"IT'S
(STILL) A BOY. . .": MAKING THE PRE-NATAL DIAGNOSTIC TECHNIQUES ACT AN
EFFECTIVE WEAPON IN INDIA'S STRUGGLE TO STAMP OUT FEMALE FETICIDE
INTRODUCTION
"AgIe Janam Mohe Bitiya Na Dije, Narak Dije Chahe Dar ..." goes the chilling refrain of a folk song from Uttar Pradesh, a northern state in India.1 The translation means "Next birth don't give me a daughter, Give me Hell instead."2 For centuries, India's societal, cultural, religious, and financial pressures have dramatically favored the birth of males over females. As a result, India is among the nations that lead the world in female infanticide and feticide, the systematic extermination of female babies and fetuses, respectively.3 In recent years this heinous act has been carried out with the aid of numerous pre-natal s*x determination technologies.
In the late 1980s and early 1990s, lengthy campaigns were spearheaded against s*x-determination in India, and activists demanded that the government offer a legislative solution. In response, the Indian central government enacted the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act ("Act") in 1994.4 The Act prohibits s*x-determination after conception through pre-natal diagnostic techniques5 such as ultrasonography and amniocentesis.6
The Act has proved largely ineffectuaPand critics point out a loophole in the Act, which leaves open the legality of newly developing s*x-determination technologies.8 Indeed, the Act fails to address pre-conception s*x-selection. Many Indian fertility clinics now skirt the law by offering a controversial procedure known as XY separation.9 The procedure takes advantage of breakthroughs in technology that permit the separation of X and Y chromosomebearing sperm, and then use the Y-chromosome-bearing sperm to fertilize an egg, thereby ensuring the conception of a male embryo.10 In effect, s*x selection before conception falls into a legal gray area.11
In May 2001 the Indian Supreme Court, ruling on a writ petition, admonished the central and state governments for non-implementation of the Act, and suggested that it be amended to keep pace with technology.12 As of this writing, the Indian government is considering amending the Act to more specifically address loop-holes and laxity, including a proposed ban on the XY separation procedure.13
The purpose of this Note is threefold: first, it will critically examine professed weaknesses in the Act and analyze why they continue to frustrate the Act's effectiveness; second, it will suggest several general recommendations and remedial measures that the Indian government should take in order to make the Act an effective instrument;14and, finally, the Note will address the issue of whether the Act should be amended to include pre-conception s*x selection technologies.
II. DISCUSSION
A. The Problem: Female Feticide
1. Historical Roots and India's Societal Climate
According to many cultural historians, Indian society has permitted the systematic extermination of female babies since time immemorial. India has traditionally been a patriarchal society, a concept embedded in many of its historical, cultural practices.15 Property rights were passed down hereditarily from father to son.16 The marriage of a daughter often involved the paying of dowry to a bridegroom's family.17 A married woman was considered part of her in-laws' family and no longer part of her own.18 A son was expected to care for his parents in their old age, carry on the family name and caste, and to bring in dowry when he married.19 Because most of the common or indigenous Indian religious traditions, such as Hinduism, Jainism, Sikhism, and Islam, upheld this patriarchy, these religions often reinforced a strong preference for sons.20
Up until recently, Indian law, grounded largely in Hindu and Islamic principles, seemed to reflect the traditional bias against daughters.21 For instance, Indian laws governing inheritance rights often served to reinforce the advantaged status for males. Islamic rules of succession held that a female heir take half the share of a male heir.22 Under Hindu laws of inheritance, the son of a deceased father became the joint owner of property his father owned, taking an equal share with the daughter and widow of the deceased.23 As the value was placed on sons, daughters became the "expendable offspring."24
In earlier years, the practice was one of female infanticide.25 Because there was no reliable method of predicting the unborn child's gender, a woman carried the baby to term. The birth of a female was often met with sorrow and shame;26 many female babies were poisoned,27 suffocated,28 or murdered in equally brutal ways.29 Perhaps ironically, this task was usually relegated to female relatives or a mid-wife during the first seven days after the birth of a daughter.30
While female infanticide has long been in existence in poorer rural areas, the 1960s saw a remarkable upsurge of female infanticide among the more educated middle class.31 With newfound prosperity in industrialization and business came the attachment of new importance to the patriarchal preference for sons to cany on the family name or business. In addition, affluence often brought renewed interest in dowry.32
With the development of pre-natal diagnostic technology, such as amniocentesis, came the ability to determine, with some degree of reliability, the gender of the fetus.33 These technological advances heralded the practice of female feticide. Parents seeking to ensure the birth of a son saw feticide as an easier, more humane, and more sophisticated alternative to infanticide.34 The result of gender bias and technological development is thus a dramatic and noticeable "skew" in India's s*x ratio.
