PCPNDT Act: The Pre-conception and Pre-natal Diagnostic Techniques Act

In this article, we shall study one important social legislation enacted for saving girl childs, namely, the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, (PCPNDT Act) 1994.

Female Foeticide:

Female foeticide is the procedure of abortion to terminate a female foetus from the womb of the mother before taking birth after the sex recognition tests like an ultrasound scan. The census figures not only indicates the imbalance in the sex ratio, but it also indicates, the casual approach of society to all women. It is the cruellest on the part of society not to allow a female child to be born.

Major Reasons for Female Foeticide:

Patrilineal line of succession
Dowry system, violence against women
Low status of women
Preference for son due to financial security
Small family norm
Religious and social taboos
Misuse of diagnostic techniques.

Impact of Female Foeticide:

The sex ratio denotes the ratio of females to males in a specific region. As per the decennial Indian census, the Sex Ratio of India is 107.48. It means 107.48 males per 100 females in 2019.
It increases number of crimes against women

The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994:

Objects of PCPNDT Act:

To prevent misuse of Pre-conception and Pre-natal Diagnostic Techniques for sex determination leading to female feticide and arrest the declining sex ratio in India.
To ensure the implementation of all promotional schemes for girl children at the district level.
To Monitor and evaluate the implementation of the PCPNDT Act through community participation.
To ensure accountability of implementing agencies through monitoring implementation of the Act through community participation.
To track pregnancies, MTPs, and birth registration with the help of Anganwadi workers, ASHAs.
To identify violators of the Act through conducting detailed audits of form ‘F’ filled in for the pregnant women in the clinics.
To develop a national, state, and district annual Plan.

Salient Features of the PCPNDT Act:

This Act No. 57 of 1994 was enacted by the Parliament of India, It assented on 20 September 1994 and it commenced on 1st January 1996.It is applicable to the whole of India.
The Act provides for the prohibition of sex selection, before or after conception.
It regulates the use of pre-natal diagnostic techniques, like ultrasound and amniocentesis by allowing them their use only to detect: Genetic abnormalities, metabolic disorders, chromosomal abnormalities, certain congenital malformations, haemoglobinopathies and sex-linked disorders.
No laboratory or centre or clinic will conduct any test including ultrasonography for the purpose of determining the sex of the foetus.
No person, including the one who is conducting the procedure as per the law, will communicate the sex of the foetus to the pregnant woman or her relatives by words, signs or any other method.
Any person who puts an advertisement for pre-natal and pre-conception sex determination facilities in the form of a notice, circular, label, wrapper or any document, or advertises through the interior or other media in electronic or print form or engages in any visible representation made by means of hoarding, wall painting, signal, light, sound, smoke or gas, can be imprisoned for up to three years and fined Rs. 10,000.

Important Definitions of the Act:

Conceptus:

According to Section 2(ba) of the PCPNDT Act ”conceptus” means any product of conception at any stage of development from fertilization until birth including extra-embryonic membranes as well as the embryo or foetus.

Embryo:

According to Section 2(bb) of the PCPNDT Act, “embryo” means a developing human organism after fertilization till the end of eight weeks (fifty-six days).

Foetus:

According to Section 2(bc) of the PCPNDT Act “foetus” means a human organism during the period of its development beginning on the fifty-seventh day following fertilization or creation (excluding any time in which its development has been suspended) and ending at the birth.

Generic Counselling Centre:

According to Section 2(c) of the PCPNDT Act “Genetic Counseling Centre” means an institute, hospital, nursing home or any place, by whatever name called, which provides for genetic counselling to patients.

Genetic Clinic:

According to Section 2(d) of the PCPNDT Act “Genetic Clinic” means a clinic, institute, hospital, nursing home or any place, by whatever name called, which is used for conducting pre-natal diagnostic procedures.

The explanation attached to the definition lays down that for the purposes of this clause, “Genetic Clinic’ includes a vehicle, where ultrasound machine or imaging machine or scanner or other equipment capable of determining the sex of the foetus or portable equipment which has the potential for detection of sex during pregnancy or selection of sex before conception, is used.

Genetic Laboratory:

According to Section 2(e) of the PCPNDT Act “Genetic Laboratory” means a laboratory and includes a place where facilities are provided for conducting analysis or tests of samples received from Genetic Clinic for a pre-natal diagnostic test.

The explanation attached to the definition lays down that for the purposes of this clause, “Genetic Laboratory’ includes a place where ultrasound machine or imaging machine or scanner or other equipment capable of determining the sex of the foetus or portable equipment which has the potential for detection of sex during pregnancy or selection of sex before conception, is used.

Gynaecologist:

According to Section 2(f) of the PCPNDT Act, “Gynaecologist” means a person who possesses a post- graduate qualification in gynaecology and obstetrics.

