WUNRN
INDIA - CHALLENGES IN IMPLEMENTING
THE BAN ON SEX SELECTION
By Sandhya Srinivasan
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.
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.
http://infochangeindia.org/2006031077/Women/Analysis/Challenges-in-implementing-the-ban-on-sex-selection.html - FULL ARTICLE
_____________________________________________________________________
UNRISD - United Nations Institute for Social Development
http://www.unrisd.org/80256B3C005BC203/(httpPeople)/D4FEE2A495AD9D2DC1256FDA005E4464?OpenDocument
Sandhya Srinivasan is a
freelance journalist and consultant. She holds Master's degrees in public
health and in sociology, and writes on health and development issues for the Inter
Press Service, among other publications and Web sites.
She
was named Panos Reproductive Health Media Fellow in 1998 for the subject
“Infertility and Health Services in India”, and in 2002 she was awarded an
Ashoka Fellowship to support her work in medical ethics.
She is executive editor of the Indian Journal of Medical Ethics, the
journal of the Forum for Medical Ethics Society, where she has focused on
developing a platform for discussion between health professionals and other
sections of society. She is also a member of two institutional review boards,
and on the editorial board of Developing World Bioethics.
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