Woman Cites Abortion Rights Judgment To Challenge Age-Restriction In PCPNDT Act; Supreme Court Issues Notice

The Supreme Court will examine the validity of the age restriction of 35 years for conducting pre-conception and pre-natal diagnostic tests.

The court issued notice in a petition filed in 2019 by a lawyer Meera Kaura Patelwho contended that 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 is a restriction on the reproductive rights of women. The PCPNDT Act prohibits pre-natal sex selection. The law was made to curb the evil of female foeticide.

The petitioner referred to the recent judgment of the Supreme Court in X vs. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi 2022 LiveLaw (SC) 621- which upheld the rights of women to make reproductive choices-  to contend that the provision would not stand judicial scrutiny.

The bench of Justices Sanjay Kishan Kaul and Abhay S. Oka issued notice restricted to the aforesaid aspect.

Pre-natal diagnostic tests

"Pre-natal diagnostic test" means 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.

SC's Abortion Judgment

In X vs. Principal Secretary, 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 Court had clarified that nothing in this judgment must be construed as diluting the provisions of the PCPNDT Act.

Case: Meera Kaura Patel vs Union of India | WP(C) 1327/2019

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