Medical Geneticist:

According to Section 2(g) of the PCPNDT Act, “Medical geneticist” includes a person who possesses a degree or diploma in genetic science in the fields of sex selection and pre-natal diagnostic techniques or has experience of not less than two years in such field after obtaining— (i) any one of the medical qualifications recognised under the Indian Medical Council Act, 1956 (102 of 1956); or (ii) a post-graduate degree in biological sciences.

Pediatrician:

According to Section 2(h) of the PCPNDT Act, “Pediatrician” means a person who possesses a post-graduate qualification in pediatrics.

Pre-natal Diagnostic Procedures:

According to Section 2(i) of the PCPNDT Act “pre-natal diagnostic procedures” means all gynaecological or obstetrical or medical procedures such as ultrasonography, foetoscopy, taking or removing samples of amniotic fluid, chorionic villi, blood or any other tissue or fluid of a man, or of a woman for being sent to a Genetic Laboratory or Genetic Clinic for conducting any type of analysis or pre-natal diagnostic tests for selection of sex before or after conception;

Pre-natal Diagnostic Test:

According to Section 2(k) of the PCPNDT Act “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.

According to Section 2(j) of the PCPNDT Act “pre-natal diagnostic techniques” includes all pre-natal diagnostic procedures and pre-natal diagnostic tests.

Registered Medical Practitioner:

According to Section 2(m) of the PCPNDT Act “registered medical practitioner” means a medical practitioner who possesses any recognised PNDT Act, 1994 & Amendments medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956, (102 of 1956.) and whose name has been entered in a State Medical Register.

Sex Selection:

According to Section 2(o) of the PCPNDT Act, “sex selection” includes any procedure, technique, test or administration or prescription or provision of anything for the purpose of ensuring or increasing the probability that an embryo will be of a particular sex.

Sonologist or Imaging Specialist:

According to Section 2(p) of the PCPNDT Act “sonologist or imaging specialist” means a person who possesses any one of the medical qualifications recognized under the Indian Medical Council Act, 1956 or who possesses a postgraduate qualification in ultrasonography or imaging techniques or radiology.

Situations that Allow the Conduct of Pre-natal Diagnostic Techniques:

Pre-natal diagnostic techniques shall be made use of only for the detection of the following:

Chromosomal Abnormalities
Genetic Metabolic Diseases
Haemoglobinopathies
Sex-Linked Genetic Diseases
Congenital Anomalies
Any Other Abnormalities or diseases as may be specified by the Central Supervisory Board

Regulation of Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics:

According to Section 3 of the Act,

no Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic unless registered under this Act, shall conduct or associate with, or help in, conducting activities relating to prenatal diagnostic techniques;
no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall employ or cause to be employed or take services of any person, whether on honorary basis or on payment who does not possess qualifications as may be prescribed;
no medical geneticist, gynaecologist, paediatrician, registered medical practitioner or any other person shall conduct or cause to be conducted or aid in conducting by himself or through any other person, any pre-natal diagnostic techniques at a place other than a place registered under this Act.

Prohibition of Sex Selection:

According to Section 3 of the Act, no person, including a specialist or a team of specialists in the field of infertility, shall conduct or cause to be conducted or aid in conducting by himself or by any other person, sex selection on a woman or a man or on both or on any tissue, embryo, conceptus, fluid or gametes derived from either or both of them.

Prohibition on Sale of Ultrasound Machines, etc., to Persons, Laboratories, Clinics, etc. Not Registered Under the Act:

According to Section 3B of the Act, no person shall sell any ultrasound machine or imaging machine or scanner or any other equipment capable of detecting sex of foetus to any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other person not registered under the Act.

Regulation and Pre-conditions to Use and Conduct Pre-natal Diagnostic Techniques:

Following conditions are prescribed in Chapter III Section 4 of the Act

No place including a registered Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall be used or caused to be used by any person for conducting pre-natal diagnostic techniques except for the purposes specified in clause (2) and after satisfying any of the conditions specified in clause (3);

2. No pre-natal diagnostic techniques shall be conducted except for the purposes of detection of any of the following abnormalities, namely:—

chromosomal abnormalities;
genetic metabolic diseases;
haemoglobinopathies;
sex-linked genetic diseases;
congenital anomalies;
any other abnormalities or diseases as may be specified by the Central Supervisory Board;

3. No pre-natal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied for reasons to be recorded in writing that any of the following conditions are fulfilled, namely:

age of the pregnant woman is above thirty-five years;
the pregnant woman has undergone of two or more spontaneous abortions or foetal loss;
the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals;
the pregnant woman or her spouse has a family history of mental retardation or physical deformities such as, spasticity or any other genetic disease;
any other condition as may be specified by the Central Supervisory Board;

4. No person including a relative or husband of the pregnant woman shall seek or encourage the conduct of any pre-natal diagnostic techniques on her except for the purposes specified in clause (2).