2. India's Legal Climate (pre-PNDT Act)
The earliest efforts to eradicate female infanticide were made in the nineteenth century under British colonial rule.35 The problem of female feticide is relatively new. Under the Indian Penal Code (IPC), the law prohibited abortion or forced miscarriage for any reason save a "good faith effort to save the life of the woman."36 Enforcement of the stringent IPC was largely responsible for driving the abortion trade underground. Social outcry and concern about India's booming population prompted a re-evaluation of the law.37 In 1972 legislators reformed the IPC by implementing the Medical Termination of Pregnancy Act (MTP Act).38 The MTP Act gave a great deal of discretion to medical practitioners to determine if grounds existed to justify abortion under broad health or humanitarian reasons. The introduction of diagnostic techniques - originally designed to detect genetic abnormalities - made it possible to predict the gender of the fetus. Thus, s*x selection began to emerge as a purportedly legitimate reason for abortion.39 "The requirement of a new law was therefore felt, to prevent the misuse of the MTP Act for s*x selective abortions."40
B. The Pre-natal Diagnostic Techniques Act (PNDT Act)
1. Legislative History
Sporadic campaigns protesting female feticide dotted the period of 1976 to 1985.41 However, the cause to oppose female feticide came to the limelight in 1982; ironically, the abortion of a male fetus triggered the movement.42 A high-ranking government official asked his wife to undergo a s*x determination test and when the testing showed a female they aborted the fetus.43 The diagnosis, however, was in error (as is fairly common with these procedures); the fetus had been a male.44 The bitter father, in an effort to discredit the hospital, went public.45 In the process, he inadvertently lifted the lid off of a very volatile "Pandora's box" of controversy and outrage.
In response, activists for women's rights, health groups, people's science groups, and legal action groups spearheaded a broad-based campaign in Bombay (Mumbai).46 By 1985, they formed a coalition called the Forum Against Sex Determination and Sex Pre-Selection to increase public awareness and lobby for legislation.47 The coalition was instrumental in pressuring the state government to pass the Maharashtra Regulation of Use of Pre-Natal Diagnostic Techniques Act in 1988.48 This was the first law of its kind passed in India, and is an important forerunner of the central government's PNDT Act.
Although the legislation passed in Maharashtra, the home of India's cosmopolitan center, Bombay, symbolized a major victory, the campaign sought to reach out to other states.49 Of particular interest was the notorious "Bermuda Triangle" of disappearing female birth rates, that is, the land-rich northern states of Harayana, Uttar Pradesh, and Punjab.50 Activists began to see that the need for "a comprehensive single central legislation . . . [was] of crucial importance."51 In 1994 the central government drafted the Pre-natal Diagnostic Techniques Act. Women's rights groups, the medical community, the religious right, and UNICEF met it with unanimous support.52 However, it could not become law until all state legislatures approved it. On January 1, 1996, the PNDT Act was officially implemented.53
Despite its official implementation in 1996, however, central and state governments have largely failed to enforce the PNDT Act.54 In 2001 the Centre for Enquiry Into Health and Allied Themes and other parties petitioned the Supreme Court of India to force government implementation.55 The May 4, 2001 decision upholds and reaffirms a commitment to the PNDT Act, offers directives to the government bodies for more effective implementation, and suggests that further directives may follow in the future.56
2. Scope
The preamble of the PNDT Act "provides that the object of the Act is to prevent the misuse of such techniques for the purpose of pre-natal s*x determination leading to female feticide and for matters connected thereto."57 Under the PNDT Act, all genetic counseling centers must be registered, and doctors are prohibited from revealing the s*x of fetuses.58 These clinics may only use pre-natal tests to detect genetic abnormality, and even these tests can only be performed on women who have had multiple miscarriages, have been exposed to radiation or drugs during pregnancy, or are over the age of thirty-five.59 The PNDT Act purports to prohibit any use of pre-natal diagnostic techniques for purposes of s*x determination.60 As such, it does not ban the instrumentality of pre-natal diagnostics but regulates their purposes.61 It also strictly prohibits any person conducting a pre-natal diagnostic procedure from communicating the gender of a child in any manner to the mother or any relative.62 Finally, it prohibits any advertisement in pursuance of s*x determination.63
