The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994

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Offences Against Children

under

The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994


Background

The laws of India do not permit abortion.  The Medical Termination of Pregnancy Act, 1971 (MTP) Act, which prohibits abortion, was enacted with a view towards containing the size of the family.  However, in some cases the desire for a small family may have outweighed the desire for a child of a specific gender, leading to abortions where the sex of the foetus was different from that desired by the family.  The MTP Act stipulated that an abortion may lawfully be done in qualified circumstances.  But the unscrupulous connived to misuse the law to have abortions conducted for the purpose of sex selection.

 

Later, innovative technologies made sex selection easier, and without the regulations to control the use of such technologies, these technologies began to be misused for sex-selective abortions.  These actions necessitated enactment of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT) in 1994.  This act was amended in 2002 in an effort to close loopholes contained in the original act.

PNDT Act

The PNDT Act of 1994, later amended in 2002, was enacted with the objective as stated in the preamble;

…to provide for the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female feticide and for matters connected therewith or incidental thereto. 

Thus, the PNDT Act prohibits the use of all technologies for the purpose of sex selection, which would also include the new chromosome separation techniques.

With the blanket prohibition contained in sections 3, 4 and 5 of the PNDT Act, there is effectively a ban on sex selection in India.  It is not possible to use pre-natal diagnostic techniques to abort foetuses whose sex and family history indicate a high risk for certain sex-linked diseases, or to choose a foetus whose sex is less susceptible to certain sex-linked diseases.  This blanket prohibition may appear to be a contradiction to the provisions of the MTP Act, which permits the abortion of a foetus that is at a risk of being born with serious physical or mental disabilities.  While it is legally permissible to abort a foetus at risk of serious physical or mental disabilities, it is not permissible to select a foetus of a sex which is less likely to suffer from a sex-linked disease. 

The PNDT Act primarily provides for the following:

1.     Prohibition of sex selection, before and after conception.

2.     Regulation of prenatal diagnostic techniques (e.g. Amniocentesis and ultrasonography) for the detection of genetic abnormalities, by restricting their use to registered institutions.  The Act allows the use of these techniques only at a registered place, for a specified purpose, and by a qualified person who is registered for the purpose.

3.     Prevention of the misuse of such techniques for sex selection, before or after conception.

4.     Prohibition of the advertisement of any techniques used for sex selection as well as those used for sex determination.

5.     Prohibition on the sale of ultrasound machines to persons not registered under this Act.

6.     Punishment for violations of the Act.  Violations carry a five-year jail term and a fine of approximately US $200-$1,000.  All offenses are cognizable when police may arrest without a warrant.  They are also non-bailable and non-compoundable.

Conclusion

Indian laws do not, under any circumstance, allow sex determination tests to be undertaken with the intent to terminate the life of a foetus developing in the mother’s womb, unless there are other absolute indications for termination of the pregnancy as specified in the MTP Act of 1971.  Any act causing the termination of the pregnancy of a normal foetus would amount to feticide, and in addition to rendering the physician criminal liable, is considered professional misconduct on his part, leading to his penal erasure. 


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