5.No person including a relative or husband of a woman shall seek or encourage the conduct of any sex-selection technique on her or him or both.

Written consent of Pregnant Woman and Prohibition of Communicating the Sex of Foetus:

According to Section 5 of the Act,

1. No person referred to in clause (2) of section 3 shall conduct the pre-natal diagnostic procedures unless— PNDT Act, 1994 & Amendments

(a) he has explained all known side and after effects of such procedures to the pregnant woman concerned;

(b) he has obtained in the prescribed form her written consent to undergo such procedures in the language which she understands; and

2. No person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs or in any other manner.

Determination of Sex Prohibited:

According to Section 6 of the Act,

(a) no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall conduct or cause to be conducted in its Centre, Laboratory or Clinic, pre-natal diagnostic techniques including ultrasonography, for the purpose of determining the sex of a foetus;

(b) no person shall conduct or cause to be conducted any pre-natal diagnostic techniques including ultrasonography for the purpose of determining the sex of a foetus;

Central Supervisory Board:

According to Section 7 of the Act, the Central Government shall constitute a Board to be known as the Central Supervisory Board to exercise the powers and perform the functions conferred on the Board under this Act.

Functions and Powers of Central Supervisory Board:

According to Section 16 of the Act, the followings are the functions of the Central Supervisory Board:

to advise the Central Government on policy matters relating to use of pre-natal diagnostic techniques, sex selection techniques and against their misuse;
to review and monitor implementation of the Act and rules made thereunder and recommend to the Central Government changes in the said Act and rules;
to create public awareness against the practice of pre-conception sex selection and prenatal determination of sex of foetus leading to female foeticide;
to lay down code of conduct to be observed by persons working at Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics;
to oversee the performance of various bodies constituted under the Act and take appropriate steps to ensure its proper and effective implementation;
any other functions as may be prescribed under the Act.

State Supervisory Board and Union Territory Supervisory Board:

According to Section 16A of the Act, each State and Union territory having Legislature shall constitute a Board to be known as the State Supervisory Board or the Union territory Supervisory Board, as the case may be, to exercise the powers and perform the functions conferred on the Board under this Act.

Functions of State Supervisory Board and Union Territory Supervisory Board:

According to Section 16A of the Act, the followings are the functions of the State Supervisory Board and Union Territory Supervisory Board:

to create public awareness against the practice of pre-conception sex selection and pre-natal determination of sex of foetus leading to female foeticide in the State;
to review the activities of the Appropriate Authorities functioning in the State and recommend appropriate action against them;
to monitor the implementation of provisions of the Act and the rules and make suitable recommendations relating thereto, to the Board;
send such consolidated reports as may be prescribed in respect of the various activities undertaken in the State under the Act to the Board and the Central Government; and
any other functions as may be prescribed under the Act.

Registration and Suspension of Genetic Counselling Centres, Genetic Laboratories or Genetic Clinics:

Registration of Genetic Counselling Centres, Genetic Laboratories or Genetic Clinics:

According to Section 18 of the Act:

No person shall open any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, including clinic, laboratory or centre having ultrasound or imaging machine or scanner or any other technology capable of undertaking determination of sex of the foetus and sex selection, or render services to any of them, after the commencement of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 unless such centre, laboratory or clinic is duly registered under the Act.
Every application for registration under sub-section (1), shall be made to the Appropriate Authority in such form and in such manner and shall be accompanied by such fees as may be prescribed.
Every Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic engaged, either partly or exclusively, in counselling or conducting pre-natal diagnostic techniques for any of the purposes mentioned in section 4, immediately before the commencement of this Act, shall apply for registration within sixty days from the date of such commencement.
Subject to the provisions of section 6, every Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic engaged in counselling or conducting pre-natal diagnostic techniques shall cease to conduct any such counselling or technique on the expiry of six months from the date of commencement of this Act unless such Centre, Laboratory or Clinic has applied for registration and is so registered separately or jointly or till such application is disposed of, whichever is earlier.
No Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic shall be registered under this Act unless the Appropriate Authority is satisfied that such Centre, Laboratory or Clinic is in a position to provide such facilities, maintain such equipment and standards as may be prescribed.

