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Sex selection and questions of law

Print edition : Oct 14, 2000 T+T-

A public interest petition filed in the Supreme Court draws attention to the loopholes in the law intended to prevent pre-natal sex determination and female infanticide.

A PUBLIC interest petition filed in the Supreme Court alleges that the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, which came into force in 1994, has failed to achieve its goals. The petitioners - Sabu George, Centre for En quiry into Health and Allied Themes (CEHAT) and the Mahila Sarvangeen Utkarsh Mandal (MASUM) - say that female foeticide continues to exist in various garbs and have sought the intervention of the court to interpret the Act in such a way that it takes i nto account new techniques such as Pre-implantational Genetic Diagnosis (PGD). Taking prima facie notice of the petition, filed in February, the court issued notice to the respondents - the Ministry of Health and Family Welfare, the Department of Women a nd Child in the Human Resource Development Ministry, and the departments concerned of the various State governments.

The petition draws attention to the gross misuse of reproductive technology in a society characterised by a strong bias against the female child. Even as female infanticide is yet to be eradicated, techniques like PGD have widened the gap in the already skewed sex ratio. That a link exists between female feoticide or infanticide and the widening sex ratio has long been accepted by demographers. The sophisticated technique of PGD helps couples with genetically determined conditions, but this does not out weigh the damage caused by its misuse by unscrupulous practitioners.

A complicated sex pre-selection technique, PGD (also called Ericsson's technique) involves the identification and discarding of the female embryo. The first step is "pick-up", which involves the collection of unfertilized eggs from the ovaries. They are fertilized in a petri dish with active sperms. The embryos are then carefully nurtured in an incubator.

After 72 hours, each eight-cell embryo is biopsied by a micromanipulator, which includes glass pipettes and a powerful microscope. While one of the pipettes holds the embryo in place, the second delicately extricates a single cell from the little clump. The extricated cell is taken to a tiny FISH (fluorescent in situ hybridization) laboratory and transferred to a slide under a stereo Zoom microscope, specially designed for single-cell analysis. The genetic blueprint of the cell is studied in order to de termine the sex of the embryo. Chemical stains are used to single out the X and Y chromosomes from the intricate genetic master plan. It is then "bathed" to wash away unwanted cellular debris, which could interfere with the analysis. The freshly scrubbed X chromosome (female) shows up as a pink dot while the Y chromosome (male) appears as a bright green speck. The male embryos are then implanted in the woman's uterus.

Only XY sperms, which can produce boys, are used for artificial insemination. Thus sex selection takes place before conception. While ultrasonography and amniocentesis determine the sex of the foetus during pregnancy, and the foetus is aborted if found to be female, in the PGD mechanism sex selection takes place much before. This happens in a situation where the national sex ratio is 929 women for every 1,000 men.

The PNDT Act is construed as a toothless piece of legislation because it has been interpreted in various ways and misused or not used at all. "The problem today is the interpretation of this Act by the ultrasonologists, the abortionists, the doctors and most importantly the government," the petition says. The petitioners contend that the narrow interpretation of the Act presupposes the exclusion of pre-natal sex selection from its purview.

The Act required the setting up of a Central Supervisory Board in order to advise the government on policy matters relating to pre-natal diagnostic techniques; to review the implementation of the Act and its rules; and to recommend changes in the Act and its rules. The Act also provides for the appointment of appropriate authorities in the States, Union Territories and regions wherein the authorities are empowered to grant, suspend or cancel the registration of genetic counselling centres, laboratories and clinics and also to investigate complaints regarding breach of the provisions of the Act or the rules. The petitioners contend that the Central and State boards have not met regularly and, as a result, the implementation of the law has not been revie wed. They claim that there are more than 200 applications for the registration of genetic clinics pending with the authorities in Tamil Nadu alone. While many function without authorisation, the delay in the processing of applications has resulted in cli nics functioning without even applying for registration. In many of the clinics, doctors without the requisite qualifications conduct the procedures, the petition alleges.

