[PCPNDT Act] Age Restriction Of 35 Years For Conducting Pre-Natal Diagnostic Tests Valid? Supreme Court Seeks Centre's Response

On 17.10.2022, a Bench comprising Justice S.K. Kaul and A.S. Oka issued notice in the petition restricted to the aforesaid aspect. The petitioner-in-person, Ms. Patel had apprised the Bench that much water has flown since her petition was filed and amendments have been made, but urged that the issue of age restrictions persists and needs the Court’s consideration.

On Monday, the Counsel appearing for the Union Government implored the Bench to grant it some time to file the counter affidavit confined to the aspect on which notice was issued. Acceding to the Counsel’s request, the Bench dictated -

“...(Counter Affidavit) be filed within 4 weeks as prayed for. Rejoinder, if any, we filed within 2 weeks thereafter.”

The matter has been directed to be listed after 8 weeks.

"Pre-natal diagnostic test" refers to ultrasonography or any test or analysis of amniotic fluid, chorionic villi, blood or any tissue or fluid of a pregnant woman or conceptus. Section 4 of the PCPNDT Act provides for regulation of pre-natal diagnostic techniques. Pre-natal diagnostic techniques can only be conducted for the purposes of detection of any of the following abnormalities: (i) chromosomal abnormalities; (ii) genetic metabolic diseases; (iii) haemoglobinopathies; (iv) sex-linked genetic diseases; (v) congenital anomalies; (vi) any other abnormalities or diseases as may be specified by the Central Supervisory Board.

It further 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, namely:—

(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.

The petitioner had relied on the judgment of the Supreme Court in X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi to raise the present challenge. In X v. Principal Health and Family Welfare Department, Govt. of NCT of Delhi the Supreme Court had held that all women are entitled to safe and legal abortions and that there is no rationale in excluding unmarried women from the ambit of Rule 3B of MTP Rules which mentions the categories of women who can seek abortion of pregnancy in the term 20-24 weeks. However, the Apex Court had clarified that nothing in the judgment must be construed as diluting the provisions of the PCPNDT Act.

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