PC-PNDT Act | Supreme Court Asks Central Board To Examine Challenge To Provision Barring Women Under 35 From Pre-Natal Diagnostic Tests

The Supreme Court yesterday disposed of a 2019 case challenging the age restriction of 35 years in Section 4(3)(i) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 as an arbitrary restriction on the reproductive rights of women.

A bench of Justices Surya Kant and Joymalya Bagchi directed that the entire pleadings in the matter be treated as a representation before the Central Supervisory Board (constituted under the 1994 Act) for its expert consideration.

The order was dictated thus:

"We find that the writ petition essentially raises issues that can be effectively addressed by the domain experts. While the petitioner may not be in a position to make out a case of discriminatory or arbitrary treatment to women below 35 years of age, or a violation of rights perceived to be guaranteed under Articles 14, 15 and 21 of the Constitution, nevertheless, it seems to us that the issues raised by the petitioner do require consideration by the expert body. Consequently, we dispose of this writ petition with a direction to the Central Supervisory Board constituted under the 1994 Act to treat the entire pleadings as a comprehensive representation-cum-material for their expert consideration."

The Court also expressed that if a case has been made out by the petitioner for any changes to the existing law, the competent authority may consider acting on it in public interest.

"It goes without saying that if the petitioner has made out a case requiring any amendment/modification/clarification of existing rules/Act, the competent authority may consider to do so in public interest."

To recap, the PC-PNDT Act prohibits pre-natal sex determination. It was enacted inter-alia to curb the evil of female feticide. In 2019, the present case was filed by Advocate Meera Kaura Patel assailing Section 4(3) of the Act, which provides that no pre-natal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied for reasons to be recorded in writing that any of the following conditions are fulfilled:

(i) age of the pregnant woman is above thirty-five years;

(ii) the pregnant woman has undergone of two or more spontaneous abortions or foetal loss;

(iii) the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals;

(iv) the pregnant woman or her spouse has a family history of mental retardation or physical deformities such as, spasticity or any other genetic disease;

(v) any other condition as may be specified by the Central Supervisory Board.

Yesterday, the petitioner, appearing in person, contended that making pre-natal genetic testing available only to women aged 35 years or above, or with a family history of genetic disorder, is arbitrary in nature and does not satisfy the tests of Article 14 and 21. She argued that the provision deprived younger pregnant women of timely and potentially life-altering information about fetal abnormalities, which amounts to infringement on their right to health and informed reproductive choice.

During submissions, she also emphasized that genetic disorders and congenital anomalies occur across all maternal phases, and not just above 35 years of age. Relying on empirical studies, she contended that 57.1% anomalies occurred in women below 30 yrs of age. Insofar as the Union relied on Form F of the Rules, the petitioner claimed that the indicators are only qua ultrasound exams.

"There are a lot of studies which point out that it is not necessary for a woman to have family history, it is not necessary that a woman who has undergone two spontaneous abortions would have a 3rd child who is unhealthy. Risk is always there. It does not depend on whether a woman is above 35 years or below. This condition, a woman under 35 has to meet these 4 additional criteria without which she would not be allowed to have access to medical diagnostic care. Pregnant women is a homogenous group. Women below and above 35 yrs cannot be treated differently", the petitioner urged.

The Union, through Additional Solicitor General Aishwarya Bhati, explained that women under 35 years of age are not completely barred from accessing diagnostic facilities. They can access pre-natal diagnostic techniques if they meet conditions specified in Section 4(3) of the PC-PNDT Act read with Form F of the Rules. The ASG pointed out during her submission that Form F contains 23 independent indications that allow women below 35 years of age to access pre-natal diagnostic testing.

"Women above 35 yrs - the pregnancies are supposed to be high-risk pregnancies. Therefore, age itself is an indicator there. But that is in addition to other indicators...it's not a restrictive provision that women below 35 are not allowed access to this. This is regulated for the reason that there is a chance of misuse. If you are a woman above 35 years, that is an indicator itself. But that is just one of the indicators. If you have any of the other 4 indicators mentioned in the section or the 23 indicators mentioned by the experts...it's really to include the women and give them the full benefit", the ASG urged. 

Hearing the parties, Justice Kant posed to the ASG if a revised Form F with some clarification can be issued, as there is a chance of misconstruction. "This is an area that only experts use. These are forms that have to be signed by radiologists, gynaecologists, etc. These are doctors, they know the implications", the ASG replied.

Notably, at one point, the petitioner referred to the Supreme Court's judgment in X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi, which upheld the rights of women to make reproductive choices, to contend that the impugned provision would not stand judicial scrutiny. In response, Justice Bagchi opined that right to reproductive autonomy is a graded right (under Medical Termination of Pregnancy Act) and right of access to diagnostic facilities a regulated one (under PC-PNDT Act).

"Right to reproductive autonomy is governed by the Termination of Pregnancy Act. It's not governed by this Act. And you have an asymmetrical autonomy here. It's a graded autonomy. Upto certain weeks, you have full autonomy. Then you have a guided autonomy. And in certain other cases beyond 24 weeks, it is the judicial intervention which has permitted the autonomy to be preserved. This is a completely different area. Here is an interface between prevention of a crime, which is rampant, because sex-selection/sex-determination becomes intrinsically connected with certain diagnostic procedures. Therefore, your right to access to diagnostic facilities, which is a part of your Article 21 rights, is regulated to a certain extent."

The judge also underlined that for exceptional situations, one can approach High Courts under Article 226. Ultimately, the matter was disposed of with a direction for consideration of the issues raisedby the Central Supervisory Board.

Case Title: Meera Kaura Patel v. Union of India, WP(C) 1327/2019 

Citation : 2025 LiveLaw (SC) 1152

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