Delhi: Twenty-four years after the law banning prenatal sex determination was implemented, the country’s largest body of doctors, the Indian Medical Association (IMA), has sought for it to be repealed.
Sex-selective abortions remain one of the biggest scourges that currently plague India, leading to a skewed male-female demographic despite several well-publicized efforts to improve the sex ratio, women's health and mortality. Sex selective abortions have led to massive variations in sex ratios, found a global study published in the journal Proceedings of the National Academy of Sciences with 10.6 missing million females in India alone.
The BJP government has emphasised on 'Beti Bachao Beti Padhao' as a national campaign to improve the condition of the girl child. Its results, a top official of the health ministry said, “have varied from state to state and there is a long way to go”.
The Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994 (PCPNDT) was enacted with a view to curb sex-selective abortions and female foeticide. While questioning the Act’s effectiveness, IMA president and TMC MP Shantanu Sen described it as a "black law" that has "miserably failed in achieving its objectives in the 24 years of its dubious existence" and that it was an instrument leading to endless "harassment" to obstetricians and radiologists.
'Archaic and Ineffective'
Apart from banning sex-selective abortions, the Act prohibits pre-natal ultrasound testing for sex-selective purposes. Only medical institutions that are registered under the Act have the license to legally own ultrasound, imaging or scanning machines. Strict records need to be maintained and diagnostic techniques can only be conducted on a pregnant person where conditions stipulated under the Act are met.
Dr RV Asokan, Secretary General of IMA, said that these “archaic provisions” were a major problem. "Even clerical errors or an accident in paperwork can cost a medical practitioner their license", adding that hundreds of obstetricians and technicians have been unduly harassed because of the Act. He said that at least six doctors had been jailed for a year in Maharashtra after they were arrested for undue errors.
"Female foeticie is a social problem, not a medical one. Isolating doctors and putting the entire onus of preventing sex-selective abortion on medical professionals and ultrasound machines is simply unfair" Dr Asokan told News18.
In 2015, the IMA protesed the Act and filed a petition demanding its repeal. It was reiterated in 2017, in the face of a series of assaults on doctors and most recently, a PIL filed by the Federation of Obstetrics and Gynecological Societies of India (FOGSI) was quashed in the Supreme Court last Friday.
“The law no longer works,” said Asokan, adding that there had been no “significant change in sex-ratio in favour of girl children at a national level since the Act came into effect.”
Are machines accountable?
Laws need to keep up with developments in technology, said Dr Anant Bhan, researcher, Bioethics and Global Health and pointed out two key issues relevant to the Act: low conviction rates and potential benefits of non-obstetric use of the test. He expressed support for a relook at aspects of the law, but certainly not repealing it as demanded by IMA.
"Technology has taken great strides in the last two decades. “Several non-obstetric diagnostic techniques could effectively use ultrasound or imaging, but are currently difficult to implement due to the strict requirements under the PCPNDT Act," he said, adding that practitioners often complained of a “license raj” with regards to the requirements under the law. Amending the law to provide more leeway for non-obstetric innovations that could potentially benefit the health of several patients. He added that a lot of innovation in ultrasound technology had remained impending as the Act made ultrasound machines theoretically complicit in sex determination.
In the debate between social solutions and medical solutions, Bhan pointed out that the low conviction rate suggested that a review was due. "I don't agree that the Act did not bring any change in the rate of sex-selective abortions…while the sex ratio has continued to remain dismal, the Act probably helped reduce the alarming rate of fall in the sex ratio," Bhan said. "Additionally, it also brought an awareness among people that testing for sex is wrong and punishable by law."
As per records produced by the Supreme Court in its verdict against FOGSI, 586 convictions have taken place under the PCPNDT Act and 138 medical licenses have been suspended up till June 2018. The maximum convictions came from Rajasthan (149) followed by Tamil Nadu (139) followed by Maharashtra (99) and Haryana (85). the highest number of machine seizures took place in Haryana.