Such activities continued despite the directives of the Indian Council of Medical Research (ICMR), the PNDT Act and relevant sections of the Beijing Declaration to which India is a signatory, the petition says. The principal objective of the PNDT Act is to provide for the regulation of the use of pre-natal diagnostic techniques for the purpose of detecting genetic or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders. The ACT also aims to prevent the misuse of such techniques for the purpose of pre-natal sex determination leading to female foeticide.

Despite the comprehensive definition, the Under Secretary in the Union Ministry for Health and Family Welfare, responding to clarifications sought by the Director, Health Services, Punjab, communicated the views of the Ethical Committee of the ICMR on th e X-Y chromosomal separation of sperms for the pre-determination of sex: "The PNDT Act clearly states that the Act is provided for prevention of pre-natal sex determination and the person conducting the procedure should not communicate the sex of the foe tus to the pregnant woman or her relative, by words, signs or any other manner. This Act relates to testing in a pregnant woman. The concept of pre-conceptual sex planning is not covered under the Act." Evidently, here the Act has been interpreted to exc lude from its purview pre-conceptual sex selection.

The petition quotes extensively from studies conducted by one of the petitioners, Sabu George, in some districts of Tamil Nadu, where for the first time in a southern State cases of female infanticide were reported in the mid-1980s. The PNDT Act came 10 years later. Infanticide, George contends, existed for several decades in Tamil Nadu but went unnoticed. Demographic evidence suggests that despite the Act, the practice has continued in the last two decades. George concluded in mid-1995 that female infa nticide was reported from several districts of the State and not only from Salem, North Arcot or Madurai. As government vigilance grew and forensic evidence threatened to expose parents, new techniques were devised to do away with new-born baby girls. Th ese included starvation and the killing of the babies.

What prompted the petitioners to act immediately were advertisements of clinics in Punjab, Haryana and Tamil Nadu, which appeared in leading newspapers, offering sperm separation and sex selection before conception. One of them, "Sofat Infertility and Wo men Care Centre", inserted the same advertisement on the same day (July 15, 1999) in the Chandigarh editions of two newspapers. Another one was issued by a Madurai-based clinic - the Centre for Infertility Tests and Assisted Reproductive Technologies. Ha ryana's sex ratio is the lowest in the country at 875 females for every 1,000 males, while Punjab's stood at 882. Sabu George, who is associated with the Pondicherry Science Forum, along with R.S. Dahiya, an Associate Professor in the Post Graduate Insti tute of Medical Sciences, Rohtak, has done an extensive study of female foeticides in two districts in Haryana.

The study, "Female Foeticide in Rural Haryana", published in December 1999, was sponsored by the State Resource Centre, Haryana and was done among a rural population of 13,000 persons. The study unequivocally stated that the transfer of reproductive tech nology to India had had deleterious effects and its abuse had resulted in the reinforcement of patriarchal values. Incidentally at the time of writing the report, PGD techniques were not considered; at that time, it was presumed that these methods, which were expensive, were available only in some clinics in some cities.

The women, whom George and Dahiya interviewed, especially women belonging to upper and landed castes, admitted that they practised female foeticide. In the sex ratio, distortions were the least among Harijans. George and Dahiya learned from doctors in Ro htak city that ultrasonography was abused for determining the sex of foetuses, and more doctors bought ultrasound machines and some were taking them to villages. The only difference, they found out, was that after the Act was passed in 1994, the cost of the test had doubled: female infanticide, both direct and indirect (deliberate neglect after birth), remained widespread. Certain rural families were found unable even to tolerate the fact of the first pregnancy if the child happened to be a girl.

New reproductive technologies will only unleash havoc in an already gender-biased system. The argument that sex selection be given as a choice does not hold good as the majority of people, especially women, have little choice in any matter that relates t o the sex selection of their child. In a patriarchal society, only a strict implementation of the PNDT Act and its purposeful interpretation can prevent female foeticides.