Sex Selection

Introduction
Sex selection — the use of any procedure, technique, test or provision of anything to ensure or increase the probability that an embryo, foetus or child will be of a particular sex — is one of the most legally and socially charged concepts in contemporary Indian law. It sits at the intersection of medical regulation, criminal law, gender justice and reproductive autonomy. For practitioners, mastery of the law on sex selection is indispensable: the issue triggers regulatory action (registration, inspection, seizure), criminal prosecution, disciplinary proceedings against medical professionals, and public-interest litigation aimed at protecting the demographic balance and the rights of women and unborn children.

Core Legal Framework
Primary statute
– Pre‑Conception and Pre‑Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act), as amended: the principal enactment. Key statutory touchstones for practitioners are:
– Section 2 — definitions (includes definitions of “pre‑conception procedures”, “pre‑natal diagnostic techniques”, and “sex selection”).
– Section 3 — prohibition of sex selection (no person shall undertake or cause to be undertaken any test or procedure to determine or select the sex of the embryo or foetus).
– Section 4 — prohibition on communicating the sex of the foetus to anyone.
– Section 5 — restrictions on use of prenatal diagnostic techniques (permitted only for specified medical indications).
– Registration and regulatory framework — the Act requires registration of genetic counselling centres, clinics and laboratories and empowers Appropriate Authorities to inspect, suspend and cancel registration.
– Penal provisions and consequences — contravention of the Act attracts imprisonment and fine; repeat offences attract higher punishment. The Act also empowers seizure of equipment and cancellation of registration.
Secondary / complementary instruments
– The Pre‑Conception and Pre‑Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (and subsequent rule amendments) — practical detail: format and filing of Form F, record‑keeping obligations, registration procedures, and standards for inspection.
– Assisted Reproductive Technology (Regulation) Act, 2021 (and rules) — regulates ART clinics, banks and procedures (including Pre‑implantation Genetic Diagnosis / Selection such as PGD/PGS). ART regulation complements PCPNDT by governing pre‑conception techniques that might be abused for sex selection.
– Relevant medical ethics and standards (Medical Council norms/ National guidelines) — professional liability and disciplinary consequences for medical practitioners.
– Constitutional and criminal law: where applicable, fundamental rights arguments (e.g., equality and right to life) and general criminal law principles guide prosecution, arrest and due process.

Practical Application and Nuances
How the Act works in the courtroom and clinic — the essentials
– The prohibited act is both the performance of sex selection and the communication or advertisement of sex determination. Thus the prosecution may proceed on multiple factual bases: (i) an ultrasound or PGD/PGS performed for the purpose of sex selection; (ii) the disclosure of sex to the pregnant woman or her relatives; (iii) advertisement or inducement; (iv) operation of an unregistered clinic or misuse of diagnostic equipment.
– Burden and proof: PCPNDT offences are primarily prosecutable offences under the Act. Prosecutors must prove that the act was done to determine or select sex or that sex was communicated. Evidence typically relied upon includes Form F and registers, ultrasound printouts, machine logs, patient records, booking slips, payment entries, witness testimony (patients/relatives), electronic communications (messages, emails), advertisements, and seizure‑room exhibits (records, machines).
– Records are decisive. Form F and the statutory register (maintained at every registered centre) are central to both prosecution and defence. Non‑maintenance or falsification of records amplifies suspicion and is frequently the gateway to conviction or administrative action.
Concrete examples and evidentiary patterns
1) Typical prosecution against an ultrasound clinic
– Fact pattern: Pregnant woman alleges she was told foetal sex during scan. FIR lodged. Appropriate Authority inspects clinic and seizes machine and files records.
– Evidence assembled: patient statement (supporting disclosure), ultrasound images dated to visit, Form F entry (or absence thereof), clinic’s appointment log, bank payments and mobile messages seeking male baby, advertisement for “sex determination”, and testimonial evidence of sonographer/doctor or staff.
– Prosecution focus: establishing that the scan was done and that sex was disclosed/communicated or that the centre conducted scans beyond permitted indications.
– Defence strategies: show medical justification for the scan (medical reasons recorded), challenge authenticity of seized records or chain of custody, establish compliance with registration and Form F, and challenge voluntariness/consistency of complainant’s statement.
2) Use of ART/PGD for pre‑conception sex selection
– Fact pattern: Complaint about an IVF clinic offering embryo selection for male children via PGD.
– Legal position: PCPNDT prohibition applies to pre‑conception procedures as well; ART Act and its rules additionally regulate clinics and expressly prohibit non‑medical sex selection. Evidence: clinic records, consent forms, witness testimony, bank trail, and registration status with relevant ART authority.
– Tactical angle: Coordinated prosecution may involve both PCPNDT authorities and ART regulatory bodies; administrative penalties (registration cancellation) often run in parallel with criminal prosecution.
Inspections, seizures and procedural safeguards
– Appropriate Authorities have wide powers of inspection and to seize equipment and records. Practitioners must be alert to procedural law: seizures and inspections should conform to the Act and rules; unlawful searches or breaches of procedure can be a viable defence on evidence admissibility and legality of detention/seizure.
– Arrests of medical professionals: courts have repeatedly cautioned that arrest should not be automatic if procedural non‑compliance is curable; however, where evidence of active sex selection/disclosure exists, arrest and prosecution may be sustained.
Interfaces with other legal doctrines
– Administrative law: registration, suspension and cancellation actions are susceptible to writ challenge on constitutional grounds (procedure, arbitrariness). However, courts have adopted a pro‑active stance to preserve sex ratio and upheld stringent enforcement.
– Evidence law: documentary evidence (Form F), chain of custody for seized machines and digital data, and medical expert testimony on the purpose and medical indications of procedures are central.