Certificate of Registration:

According to Section 19 of the Act:

The Appropriate Authority shall, after holding an inquiry and after satisfying itself that the applicant has complied with all the requirements of this Act and the Rules made thereunder and having regard to the advice of the Advisory Committee in this behalf, grant a certificate of registration in the prescribed form jointly or separately to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, as the case may be.
If, after the inquiry and after giving an opportunity of being heard to the applicant and having regard to the advice of the Advisory Committee, the Appropriate Authority is satisfied that the applicant has not complied with the requirements of this Act or the rules, it shall, for reasons to be recorded in writing, reject the application for registration.
Every certificate of registration shall be renewed in such manner and after such period and on payment of such fees as may be prescribed.
The certificate of registration shall be displayed by the registered Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic in a conspicuous place at its place of business.

Cancellation or Suspension of Registration:

According to Section 20 of the Act:

The Appropriate Authority may suo moto, or on the complaint, issue a notice to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic to show cause why its registration should not be suspended or cancelled for the reasons mentioned in the notice.
If, after giving a reasonable opportunity of being heard to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic and having regard to the advice of the Advisory Committee, the Appropriate Authority is satisfied that there has been a breach of the provisions of this Act or the rules, it may, without prejudice to any criminal action that it may take against such Centre, Laboratory or Clinic, suspend its registration for such period as it may think fit or cancel its registration, as the case may be.
Notwithstanding anything contained in sub-sections (1) and (2), if the Appropriate Authority is, of the opinion that it is necessary or expedient so to do in the public interest, it may, for reasons to be recorded in writing, suspend the registration of any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic without issuing any such notice referred to in sub-section (1).

Appeal Against Suspension:

According to Section 21 of the Act:

The Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic may, within thirty days from the date of receipt of the order of suspension or cancellation of registration passed by the Appropriate Authority under section 20, prefer an appeal against such order to—

the Central Government, where the appeal is against the order of the Central Appropriate Authority; and
the State Government, where the appeal is against the order of the State Appropriate Authority, in the prescribed manner.

Prohibition of advertisement relating to pre-natal determination of sex and punishment for contravention:

According to Section 22 of the Act:

No person, organization, Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, including clinic, laboratory or centre having ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus or sex selection shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any form, including internet, regarding facilities of pre-natal determination of sex or sex selection before conception available at such centre, laboratory, clinic or at any other place.
No person or organization including Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement in any manner regarding pre-natal determination or preconception selection of sex by any means whatsoever, scientific or otherwise.
Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees.

Explanation.—For the purposes of this section, “advertisement” includes any notice, circular, label, wrapper or any other document including advertisement through internet or any other media in electronic or print form and also includes any visible representation made by means of any hoarding, wall-painting, signal, light, sound, smoke or gas.

Offences, Penalties and Cognizance:

Offences and Penalties:

According to Section 23 of the Act:

Any medical geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act or rules made thereunder shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees.
The name of the registered medical practitioner shall be reported by the Appropriate Authority to the State Medical Council concerned for taking necessary action including suspension of the registration if the charges are framed by the court and till the case is disposed of and on conviction for removal of his name from the register of the Council for a period of five years for the first offence and permanently for the subsequent offence.
Any person who seeks the aid of a Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or ultrasound clinic or imaging clinic or of a medical geneticist, gynaecologist, sonologist or imaging specialist or registered medical practitioner or any other person for sex selection or for conducting pre- natal diagnostic techniques on any pregnant women for the purposes other than those specified in sub-section (2) of section 4, he shall, be punishable with imprisonment for a term which may extend to three years and with fine which may extend to fifty thousand rupees for the first offence and for any subsequent offence with imprisonment which may extend to five years and with fine which may extend to one lakh rupees.
For the removal of doubts, it is hereby provided, that the provisions of sub-section (3) shall not apply to the woman who was compelled to undergo such diagnostic techniques or such selection.

Cognizance of Offence:

According to Section 27 of the Act, every offence under this Act shall be cognizable, non-bailable and non-compoundable.

Who Can Take Cognizance:

According to Section 28 of the Act:

No court shall take cognizance of an offence under this Act except on a complaint made by— (a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or (b) a person who has given notice of not less than fifteen days in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the court.

Explanation.—For the purpose of this clause, “person” includes a social organisation.

No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
Where a complaint has been made under clause (b) of subsection (1), the court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person.

Amendment in 2003

Amendment of the act mainly covered bringing the technique of pre-conception sex selection within the ambit of the act
Bringing ultrasound within its ambit
Empowering the central supervisory board, the constitution of the state-level supervisory board
Provision for more stringent punishments
Empowering appropriate authorities with the power of civil court for search, seizure, and sealing the machines and equipments of the violators
Regulating the sale of the ultrasound machines only to registered bodies

Conclusion:

For proper implementation of the Act one should not lose focus of the object of the act.

Object of the act is prohibition of sex determination leading to female feticide & not strict compliance of record keeping.

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