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By Laxmi Murthy An estimated 20 million females in this country have been eliminated following sex-determination tests. But not a single doctor has been convicted. It is the providers of this technology who have to be held ethically as well as legally accountable. Will the recent amendment to the PNDT Act change anything?
On January 17 this year, the President gave his assent to the amendment to the ineffective Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) (PNDT) Act, 1994. Now called the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, the amendment leaves no room for doubt about its intentions. The long-awaited amendment -- geared to strengthen the regulatory mechanisms and implementation of the Act, and also broaden its scope -- has been greeted with applause by women's groups and health activists, and hostility by the medical profession, which tried its best to scuttle the overhaul of the law. Bringing into the ambit of the Act emerging techniques for pre-conception sex-selection, such as sperm separation and pre-implantation genetic diagnosis, increasing the fine and additional provisions for the suspension and cancellation of the registration of violators, the law rightly targets the medical profession: the so-called 'supply' side of the practice of sex-selection. Manufacturers of ultrasound equipment are now required to sell their products only to registered clinics, and all ultrasonographers now have to maintain records of all tests conducted by them. The amended law also provides for the setting up of state-level supervisory bodies to monitor the Act's implementation, in addition to the supervisory agency that is already in operation at the central level. These measures, prompted in no small measure by the rap delivered by the Supreme Court in the case filed by CEHAT and Masum, Pune-based groups working on health, went alongside a process of public education and awareness-raising. The plummeting child sex ratio evident in Census 2001 galvanised policymakers into action. Besides amending the law, which had proved ineffective in checking sex-determination followed by the abortion of female foetuses, campaigns against sex-determination were launched at a frenetic pace, particularly in the states of Punjab, Haryana and Delhi -- where the child sex ratio was notably low. Undoubtedly, there is a demand for the service -- a symptom of a social malaise where discrimination against women has been aided by medical technology. There is no arguing that this form of violence against women has its roots in basic gender inequalities. The medical profession too held public functions against sex-determination, and much media attention was devoted to the public-spirited doctors vowing to fight this practice. Yet, these medical professionals are few and far between. Awareness-raising and oaths are unlikely to make a dent in a profession that has shaped itself into an industry, particularly over the last decade, when privatisation of health services has become the norm. It was only in 2002, eight years after the PNDT Act was passed, that the Medical Council of India (MCI) -- authorised under Section 23 (2) of the Act to take action against any erring medical practitioner -- recognised undertaking sex-determination tests 'with the intent to terminate the life of a female foetus' as professional misconduct. According to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, published in the Gazette of India on April 6, 2002, sex-determination without 'proper indication' can lead to de-registration and criminal prosecution. When any act moves from being ethically questionable to being legally prohibited, regulatory mechanisms play an important role. Cynics may deny the utility of a law simply because it is possible to flout it, and because the regulation brings with it scope for corruption -- the much decried 'license raj'. Yet, the demand for legislation, and the articulation of what constitutes a wrong-doing/crime has been the hallmark of many campaigns of the women's movement. While the 'demand side' of sex-determination can be (and must be) tackled through social initiatives and not enforcement, this is a more long-term process, one where change is not so tangible. Until material conditions change, the status of women is unlikely to improve, in spite of consciousness-raising exercises. Dr J K Banthia, registrar general and census commissioner of India, while drawing attention to the 'red spots' on the census map -- districts with a child sex ratio below 865 -- points out the districts with a comparatively better ratio, in the north-east and Kerala. It is no coincidence that these are regions where women have greater access to productive resources, land rights and control over property. When fundamental inequalities are not addressed, the government rhetoric of 'empowerment' sounds hollow.
