On 14 February 2003, the term ‘pre-conception’ was added to the title of the law that prohibited couples and doctors from determining the sex of an unborn child. The new version of the law came to be known as the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act. The amendment was the outcome of a public interest litigation in the Supreme Court. The petitioners — Dr Sabu George and two NGOs, Centre for Enquiry into Health and Allied Themes (CEHAT) and Mahila Sarvangeen Utkarsh Mandal — convinced the court that new pre-implantation and pre-conception technologies had been introduced in the country by doctors “who considered India to be a good market to promote these technologies and harvest profits”.
A 2006 handbook on the Act published by the Union health ministry recognised that techniques developed to select the sex of the child before conception may have been leading to a further decline in the sex ratio.
Assisted Reproductive Technology (ART) enables sex determination at two levels. The first is through a process called sperm sorting. This involves separating X and Y chromosomes in the sperm. A higher proportion of Y chromosomes significantly increases the chances of a male child. The second process is used after the egg is fertilised with the sperm and left to grow into embryos. The embryo of a certain sex is then placed into the woman’s womb.
The amendment, however, has so far not prevented any infertility clinic or doctor from determining a baby’s sex
before conception. The Act has rarely been used to punish violators, allowing art to be rampantly used across the country for pre-conception sex-selection to meet the demand for a male heir.
The issue was most recently highlighted when Shah Rukh Khan was accused of sex determination in June 2013. A tabloid claimed that the actor’s third child — through a surrogate mother — would be a boy. Social activist Varsha Deshpande filed a petition in the Bombay High Court, questioning how the sex of the unborn baby was known. After the court dismissed it, Deshpande filed a second petition demanding a probe into all in vitro fertilisation (IVF) centres for allegedly flouting the provisions of the PCPNDT Act.
“Most children born in IVF centres are boys,” she says. “But it is difficult to collect data as most art centres are unregistered and do not file the required paperwork.”
In April 2010, in a report titled ‘Implementation of the PCPNDT Act in India: Perspectives and Challenges’, the Public Health Foundation of India stated that modern medical diagnostics have made sex determination and selection much easier. “With the availability of pre-conception sex-selection techniques such as in vitro fertilisation (IVF), Ericsson’s technique of semen separation or the latest pre-implantation genetic diagnosis (PIGD), people can look to the gynaecologist next door for sex selection rather than relying on quacks,” the report read.
In October, the then Union health minister Harsh Vardhan acknowledged that IVF was being used to plan the sex of a baby before conception. “At IVF-ART clinics, couples are given the option of accepting or rejecting a foetus depending on its sex. While rules are in place to prevent misuse of ultrasound machines, very little is known about recent innovations brought to bear on sex selection,” he had said while addressing members of the Central Supervisory Board, the highest body overseeing the implementation of the PCPNDT Act. However, no action plan has been framed so far to punish the violators.