Persons working in the clinics, as well as women and their families using the clinics, are liable for fines and imprisonment for violating the PNDT Act.64 The PNDT Act applies equally to the central and state governments of India.65 In addition, the PNDT Act provides for the formation of a Central Supervisory Board to oversee its progress.66
C. New Reproductive Technologies
1. Pre-Implantation Sex Selection
Although the Act regulates pre-natal s*x determination techniques, a major perceived flaw is its failure to address the legality of new reproductive technologies.67 These technologies can be divided into three categories: (1) so-called "natural" pre-fertilization techniques, left largely up to the individual woman or couple, absent medical intervention; (2) in vitro post-fertilization procedures; and (3) artificial insemination with sperm that has been separated prior to fertilization.68
It is quite likely that natural pre-fertilization techniques could be widely practiced in India, as they require little or no medical intervention and are the least expensive techniques available.69 Nonetheless, these techniques appear to be significantly less favored in India.70 Perhaps this apparent contradiction is best explained by the fact that these procedures require more personal effort, knowledge of the science of fertility, and is not nearly as reliable as the more high-tech methods.71 Examples include temperature and time monitoring, special diets, and chemical douches.72
A second, and decidedly more reliable method requires post-fertilization in vitro procedures.73 The process calls for multiple steps. First, medical professionals combine the sperm and egg in a petri dish to achieve fertilization.74 When the fertilized egg has divided into eight cells, the doctor tests it to determine its s*x.75 Only male embryos are then implanted in the woman's uterus.76 Although in vitro fertilization promises the most accurate results for ensuring male children, it is also the most expensive, invasive, and hazardous technique.77 While this technology has become commonplace in the Western world, it is rarely the technique of choice in India.78 XY chromosome separation, especially through the Ericsson method discussed below, remains India's favorite new s*x selection technology.79
2. XY Chromosome Separation
XY chromosome separation is a pre-fertilization technique, in which the doctor separates X-bearing (gynecogenic, or female producing) sperm from Y-bearing (androgenic, or male producing) sperm, by exploiting one or more of their differences.80 In India, the goal of such a procedure is to produce a semen sample with a high concentration of Y-bearing sperm, and then use this "enriched" semen, that is, semen in which the gender ratio has been purposely skewed to artificially inseminate the woman.81
As reproductive technology has developed, researchers have turned their attention to significant differences in X-bearing and Y-bearing sperm. In 1971, for instance, researchers discovered that because of a greater quantity of DNA in the X-bearing sperm, it is three percent larger than the Y-bearing sperm.82 Some s*x selection technologies exploit this difference in size and weight to isolate the male-creating sperm. Such technologies may employ the use of either centrifugation, in which the heavier gynecogenic sperm move from the center toward the wall of a rotating cylinder, often being destroyed in the process, or sedimentation, in which the heavier sperm sink further through a thick liquid.83 Researchers have also discovered that Y-bearing sperm swim more quickly than the X-bearing variety.84 Of the techniques developed to differentiate sperm by speed, the most successful of these techniques is the controversial Ericsson method.85
In 1973 Ronald J. Ericsson of Gametrics, Limited, developed what would become one of the world's most popular sperm separation technique.86 Ericsson's original aim was to produce male children.87 The patented Ericsson method involves accumulating a higher concentration of Y-bearing sperm at the bottom of a test tube, by filtering the sperm through three increasingly thicker layers of the protein "albumin" through which the male producing sperm swim faster.88 The doctor then uses the collected androgenic fluid to artificially inseminate the woman.89 Although the accuracy rate of the Ericsson method is somewhat contested, many Indian couples now use a combination of Ericsson's filtration technique and the centrifugation method to maximize certainty of having a male child.90