Landmark Judgments
– Sakshi v. Union of India, (2004) 5 SCC 518 (Supreme Court)
– Principle: The Supreme Court in Sakshi recognised the gravity of declining child‑sex ratio and emphasised strict implementation of the PCPNDT Act. It underlined that mere registration of clinics is insufficient unless they comply with the record keeping and substantive prohibitions. The Court directed States to constituting effective monitoring mechanisms, ensure Appropriate Authorities perform inspections, make Form F mandatory and to conduct awareness programmes. The judgment reinforced the protective and preventive aim of the Act and approved stern action against violators.
– Practical import: Courts will support proactive monitoring and administrative action; mere procedural compliance may not insulate clinics from prosecution where material indicates sex selection.
– (Select High Court practice) — implementation and custodial safeguards
– Several High Courts have stressed careful application of arrest powers against medical professionals and required that prosecution satisfy threshold material before custodial steps. They have also underscored the centrality of Form F and proper record maintenance; non‑maintenance has been held to attract independent penal consequences and to support adverse inference.
– Practical import: Defences based on procedural irregularities (e.g., absence of Form F, defective seizure procedure) have real traction in interlocutory and trial stages — but are not invariably determinative where other incriminating evidence exists.

Strategic Considerations for Practitioners
For prosecutors and state counsel
– Build a documentary matrix: obtain the clinic register, Form F entries, appointment logs, payment records, call logs and CCTV (if available). These form the backbone of a PCPNDT prosecution.
– Preserve evidence early: secure sealed seizure memos, photographic inventory of machines and records, and ensure medical imaging (prints/digital files) are preserved with documented chain of custody.
– Use expert evidence: obtain forensic opinion on ultrasound prints, date/time stamps and metadata; obtain medical expert testimony to show absence of medical indication for the scan at the time.
– Coordinate administrative and criminal tracks: seek immediate suspension of registration where prima facie misuse is established; administrative cancellations are effective prophylactic measures and deter recidivism.
For defence counsel (doctors/clinics)
– Compliance first: keep immaculate records (Form F duly filled, maintained register, justification for every scan or test), retain patient consent, maintain logs of indications, and ensure registration certificate and renewal records are up‑to‑date. Prevention is the best defence.
– Challenge admissibility and chain of custody: scrutinise seizure memos, who seized the machine/records, whether proper procedure under the Act and rules was followed, and whether there was any breach of privacy or procedural overreach by authorities.
– Medical justification and contemporaneous documentation: where scans are for accepted medical indications, ensure the patient file carries contemporaneous clinical notes justifying the procedure; retrospective explanations are weak.
– Arrest mitigation: early constitutional relief (bail, quashing where appropriate) may be available where material is weak; emphasise absence of mens rea for sex selection and bona fide medical practice.
Common practitioner pitfalls
– Treating Form F as a formality. It is evidence; poor entries, back‑dating or omissions invite immediate sanction.
– Ignoring registration or renewal requirements; operation without valid registration is an independent ground for prosecution/administrative action.
– Exposure via digital trail: WhatsApp messages, advertisements on social media, payment descriptions can easily be used as evidence. Clinics should monitor staff communications and advertising strictly.
– Overreaching public narratives: high public sensitivity means prosecutors and courts take a strict approach; flippant responses or under‑estimating social context harms defence prospects.
Pleading, drafting and interim strategy
– Arrest/bail petitions: emphasise compliance records, absence of incriminating independent evidence (beyond complainant’s statement), and procedural infirmities in seizure. Where material is substantial, early negotiation with authorities for interim conditions (e.g., deposit of registration, supervision) can be pragmatic.
– Quash petitions: useful where there is no prima facie case or where arbitrariness in exercise of regulatory power is established.
– Litigation for enforcement: NGOs and public interest groups can and do file writs to compel state machinery to act; these can be used tactically to force administrative monitoring in recalcitrant States.

Conclusion
Sex selection law in India is defined primarily by the PCPNDT Act and its Rules, with complementary regulation through ART laws where pre‑conception techniques are concerned. For practitioners the issue is rarely abstract: it is forensic, documentary and administrative. Success in prosecution depends on assembling a tight documentary and testimonial matrix (Form F, registers, machine seizure, patient testimony), while a defensible medical practice depends on meticulous compliance, contemporaneous record‑keeping and procedural safeguards against unlawful inspections and seizures. Sakshi v. Union of India remains the lodestar: the judiciary will support robust enforcement to protect the sex ratio, but courts will also require that enforcement itself follow fair and predictable procedure. In practice: prevent by compliance; prosecute with evidence; defend by attacking proof, procedure and motive.