India: Challenges in implementing the ban on sex-selection

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.

The terrible impact of sex selection

The 2001 Census data and other studies illustrate the terrible impact of sex selection in India over the last decade-and-a-half.

* The child sex ratio (0-5 years) declined from 945 girls to 1,000 boys in 1991 to 927 in the 2001 census.

* In the 1991 census, there was one district with a sex ratio below 850:1,000. There were 45 such districts in the 2001 census.

* The sharpest declines in sex ratio were in Himachal Pradesh, Punjab, Haryana, Gujarat, Uttaranchal, Maharashtra (with 4,345 registered ultrasound clinics or centres out of a total 28,000 or so nationwide) and Chandigarh, where sex selection technology was widely available.

* The 10 districts with the worst sex ratios in the country – all below 800 – are all in Haryana and Punjab.

* A study by Joe Verghese and others of births in three public and five private hospitals in Delhi between 1993 and 2002 found that sex ratios get worse according to birth order. Thus if the sex ratio at birth is 925 girls for every 1,000 boys among first-born children, it is 731:1,000 among second children and 407:1,000 among third children. The sex ratio among second children is 959:1,000 if the first child is a boy; if it is a girl, it is 542:1,000. And if the second child, too, is a girl, among third children there are only 219 girls for every 1,000 boys.(The study is available on )

A population-based study based on 1998 data, recently published in The Lancet, reinforced Verghese’s conclusions. The sex ratio for first order births was found to be 871 girls for every 1,000 boys, compared to the expected sex ratio of 950-980: 1,000. If the first child had been a girl, the sex ratio of second children was as low as 759 girls for every 1,000 boys. This got further skewed to 719:1,000 for the third child, if both first and second children had been girls. Such skewed sex ratios were possible only with sex selective abortion.

* The sex ratio of second children when the first child was a girl was as low as 614: 1,000 in Punjab, 527: 1,000 in urban Rajasthan and 572: 1,000 in urban Bihar.

* Sex selection after a first girl was being done even in states such as Kerala.

* Religion had no influence on this practice.

* Women with a grade 10 or higher education were more likely to undergo sex selective abortions to avoid a second girl.

There are a total of 27,748 diagnostic centres registered under the Act. Over 16,000 of these are ultrasound centres. Findings of state-level surveys (reported elsewhere on in Maharashtra, Karnataka and Gujarat reveal:

* There is a correlation between the number of sonography centres in a district and the sex ratio there. For example, in Maharashtra, the sex ratio for districts with more than 100 centres was 901; it was 937 for districts with less than 100 centres. Four districts with less than 20 centres each had the best sex ratios -- 958 and above.

* There is a clustering of sonography centres. In Maharashtra 78% of clinics were in Mumbai, Pune, Nashik, Sangli and Kohlapur. In Karnataka, clinics are concentrated in Bangalore, Belgaum, Mysore and Gulbarga, out of 27 districts.

* Many centres – especially mobile units – are owned by doctors not trained in allopathic medicine. At a number of centres neither the owner nor main operator were qualified to do scans. A significant proportion were mobile or “on call” units that can be taken to remote areas.

The Delhi-based women’s group Saheli argues that the government has played a key role in supporting commercially-motivated medical professionals and promoting the diffusion of this technology. For one, it points to the clear link between the liberalisation of import duties on medical electronic equipment and the increase in the number of sonography centres. Second, it notes that ultrasound scanners are much, much more popular than ECG machines, X-ray machines or baby incubators. It would be interesting to study the relative importance of these different machines. Are they being manufactured or imported according to the need for them, or the market for illegal use?

Finally, what are the consequences of the changed sex ratio? Does it mean that the social status of women improves? On the contrary, the newspapers these days contain many reports of the consequences of a society with a shortage of women: Women are being forced into polyandry, or being “shared” by brothers, and have suffered violence for refusing to do so. Poor women from the East of India and Bangladesh are being trafficked to Punjab and Haryana to provide girls for marriage.

By: Sandhya Srinivasan