III. ANALYSIS
A. Weaknesses in the PNDT Act
1. Inadequate Purpose and Enforcement
The PNDT Act does not place a blanket ban on all
pre-natal diagnostic techniques. Rather, it merely states that these techniques
cannot be used for s*x-determination. The tests can be used for purposes of
detecting genetic abnormalities in the fetus. The PNDT Act "does not
question the use of pre-natal techniques ... it only relates to regulating the
motives of its use." In other words, the same techniques that would be
deemed illicit if they involved a doctor telling the expectant couple the
gender of the fetus can be performed legally under the PNDT Act for other
purposes. This renders enforcement of the rule nearly impossible. It encourages
doctors to do little more than fake their reports and covertly engage in s*x
determination. "The primary mechanism chosen for the purpose of preventing
. . . misuse under the circumstances is control over communication." This
hardly seems an effective restraint. Doctors and couples merely resort to
"wink wink, nod-nod" types of exchanges. The doctor may, for instance
simply announce the gender of the fetus to a staff member within earshot of the
couple. In fact, the PNDT Act prohibits those conducting diagnostic tests from
disclosing gender to the pregnant woman or her relatives but, "there is
nothing in the Act which . . . bars the communication of such information [to
be] passed on through friends to the woman's relatives!"
2. Ambiguity in Penalties
A Central Supervisory Board (CSB) has been created
to review the implementation of the PNDT Act, recommend any necessary changes
to the government, lay down codes of conduct for genetic professionals, and
create public awareness. Unfortunately, however, the PNDT Act is somewhat
silent as to what should be the scope of the CSB's power. Furthermore, the PNDT
Act itself provides scanty information about what penalties would apply either
to doctors performing s*x determination tests or to in-laws and family members
forcing women to seek them. The PNDT Act fails to specify minimum monetary
retribution or confinement standards." Although the PNDT Act does
proscribe a procedure by which a convicted doctor must be reported to state
medical councils, it fails to specify any time period within which such
reporting must take place. It is also ambiguous about those who contravene or
attempt to contravene the PNDT Act by assisting in s*x determination
techniques. These ambiguities raise serious questions as to the effectiveness
of the PNDT Act as a deterrent.
3. Punitive to Women
A crucial failing of the PNDT Act is that it
provides for punishing women who indulge in s*x determinations. Some critics of
the PNDT Act have declared this to be the "most offensive and misguided
feature of the law." This flaw in the PNDT Act reflects the erroneous
reasoning that it will serve to deter women from acquiescing to s*x
determination. Such reasoning ignores the strong empirical evidence that most
women in Indian society are forced to undergo these techniques under threat of
social stigma, abandonment, or even physical harm and death. To hold women
punishable is, in a sense, "double penalization." To threaten to
punish a woman for an activity that she was forced to undergo will not deter
her from the activity; it will merely deter her from reporting the activity.
4. Loophole: New Technologies
Arguably, the biggest weakness in the PNDT Act is
its failure to bring new reproductive technologies under its purview.10H because
the PNDT Act does not currently address the legality of s*x selection before conception;
these techniques are forced into a legal gray area. As these techniques become
more commonplace, they provide for an attractive way to skirt the law, thereby
frustrating the purposes of the PNDT Act. The new reproductive technologies are
unregulated and, as an alternative to the procedures prohibited by the PNDT
Act, are being abused. Activist Dolly Arora explains why this particular
weakness warrants special attention:
The lack of concern for regulating the future
technologies which may contribute to deleting the proclaimed objectives of the
law is another source of problem. And its implications cannot be undermined
when one considers the fast pace at which technological changes are taking
place in the present day world. Unless future technologies are brought within
the ambit of the law, it will soon become irrelevant to the very issues, which
are addressed by it.
