Our last post on this blog covered the illegalities of sex determination. Considering the fact that sex determination and pre-natal diagnostics for the purpose of sex determination are illegal as per Section 6 of the pre-conception and pre-natal diagnostic techniques (prohibition of sex selection) act, 1994, you must be wondering under what circumstances is the pre-natal diagnosis allowed. 

As mothers, women are often worried during their pregnancy about the health of their child/foetus and would want to know if the foetus is healthy or there are any complications. The law aptly covers those circumstances.

As per Section 4 and Section 6 of the act, pre-natal diagnostic techniques for the purpose of determining the sex of the foetus is prohibited except for certain exceptions. 

Pre-natal diagnosis is exceptionally allowed for detection of any of the following abnormalities — [meanings of various abnormalities have been explained below in general terms to help the readers considering that most of the readers would not have knowledge of medical terms] 

  1. chromosomal abnormalities – Chromosomal abnormalities occur where there are missing or extra chromosomes, or pieces of chromosomes. Down syndrome, the most common chromosomal abnormality, is caused by an extra chromosome number 21.
  2. genetic metabolic diseases – Inherited metabolic disorders are genetic conditions that result in metabolism problems. Most people with inherited metabolic disorders have a defective gene that results in an enzyme deficiency.
  3. haemoglobinopathies – The hemoglobinopathies are a group of disorders passed down through families (inherited) in which there is abnormal production or structure of the hemoglobin molecule. Sickle cell disease (SCD) is one such blood disorder caused by the abnormal hemoglobin that damages and deforms red blood cells.
  4. sex-linked genetic diseases – Sex-linked diseases are passed down through families through one of the X or Y chromosomes. Some of the more familiar sex-linked traits are hemophilia, red-green color blindness, congenital night blindness, some high blood pressure genes. 
  5. congenital anomalies – Congenital anomalies can be defined as structural or functional anomalies (for example, metabolic disorders) that occur during intrauterine life and can be identified prenatally, at birth, or sometimes may only be detected later in infancy, such as hearing defects.
  6. any other abnormalities or diseases that the Central Supervisory Board specifies.

It may further be noted that even for the aforesaid purposes i.e. detection of chromosomal abnormalities etc., pre-natal diagnosis can be done only if the person doing the diagnosis is satisfied that any of the following conditions are fulfilled and has recorded the same in writing: 

  1. age of the pregnant woman is above thirty-five years; 
  2. the pregnant woman has undergone two or more spontaneous abortions or foetal loss;
  3. the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals;
  4. the pregnant woman or her spouse has a family history of mental retardation or physical deformities such as, spasticity or any other genetic disease;
  5. any other condition that the Central Supervisory Board specifies.

If the aforesaid criteria are fulfilled, only then, pre-natal diagnosis can be done. 

Disclosure of sex

The person conducting the aforesaid pre-natal diagnosis on a pregnant woman or any other person, cannot disclose/communicate the sex of the foetus to the pregnant woman or her relatives or any other person either by words, signs or in any other manner.

The following are some illustrations to demonstrate the manner in which sex of the foetus is disclosed by medical practitioners, which is illegal. 

  • Dr. Lata tells Ramu it is time to celebrate, give me a packet of sweets. This is illegal as indirectly the Doctor is communicating to the father that it is a baby boy.
  • Dr.Lama told Geeta, Oh! your shoulders have become heavy now. This is also illegal as the same indirectly conveys the fact that it is baby girl.
  • Dr.Himmat never told his patients anything, he used raise his left eyebrow when it was a boy and right eyebrow when it was a girl. Dr.Himmat’s actions though creative are also in violation of the law as the same amount to signs and gestures which is also prohibited. 

Consent

The person conducting the pre-natal diagnostic procedures cannot conduct the diagnosis unless he has explained all known side and after effects of such procedures to the pregnant woman concerned; has obtained in the prescribed form her written consent to undergo such procedures in the language which she understands; and a copy of her written consent obtained is given to the pregnant woman. 

Encouragement by family members to conduct sex selection techniques

The law further provides that relatives or husband of the pregnant woman cannot encourage/force her to get any sex selection technique conducted on her. 

This is a very important provision that the law provides for protecting women. More often than not even if the pregnant lady is herself not interested in getting the sex of the child determined or conducting any sex selection techniques, the family members and relatives force her for sex determination and sex selection due to social stigmas attached with birth of a girl child. This provision protects women from such situations.

Presumption in favour of women

As per the law, if any women gets pre-natal diagnosis conducted for purposes other than detection of abnormalities etc., in that event the assumption of the court is that the pregnant woman was compelled by her husband or any other relative, to undergo pre-natal diagnostic technique, unless the contrary is proved.

Punishment

Any person who approaches any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or ultrasound clinic or imaging clinic or any other person for conducting pre-natal diagnostic techniques on any pregnant women for the purposes other than detection of abnormalities, is punishable with imprisonment for a term which may extend to three years and with fine which may extend to fifty thousand rupees for the first offence and for any subsequent offence with imprisonment which may extend to five years and with fine which may extend to one lakh rupees.

Note: This Article provides an outline of the law. If you have specific queries or questions, please feel free to DM on instagram or email on billablesbeyond@gmail.com