While the women's movement cannot fail to take cognizance of this social reality, why is it that legislation and enforcement has been a significant part of the campaign? Probably because dealing with the providers of the technology shows more immediate results, and sends a message that the practice is simply not acceptable. Moreover, the medical profession and healthcare industry is less amenable to conscientisation and social awareness. It must be tackled through law enforcement and stringent action against violators. Confusion often prevails, says Satish Agnihotri, UNICEF consultant, when there is a crackdown of enforcement on the demand side, such as in Punjab where pregnant women who had undergone sex-determination tests, followed by abortion, were doubly victimised and thrown into jail by overzealous police officers intent on fulfilling their 'quota' of arrests under the PNDT Act. It is another matter altogether that the PNDT Act attempts to keep the police (notorious for their ham-handedness at best, and brutality and corruption at worst), out of the enforcement, and instead operates through 'appropriate authorities' at the central and state level to ensure compliance with the Act. Legislating in an arena such as reproductive technologies is a complex matter, impinging on the knotty areas of sexuality and reproductive rights -- the right of the foetus to live, the right of the woman/couple to abort, the right of the doctor to conduct a sex-determination test, the collective rights of a community to demand that there be fewer females, or the right of society to demand that there be an end to sex-determination. These conflicting interests, when mediated through the rights discourse and legislative interventions, tend to lose some of the inherent nuances. The issue is made even more complicated by the fact that pre-natal sex-determination is a curious crime where there is no discernable victim. Feminists are loath to confer the right to life on the foetus, and the women's movement the world over has fought for a woman's right to control her own body. Unconditional access to safe, legal abortion is a non-negotiable demand to ensure some measure of reproductive autonomy in a situation where women are not in a position to refuse sex, especially in the marital context, where men do not shoulder the responsibility of contraception, where sexual abuse is rampant and safe contraceptives are neither freely accessible nor fool-proof. Yet, feminists also fight against patriarchal notions which lay down that a female has no place in this society, and the campaign against sex-determination and sex pre-selection is but one aspect of this battle. Pre-selection is even more complicated -- a sanitised and less messy way of eliminating the female. There is no 'life' to contend with, no 'murder', no blood and gore. Yet, the violence is in no way diminished. If anything, this is an extreme form of misogyny unimagined until a couple of decades ago. Given the urgency of arresting the decline in the sex ratio, and addressing the gross violation against the girl-child, an issue that has received little attention is the unquestioning acceptance of eliminating a 'deformed' foetus. The disability rights movement has, in some parts of the world, articulated the concern that a society increasingly intolerant of diversity in any form, and more and more utilitarian in approach, is using medical technology to eliminate any persons who do not fit in with a notion of 'normality'. While eugenics is increasingly taking hold, especially in the field of Assisted Reproductive Technologies (ART), couples are being given the option of tailor-made babies, conforming to specifications. But can the medical profession be expected to self-regulate? Unlikely, feels Dr Sanjay Nagral, surgeon at Jaslok Hospital, Mumbai, and member of the Forum for Medical Ethics, given that bodies like the MCI function virtually as trade unions to defend erring doctors accused of malpractice. The MCI code of conduct, while recognising sex-determination as a punishable offence, allows a huge leeway, since it is only sex-determination 'with the intent to terminate the life of a female foetus' (who will question the doctor's intention?) and sex-determination 'without proper' indication that is unacceptable. There is already enough evidence to show that doctors are getting around these regulations, as well as the letter of the law prohibiting the communication of the sex of the foetus. Says Dr Vishesh Kumar, medical officer, Gurgaon: "When asked to specify the indication for which ultrasound is being prescribed, doctors claim 'less amniotic fluid', 'abnormal foetus' etc." The patients are in no doubt about what 'abnormal' in this context means. A male foetus is heralded by the declaration: "Everything is fine!" The obsession with sons has other tie-ins with medical technology. For those who reach the ninth month of pregnancy without a sex-determination test, an ultrasound at that stage revealing a male foetus is often followed by supposed 'foetal distress' and the 'need' for a caesarean section -- double the cost of a normal delivery. But who cares about the cost when it is spent on a boy child? The Act, even with amendments, fails to recognise current medical practice for what it is -- a business. Contrary to the demands put forth by several concerned social organisations/activist groups since the early-1990s, that all pre-natal diagnostic tests be restricted to government hospitals, the 'regulation' of these techniques in fact grants a legitimacy to private sector expansion, and the consequent misuse of technology by it. Unless the proliferation of medical technology and its indiscriminate use in obstetrics and gynaecology is examined, it will be virtually impossible to arrest sex-selection. The hue and cry by doctors over the amendments, and their claim that the Act will adversely affect their ability to practice, had at its central point the alleged indispensability of ultrasound as a diagnostic tool in obstetrics. These claims need further substantiation, says Dr Puneet Bedi, foetal medicine specialist at Apollo Hospital, Delhi. Basing his statement on the Cochrane database, a compilation of the latest in medical research, Bedi says that there is no case for routine ultrasound in obstetrics. "There is no evidence that routine ultrasound has improved either maternal or foetal outcomes. Moreover, it is not always accurate, since it is a completely observer-based diagnosis." More worrisome is the fact that the risks are not fully known, and some studies show a correlation between repeated ultrasounds and miscarriage, low birth-weight babies and pre-term labour. Yet, as Bedi points out, no other procedure in the history of obstetrics has been accepted on such a large scale with so little evidence of effectiveness or safety. An estimated $ 1 billion is spent every year in the US on routine ultrasounds, and it is a Rs 5 billion industry in India. Is it any wonder then that 'diagnostic clinics' are sprouting out of every garage and tin shed? Undoubtedly, the easy availability of technology is making it easier to translate son preference into the elimination of females. An estimated 20 million females in this country have been eliminated following sex-determination tests. But not a single doctor has been convicted. It is the providers of this technology who have to be held ethically as well as legally accountable. Immediately. Before another 20 million females go missing. (Laxmi Murthy is a freelance journalist specialising in gender and development. She has been active in the women's movement for the past 18 years) InfoChange News & Features, February 2003
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