'Laddu' Means A Boy, `Barfi' A Girl
A `V' sign would
normally mean `victory'. But in some northern States of the country, a doctor
uses this sign after ultrasonograhpy of a pregnant woman to indicate,
"Voila, it's a son!''
The other sign language that is used is
"laddu'' for a son and "barfi'' for a daughter. If the doctor asks
the patient to come back on a Friday, it means it is a girl she is carrying and
she should return for an abortion. And if he says, "Let's meet on
Monday'', it means its going to be a boy.
This sign language is the latest manner devised by
unscrupulous doctors to circumvent the law which bans s*x determination of an
unborn child under the Pre-natal Diagnostic Tests (PNDT) Act to prevent female
foeticide, which has the Government worried with declining female s*x ratio.
"Just by registering sonography machines, as
the Supreme Court has directed in its latest order, this problem is not going
to go. Unless the State makes some examples by taking severe action against
erring doctors, nothing will happen,'' demographer Ashish Bose told The Hindu
here on Wednesday.
Dr. Bose recently conducted a study on female
foeticide with Mira Shiva of the Voluntary Health Association of India (VHAI)
in
The study, `Darkness at Noon', shows that
"demographic fundamentalism" i.e. preference for a boy-child is on
the rise in the country, particularly in
The study, which covered Kurukshetra in Haryana,
Fateh Saheb in
It says that the force of the son complex cuts
across religion, caste, socioeconomic group and place of residence. It
increases with the rise of consumerism propagated by television advertising.
"Female foeticide must be comprehended in the wider context of increasing
violence against women and vigilance must be at the local level,'' it notes.
It suggests that one way to restore the gender
imbalance is by giving 33 per cent reservation in jobs to women, both in
private and public sectors. "Political empowerment is not enough without economic
empowerment.''
The study stresses the need for redefining
antenatal needs and educating public on the XY/XX chromosomes, which come from
the father and are responsible for determining the s*x of the child. Gender
violence, s*x determination, female foeticide, female infanticide and homicide
and even forced suicides by women, must be addressed as a major public health
concern.
B.
Recommendations to Make the Act More Effective
1. Greater
Involvement of the Medical Community
One of the main reasons that the PNDT Act has failed
is "because of the connivance of doctors in s*x determination and
selective abortions." These procedures have become lucrative business for
many of
2. Ban on all
Commercial Use of Pre-Natal Diagnostic Techniques
In its current incarnation, say critics, the PNDT
Act "completely misses the relationship between technology serving the
ends of social prejudice and commercial interests taking advantage of it."
Indeed, by being exclusively concerned only with regulating the motives of
doctors using the technology, the PNDT Act fails to adequately address the fact
that the technology will be used and exploited. The solution may be a seemingly
drastic measure: a complete ban on all commercial use of pre-natal diagnostics.
Right now, the PNDT Act permits the use of pre-natal diagnostics but requires
registration of pre-natal diagnostic centers and clinics. Because it is so easy
for doctors to register such centers as legitimate, under the plea of
preventing genetic abnormalities, the requirement does little to deter s*x
determination. Rather, this registration requirement may be encouraging s*x
determination. Once a clinic achieves registration status, it is legitimized
and regularized, thereby adding to the clinic's prestige.
One alternative is to completely ban all diagnostic
techniques. While this would prevent parents from finding out about, and subsequently
aborting, genetically abnormal fetuses, the cost of losing such a luxury might
well be outweighed by the benefit of stamping out female feticide. In addition,
under "Article 2 of the Convention of Rights of the Child [sic], a
disabled child has as much right to be born as a normal child." Therefore,
a complete ban might be justified even in the context of genetic abnormalities.
A viable compromise might be a complete ban on the
commercial use of pre-natal diagnostic technology. The Act could wholly ban the
use of any of these technologies for the private sector. Tests permissible for
reasons other than s*x determination could be confined to government hospitals.
Taking the technology away from the private sector may be the best and fairest
way of preventing its abuse.
