinics and labs which are non-registered.
3. It prescribed the procedure for conducting prenatal diagnosis after taking proper consent of the woman on whose diagnosis is going to happen.

   It is required to fill the PNDT form for ultrasound done on pregnant women.

   Provisions for appointment and constitution of the advisory board, committee and appropriate authority

4. Punishment laid for violation of the provisions and rules made under this act.
5. Provision for prescribed for an appeal to the superior authority.
6. Any public health facility registered under this act involved in similar activities must display a notice delineating the prohibition of sex determination.
7. Registration of genetic counselling centres, clinics, & laboratories, etc

As per the act’s section 4(2), the prenatal diagnosis gets conducted only on the patients having these anomalies:-

1. Chromosomal abnormalities
2. Genetic metabolic diseases
3. Haemoglobinopathies
4. Sex-linked genetic diseases
5. Congenital abnormalities
6. Any other abnormalities as prescribed by the Central supervisory board(CSB)

The diagnosis gets performed on the patients with the aid of radiation. This process is also called radiology.

Radiology

Radiology is the process of diagnosing the anomalies and treating a person’s body by ionising rays, i.e. X-RAY and non-ionizing rays, and ultrasound.

Radiology, a medical science branch, deals with radioactive substances, ionising radiations, radionuclides, nuclear magnetic resonance and other forms of radiant energy to diagnose problems in a person’s body.

The objective of radiology is to diagnose and treat the disease through medical imaging and,

The person who is a postgraduate in ultrasonography, imaging techniques or radiology is called an imaging specialist.

Registration For PCPNDT

Any genetic counselling centre, genetic laboratories and genetic clinics can get registered under section 18 of the act.

The PCPNDT online registration gets done through the web portals made available by every state.

An application can be moved to the appropriate authority under sub-clause (2) of the above section for registration of the genetic laboratory, clinic, counselling centre or centre having an ultrasound or imaging machine or any other machine capable of sex determination foetus.

Any such centre mentioned above, laboratory or clinic established before the commencement of this act must get registered within six months of the act’s commencement. 

If such a facility is not registered six months after the commencement of this act, it should cease to work.

Registration should be granted only to those counselling centres, laboratories, or clinics that can maintain prescribed equipment and standard and provide such facilities.

Every such counselling centre, laboratory or clinic gets a certificate of registration under section 19 of the PCPNDT act if the mentioned medical facilities comply with the requirements of types of equipment and standards laid under this act.

The certificate of registration can get renewed after a prescribed period by paying specific fees.

The certificate must get displayed at a conspicuous place at the place of business.

Suspension or Cancellation of Registration

The registration certificate can get suspended or cancelled under section 20 of the act, upon a complaint, by suo-moto action by presenting a show-cause notice and citing reason in the notice for such suspension and cancellation of license.

Even after giving a reasonable opportunity to the medical centre, if they fail to explain or if the authority is satisfied that they have appropriate reasons to proceed with the suspension or cancellation of registration, they can do so.

Section 20(3) states that when the appropriate authority deems that it is expedient or necessary to it in the public interest, it can suspend the registration of such place without giving any such notice but by prescribing the reasons to do so in writing.

Appeal Under PCPNDT Act

An appeal can be made against suspension and cancellation of registration to the

1. Central government against the order of an appropriate central authority;
2. State government against the order of state appropriate authority;

Under section 21 of the preconception and prenatal diagnostic techniques act.

Offences and Penalties Under PCPNDT Act

• Section 22-26 of the preconception and prenatal diagnostic techniques act defines offences under this act and the penalties to get implied on it.
• Section 22 prohibits the advertising of any clinic, laboratory or any such place involved in the process of radiology, imaging techniques, etc., related to the facility for pre-natal determination of sex.

  Any contravention of the provision under this section will lead to punishment, i.e. imprisonment up to three years and a fine which may extend to ten thousand rupees.

• While section 23 covers that, any gynaecologist or any other medical practitioner or any person who owns a genetic laboratory, counselling centre or clinic or any person employed at such place of business and renders his professional or technical services and contravenes any provisions under this act in providing those services, then,

  That person will get punished with imprisonment for up to three years with a fine extending to ten thousand rupees. This punishment may increase to five years on subsequent conviction with a fine extending to fifty thousand rupees.

  Sub-clause (2) of this section states, the appropriate authority concerned may report the name of the concerned medical petitioner to the state medical council.

