Flawed approach

An all-male panel decided to recommend mandatory sex-determination for all pregnant women

A 25-member Maharashtra panel recommended mandatory pre-natal sex determination last week. The only woman member was not part of the discussions.

Legislators from Maharashtra who proposed mandatory sex-determination in a bid to combat pre-natal sex selection barely discussed the impact of the strategy on women.

The 25-member Public Accounts Committee based its recommendation on audits conducted by Maharashtra’s Accountant General, which cited “discontent among the medical community” with current law enforcement strategies that put the onus on doctors to prevent misuse of sonograms to determine the gender of foetuses. A report by the committee noted serious gaps in government inspections of ultrasound centres. The Pre-Conception Pre-Natal Diagnostic Techniques or PCPNDT Act requires officials to inspect ultrasound centres at least once every three months to ensure that the doctors are not revealing the gender of the foetus to prospective parents or their relatives.

Yet, the report, a copy of which has been obtained by Scroll.in, showed that despite the Accountant General’s audit exposing loopholes in the implementation of the law, the committee made no suggestion to improve the inspection system. Instead, it suggested creating “fear in the minds of the parents” and penalising them for sex-selective abortions.

The committee wants doctors, health officials and NGOs to track women pregnant with female foetuses to ensure that “female foeticide” is not performed.

The recommendation has received a lot of criticism from women’s rights groups who fear that a woman’s right to legal abortions will be compromised and that she could face abuse at the hands of relatives who know that the foetus is female.

The committee is a 25-member panel headed by the leader of the opposition in Maharashtra, Congress MLA Gopaldas Agarwal. The committee members are appointed from the state assembly and council. No minister is a part of the committee whose recommendations are integral for probing irregularities.

The committee currently has only one woman member – Madhuri Misal from the Bharatiya Janata Party. “I was not a part of the meetings which discussed [mandatory sex determination],” she told Scroll.in via a text message.

Asha Bajpai, professor at the Centre for Law and Society at the Tata Institute of Social Sciences, said that women representatives need to be part of such discussions for gender-sentitive laws to be framed. “When women are missing in such committees the result is a lopsided decision,” she said.

The committee held 19 meetings and discussed an array of issues including the implementation of the PCPNDT Act. The committee usually studies the expenditure and implementation of policies by departments and makes suggestions on how plug irregularities. However, in case of the failure to curb sex determination, the committee has advised a policy at complete odds with the PCPNDT law.

“This is only our recommendation,” said Somnath Sanap, deputy secretary of the committee. “It is up to the assembly and the government to act on it.”

Poor monitoring

According to the committee’s report, the Accountant General’s audit found that government officials did not inspect even one of the 7,239 ultrasounds facilities registered in Maharashtra between January and September 2015

Inspecting ultrasound centres is vital as the technology has been used for illegal sex-selective abortions in India since 1979. In 1994, the Pre-Natal Diagnostic Techniques Act was introduced in India and later amended to ban sex-determination before and after conception.

“The law is powerful but the implementation is not,” said Varsha Deshpande, an advocate who campaigns against sex-determination.

Another problem, Sabu George, a member of the national inspection and monitoring committee of the PC-PNDT Act, said, “These inspections, even if conducted, are a farce. If the officer is drinking a cup of tea at the centre, it can’t be called an inspection,” he said.

Offering a rebuttal to the Accountant General’s audit, government officials said that monitoring ultrasound centres has improved in Maharashtra and that about 94% of the state’s centres were inspected between April and December last year. However, the Auditor General asked, “The inspections are mandatory and you have to do 100% inspections. Why the shortfall?”

The government officials blamed “vacant positions” and “too much workload”.

When the Auditor General pulled up officials for not performing their mandatory duty, they said that the problem lies with the law. They said that it was difficult to collect various forms that are submitted by the ultrasound centre.

The law demands that ultrasound centres fill and submit a particular form every time they perform a sonography on a pregnant woman. “The law presumes that the doctor has violated law, if the doctor has not filled and maintained the forms,” said Deshpande, who is also an advocate. “The burden of proof is on the doctor to prove that he has not indulged in sex-determination.”

The Maharashtra government has filed about 500 court cases for violations of the PCPNDT Act and cancelled registration of 48 doctors across the state since the inception of the Act.

Radiologists have protested these strict provisions claiming that too many doctors have been prosecuted for clerical errors. They have repeatedly gone on strike demanding to be absolved from such responsibilities as filling forms. The committee members have now agreed with the doctors observing that “regular inspections have created discontent among the medical community.”

Shifting responsibility and blame

The Public Accounts Committee in its recommendation has said, “Under the Act, the provision is only to inquire against the doctor because of which there is no fear of law in the (mind) of the couple.”

They suggested that all women carrying female foetuses be tracked so she does not end up aborting the female foetus. “The government’s focus should shift to catching families who abort girls and not doctors,” Dr KK Agarwal, president of Indian Medical Association told Scroll.in in an earlier interview.

The PCPNDT law already has a provision by which a pregnant woman’s husband and family can be charged with abetment of sex-determination and prosecuted for seeking information on the sex of the foetus. However, a pregnant woman is presumed to be innocent unless proven otherwise.

“The government want to avoid implementation and save the doctors who are violating the law instead,” said Deshpande.

George agrees that the new proposal does little to protect pregnant women. “Such a step is only going to victimise women further and do more harm than good,” he said.

Maharashtra was the first state to ban sex-determination in 1988, following which the national law was implemented. “It is unfortunate that the legislators then had a vision, which the current legislators are lacking,” said George.

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