3. Immunity
Granted to Women Patients
As discussed above, one of the grossest inequities
in the PNDT Act is the fact that the women who undergo these procedures are
subject to punitive measures. If the PNDT Act is to be truly effective, it must
recognize and remedy the underlying cause of the woman's involvement in s*x
determination. This necessitates an acknowledgment that, more often than not, a
woman is forced to undergo the test and subsequent abortion. One way to break
this vicious pattern is to offer immunity to all women patients under the PNDT
Act. In other words, make the presumption that a woman has been coerced
non-rebuttable. Eliminating the possibility that the woman will be held to
blame will further deter doctors, relatives, and husbands from using the
woman's supposedly voluntary involvement as a cover-up for their own legal
responsibility.
C. PNDT Act
Amended Lo Include a Ban on Pre-Conception Sex Selection
Because of the nature of pre-conception
technologies, they have been beyond the purview of the existing PNDT Act. This
Part will discuss how the PNDT Act should contend with these technologies.
First, it will distinguish pre-conceptual s*x selection from s*x determination
technologies, and explain the importance of such a distinction. secondly, it
will explore the subject of fundamental rights and the pro-choice myth.
Thirdly, it will address government regulations and alternatives. Finally, it
will discuss amending the act to cover pre-conception technologies.
1.
Pre-Conceptual Sex Selection as Distinguished from Sex Determination
It is important to differentiate between
pre-conceptual and postconceptual s*x determination. Post-conceptual s*x
determination employs diagnostic procedures to ascertain the s*x of the unborn
child, and then necessarily calls for the abortion of the "wrong s*x"
fetus. By contrast, pre-conceptual technologies serve to select the s*x of the
child before conception and thus prevent the "wrong s*x" fetus from
being created in the first place. In a sense, pre-conceptual technologies
cannot rightly be called s*x determination; there is not yet a fetus whose s*x
is to be determined. Rather, the procedure is pure selection of a desired s*x;
in
The difference is more than mere semantics. Indeed,
pre-conception s*x selection procedures fit snugly into legal and ethical gray
areas and find advocates among many die-hard opponents of post-conception s*x
determination. Such advocates point out that these technologies should be seen
as a positive alternative to the old regime of infanticide and feticide, an
expression of a woman's choice, that is, the right to choose to pre-determine
the s*x of her child, and an essential development of science. They argue that
pre-conception technologies should thus remain beyond the reach of the PNDT Act
Many supporters of the PNDT Act endorse its
enforcement over pre-conception s*x selection as well, noting that these
technologies have the same discriminatory and immoral end result as their
predecessors-to prevent the birth of female babies. For such supporters, s*x
selection is an offense because it skews s*x ratios and perpetuates a system of
discrimination against women, both for the women who are forced to undergo the procedure
and for the females who are denied their fundamental right to be conceived and
born. As one astute commentator poignantly observes, "[w]hen the country
is debating for a 33% reservation for women in the Parliament, the genuine and
natural seat for women [fetuses] in the uterus is now denied. It is nothing
short of a barbarian act."
Conversely, many who support the PNDT Act primarily
in the context of abortion believe that s*x determination and the abortion that
accompanies it are objectionable per se, while s*x selection itself is not. For
them, the key distinction is the taking of human life; pre-conception s*x
selection is victimless and thus permissible. In addition, there are those who
oppose any intervention of s*x selection under the Act, arguing that the
pre-conception choice of a child's s*x is a fundamental right of the parents,
and must therefore be free from interference.
2. Government Regulations and Alternatives
Even among those who would agree that the PNDT Act
should take pre-conception technologies into account, there is dispute as to
what should be the extent of the government intervention. Here, the Indian
government may find it helpful to look at how its Western counterparts have
dealt with the regulation of these relatively new technologies.
The
In broad terms,
A second option is to regulate pre-conception s*x
selection through the adoption of non-legal alternatives. Canada, for instance,
relies solely on professional ethical codes to prohibit s*x selection.152
However, critics of the Canadian model point out that a major weakness in this
approach is that professional codes are not legally enforceable.153 If Indian
doctors have shown an inability to abide by non-legal professional codes in the
sphere of s*x determination and abortion, then there is little to suggest that
they would allow themselves to be regulated by these codes in this context
either.