  It’s done for taking necessary action and suspension of registration if charges get framed and on conviction remove his name from the council’s register for five years and permanently on the subsequent conviction.

  Sub-clause (3) of this section states if any person seeks the aid of any genetic counselling centre, clinic, or laboratory for any reason other than stated in subsection (2) section 4, then he is liable to get imprisonment for a period extending to five years and with fine of fifty thousand rupees. And on subsequent conviction with imprisonment up to five years and fine which may extend up to 1 lakh rupees.

  As per the proviso under this section, subsection (3) will not apply to any woman compelled to undergo a diagnostic procedure for sex selection.

• Further, as per Section 24 of the act, the husband’s and her relative are presumed to be liable for compelling a woman to undergo such a diagnosis other than the diagnostic techniques prescribed in section 4(2)

  And such a person is held liable for abetment of an offence under section 23 sub-clause (3) and punishment for that offence under the same.

• Section 25 prescribes the penalty for the contravention of the provisions under the PCPNDT ACT if no punishment is prescribed anywhere else under this act for such contravention.

  Such punishment may extend for three months or a fine extending to thousand rupees or with both. On subsequent conviction, this fine may extend to five hundred rupees daily for a period of subsequent conviction after the first conviction.

• Section 26 covers the offences committed by companies either knowingly or negligently. If such offence is committed by the consent of the person responsible for the company’s management, then he/she will be liable and punished accordingly.

Amendments In PCPNDT Act

1. It mainly covered the technique of pre-conception sex selection within the ambit of the act.
2. Bringing ultrasound within the ambit of the act.
3. Form provision for more stringent punishments
4. Empowering appropriate authorities with the civil court’s power enabling search, seizure and sealing of the machines and equipment of the violators
5. Regulating the sale of the ultrasound machines by manufacturers only to registered bodies.

Case study Involving PCPNDT Act

Union of India v. Indian Radiological and Imaging Association

Does the efficacy of law enacted by the legislature under the purview of an act can be checked through the power of judicial review?

In the case of Union of India v. Indian Radiological and Imaging Association 2018 SCC 221. the supreme court issued directions to the states and union territories for effective implementation of PCPNDT ACT.

The union territories and states have to implement the PCPNDT (Prohibition of Sex Selection) (Six Months Training) Rules, 2014 considering that the above rules prescribed under it intended to achieve the objective and purposes of the act.

These training rules got made in the exercise of the power conferred by parliament.

The apex court found that parliament has unquestionable power and competence to enact such a law. The central government must pass such a law to qualify persons employed in genetic counselling centres, genetic laboratories, and genetic clinics.

The legislature’s power cannot get checked for exercising the power of judicial review for a law enacted by a competent legislature.

And the directions laid in voluntary health association of Punjab v. union of India (2016) 10, SCC 625 was directed to be strictly enforced by all states and union territories.

Federation of Obstetric and Gynecological Societies of India (FOGSI), v. Union of India

In the case of FOGSI V. Union of India 2019 SCC 650, the apex court, while refusing to strike down section 23 of the PCPNDT Act, states that “dilution of the provisions of the Act or the Rules would only defeat the purpose of the Act to prevent female foeticide and relegate the right to life of the girl child under Article 21 of the Constitution, to a mere formality.”

Further, the apex court held that “Non-maintenance of the record is a springboard for the commission of the offence of foeticide and not just a clerical error.”

Such non-maintenance amounts to a violation of provisions of sections 5 and 6 of this act under proviso 4(3) of the PCPNDT act, 1994. It attracts cancellation or suspension of registration under section 20 of the act.

Conclusion

The pre-conception and pre-natal diagnostic techniques act, 1994 has the most common objectives to keep a check on female foeticide and prevent it from happening. Its efficacy is very much evident after its enactment.

After the PCPNDT act sex ratio increased and is reported as 108.18 males per 100 females or 947 females per 1000 males and rising at the rate of 0.19%(approx) every year, which is a positive sign

Although in rural parts of India, people lack awareness yet and are not aware of the offence of female foeticide against which the government has launched many schemes to prevent pre-natal sex determination and welfare of girl child. So, that people in rural India stop these practices.

One such scheme is “Mukhbir Yojna.” There is an incentive of 2 lakh to a person who informs the government department of any medical practitioner or any such medical staff involved in the practice of sex determination or female foeticide.