With improper implementation, lax security and the growth of ‘gangs’ that include doctors and medical professions, Savita, General Secretary of All India Democratic Women's Association (AIDWA), Haryana, opined that instead of a repeal, state governments and medical fraternity should make efforts to make it even more stringent. “After a spike in female foeticide, we found out in 2007 that the Act was not even notified Haryana,” Savita told News18. "But once implemented from 2011 onward, numbers have shown improvement."
Arguing for the need to tailor the program as per local needs, she pointed out that caste composition was a key variable that had to be taken into account and that the incidence of selective abortion was higher in upper castes of Haryana than the rest. “Affluence and access are very important. Poor people cannot afford sex determination tests and an abortion usually requires more than one”.
In case of the PCPNDT Act, the Beti Bachao Beti Padhao movement had remained largely underwhelming, Savita argued with the scheme not ensuring the implementation of the Act. She pointed out that with diverse caste, gender and social equations at play in various states of India could also have been a reason why implementation of laws against female foeticide were troublesome as preferring sons to daughters was a socially rife issue.
"We see so many women coming in after having one ortwo daughters, they want to check the sex so that they can avoid another girl. These women are under immense pressure from their families," Savita said adding, "Apart from empowering the Act, much is needed to be done in the area of gender rights in general in states like Haryana where a low sex ratio is indicative of deeper social disparities".
Sabu Mathew George, an anti-female foeticide activist and the original petitioner in the implementation of the Act countered,"Only three states, Haryana, Rajasthan and Maharashtra where the Act was properly implemented. These three states have shown significant increase in male-female ratio. How can the IMA say that numbers have not improved?" George added that it was "criminal" of the IMA, a body of doctors, to try and undo the development achieved by the Act because of personal benefit.
"18 lakh medical crimes are committed every year by medical professionals. The national sex ratio is dismal. How can they keep insisting on changing the law?" George asked, while arguing that the law needs to be looked at through the prism of protecting the girl child and not corporates.
George also scoffed at the "alternative methods" that IMA's Asokan suggested. One of them, proposed initially by Woman and Child Minister Maneka Gandhi, was to track down pregnancies of women bearing girl babies to ensure they end up safe and alive. George dismissed the idea as "impractical" and one that added unnecessary pressure on the woman conceiving the baby.
Scoffing at the idea that 'clerical errors' were reason enough to repeal the Act, Dr Narendra Gupta from Prayas, a Delhi-based NGO working on human rights issues, said that if was imperative for doctors to avoid these errors. "It's a very simple form. Yet they manage to get the wrong address, or the wrong name…How is it possible unless someone deliberately wants to the transaction to go un-recorded?"
'A Step Back'
Centre for Social Research director Ranjana Kumari who has been working on the problem of female foeticide in Haryana for several years said that if approved, repealing the law would set the country back years in terms of even the slight development that has been achieved so far. CSR was made the nodal agency for the implementation of the 'Beti Bachao Beti Padhao' in five districts of Haryana in 2015.
'After years of social campaigning we have finally come to a place where concerted efforts are being made to improve women's rights in the country. Some states are showing improvement," Kumari said. "At this juncture, it is totally unprofessional of the IMA to call for a repeal and then reverse the situation", Kumari said, condemning the IMA's statement.
(Data provided by Centre for Social Research)
Like George, Kumari alleged that the the call to repeal the Act made it seem that the body was attempting to protect erring doctors. “It’s a big business,” Kumari said, adding, “Initially, it was doctors who imposed these sex determination tests, which were essentially introduced as a measure for population control and many swore by its benefits. How else do you think they became so popular?”
Dr Bhan added that the fact that couples are choosing alternative methods was evidence that the Act was working with regards to averting misuse of obstetric ultrasound. For instance, studies conducted in Haryana show the prevalence of sex-selective drugs (SSD) that pregnant women consume in order to increase chances of getting a male son. Moreover, of the 360 raids (a provision within the Act) conducted in 2015-16 in Haryana, 36 resulted in discovery of those selling SSDs and 2 convictions. SSDs have been associated to stillbirths and birth defects in foetuses of mothers.