Far more intriguing may be the economic alternative
for regulating pre-conception s*x selection. Those who favor this method point
out that economic interference with the free market would keep s*x selection
within "acceptable limits." For instance, the government could
eliminate public funding, set high licensing fees, institute a limited number
of permits for s*x selection, or even set up a special form of regulatory tax
on s*x selection technologies.The effectiveness of these economic alternatives
in the Indian context rests on a shaky premise; they assume that economic
factors govern supply and demand control s*x selection in India. The Indian
experience with s*x determination belies this premise. Indian fertility clinics
abound with stories of desperate patients clamoring to take advantage of the
technology at any cost. As much as s*x selection might be seen as an economic
luxury in the West, it is regarded as a perverse necessity in
3. Amending the Act to Cover Pre-Conception
Technologies
Third, the Indian legislature could follow the model
offered by its European counterparts and limit s*x selection, permitting it
only to prevent serious genetic disease, but prohibiting it for all non-medical
uses. This could be easily accomplished by amending the existing PNDT Act to
limit s*x selection technologies to serious medical uses only. This option
would allow the government to prevent the misuse of s*x selection while
allowing for legitimate uses of the technology. The benefits of this "best
of both worlds" option, in its ideal state, are difficult to overestimate.
However, there is serious difficulty in shielding such an option from potential
abuse. Much of the same misuse problem that has plagued post-conception
technology will, no doubt, adapt itself to pre-conception technology as well.
As technology advances, the instrumentality by which s*x selection is
accomplished will likely become more accessible. To allow such technology to
exist, regulated only for its purported uses, invites abuse. There very well
may be rampant falsifying of genetic disorders - by parents or by fertility
clinics - to undergo s*x selection.
In broad terms,
A second option is to regulate pre-conception s*x
selection through the adoption of non-legal alternatives. Canada, for instance,
relies solely on professional ethical codes to prohibit s*x selection.152
However, critics of the Canadian model point out that a major weakness in this
approach is that professional codes are not legally enforceable.153 If Indian
doctors have shown an inability to abide by non-legal professional codes in the
sphere of s*x determination and abortion, then there is little to suggest that
they would allow themselves to be regulated by these codes in this context
either.
Far more intriguing may be the economic alternative
for regulating pre-conception s*x selection. Those who favor this method point
out that economic interference with the free market would keep s*x selection
within "acceptable limits." For instance, the government could
eliminate public funding, set high licensing fees, institute a limited number
of permits for s*x selection, or even set up a special form of regulatory tax on
s*x selection technologies. The effectiveness of these economic alternatives in
the Indian context rests on a shaky premise; they assume that economic factors
govern supply and demand control s*x selection in
Third, the Indian legislature could follow the model
offered by its European counterparts and limit s*x selection, permitting it
only to prevent serious genetic disease, but prohibiting it for all non-medical
uses. This could be easily accomplished by amending the existing PNDT Act to
limit s*x selection technologies to serious medical uses only. This option
would allow the government to prevent the misuse of s*x selection while allowing
for legitimate uses of the technology. The benefits of this "best of both
worlds" option, in its ideal state, are difficult to overestimate.
However, there is serious difficulty in shielding such an option from potential
abuse. Much of the same misuse problem that has plagued post-conception
technology will, no doubt, adapt itself to pre-conception technology as well.
As technology advances, the instrumentality by which s*x selection is
accomplished will likely become more accessible. To allow such technology to
exist, regulated only for its purported uses, invites abuse. There very well
may be rampant falsifying of genetic disorders - by parents or by fertility
clinics - to undergo s*x selection.
Finally, the Indian government could amend the PNDT
Act to include an absolute prohibition on s*x selection, irrespective of its
purported use. A complete ban might strike some as too extreme a measure to
take. When understood in the context of
Ultimately, to allow pre-conception s*x selection is
a slippery slope. It legitimizes skewing s*x ratios and preventing female
births. In so doing, it undermines the eradication of the underlying issues
that actually motivate such evils. Whether through partial limitations or a
complete ban, the PNDT Act must include provisions to bring to an end to
pre-conception s*x selection.
IV. CONCLUSION
The Pre-Natal Diagnostic Techniques Act is
