Beyond the Verdict: Pointing the Issues Relating to Antenatal Gender Revelation in Bangladesh
by Md RaisuL Islam Sourav
INTRODUCTION
In a 2024 decision, a divisional bench of the High Court Division (HCD) of the Supreme Court of Bangladesh has imposed an embargo on prenatal sex detection in Bangladesh in order to prevent gender biased sex identification and protect unborn babies and pregnant women. The court verdict restricting gender revelation before birth triggered broader attention among the physicians and the larger community as well in Bangladesh. The HCD took a nuanced approach and directed the authorities concerned to adhere to the guidelines prepared by the Directorate General of Health Services (DGHS) titled ‘National Guideline for the Prevention of Son Preference and the Risk of Gender- Biased Sex Selection, 2022’. The guideline discouraged disclosure of foetal gender identification for non-medical or social reasons, but they can detect and reveal the sex for the treatment of the foetus.
However, it is not clear what ‘discourage’ means in this context. Also, the consequence of non-compliance of the guideline is not understandable as jurisprudentially only parliament can inflict punishment or suggest penalty for breach of a law. Nonetheless, it is apparent that the court does not completely ban it but rather restrict it for non-medical or social purposes. Before this judgment declared in the Ishrat Hasan vs Bangladesh represented by the secretaries to the ministries of health, women and children affairs and social welfare affairs, directorate generals of health services, family planning, department of women affairs and the national institute of population research and training, it was not illegal to know whether it was a boy or girl by an expecting parent in Bangladesh.
ARGUMENTS FOR THE DECISION
It is principally contended that there are multilayer risks of revealing the sex of an unborn child in our society including foeticide, termination of pregnancy, forceful sex-selective abortion, a health hazard for expectant mothers, potential physical and mental violence, abandonment, divorce, discrimination, vulnerability, gender imbalance or even death.
There is a common perception that Asian countries like Bangladesh, India, Pakistan, China, South Korea, Taiwan etc. prefer male children more than females for various economic, social, cultural and religious causes. As a result, there will be a realistic probability of termination of the antenatal by disclosing the gender before birth although abortion is prohibited in the country. Moreover, some argue development and well-being of the unborn will be hampered if the expecting mother goes under severe physical and mental torture for a boy from her family and society. It also evidently violates the right to life, right to health and dignity enshrined in the constitution of the country.
CAN THIS VERDICT PREVENT GENDER DISCRIMINATION IN BANGLADESH?
Now, the question is, can the prohibition or ‘discouragement’ of disclosure of the sex of unborn babies for non-medical reasons address the above concerns of gender inequality and imbalance, women’s emancipation, torture, inequality, discrimination, right to life, health and dignity etc.? Those types of measurements may be regarded as an easy and temporary solution but may not be the effective or humane attitude to boost the livelihood of our mothers and daughters. There is very limited proof that bans/restrictions have a bigger impact. On the contrary, measures to change societal norms are effective at enhancing gender equity, thereby reducing the demand for sex identification and selection.
Mere nondisclosure of the gender of the foetus cannot prevent the risk of maltreatment towards unwanted girls and their mothers in the household. Even before the evolution of technologies to detect the sex of a foetus, the imbalance in ratios was attributed to the killing or neglect of female infants. Furthermore, there will be rise of several by-lanes to avoid the direction of the court. Non implementation of law is the most obvious reason of failure in Bangladesh and perhaps that is why the court took a cautious tactic despite having a strict anti-abortion law. Albeit it is not certain whether the present verdict outlines anything about sex selection too. With the massive advancement of technology, nowadays it is possible to select the sex at the time of conception and during pregnancy. Additionally, who will be responsible for the contravention of the guideline? Shall a pregnant lady who undergoes a sex identification be penalized? In consequence, a woman may be penalized for her family if she does have the test forcibly.
It is also apprehended that the poorer will be more marginalized through this intervention as affluent sections of the country may fly overseas like Singapore, Thailand, and Dubai where neither abortion on prenatal gender identification is illegal to get gender determination tests and, if required, a medical termination of pregnancy. Henceforth, the restriction could inadvertently force the underprivileged to explore unsafe and potentially more costly illicit avenues for sex identification due to lax strict enforcement.
LESSONS LEARNED FROM INDIA
The Indian Supreme Court took an identical position to prohibit antenatal sex detection in 2001 and directed to strengthen their prevailing law which was also referred to in the HCD in the present case. Subsequently, the Indian Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act of 1994 was amended and renamed as the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act) to forbid sex selection before and after conception and control the use of prenatal diagnostic practises for detection of certain aberrations.
However, the Indian court places the onus upon the parliament, whereas ours preferred the bureaucracy! Bagging success in a sensible matter like this through a DGHS guideline will obviously arise many complex legal questions. Nonetheless, India also couldn’t bring the benefit of their law to home in this regard. There are still high gender imbalance, discrimination, inequality, and vulnerability in Indian society today due to non-eradication of co-factors. Beyond discouragement or legal measures, a range of other holistic initiatives can decrease son preference and sex detection from the society. Major political and legal reform to alter patriarchy and establish equality among all genders; broaden the engagement of women with economic activities and providing financial incentives; equivalence in employment, income and property enjoyment; political and social efforts to alter present gender norms; civil society and media advocacy etc. are mentionable among them.
THE COMPROMISE OF PATIENTS’ AUTONOMY
Now, if we come to some other legal philosophical questions, then we can see the doctor-patient relationship has transformed in the present era from ‘doctor knows the best’ trend to valuing patient’s autonomy which is now widely practiced as a core principle of medical ethics. Therefore, a medical practitioner who declines to disclose satisfactory data to the patient can be found negligent, or ultimately responsible for assault in developed jurisdictions. Then how can we define value for the patient’s autonomy in the prenatal cases? Value for the patient’s autonomy comprises acknowledging the patient’s right to their own values, preferences, interests and plans whether those are sensitive to the society.
Refusing information about foetal gender to check the prospect of an abortion implies a projection about what will be done based on the information given. Is it possible to predict everybody’s preferences? Hence, a wholesale policy of non-revelation will dishearten even those who would never consider having a termination.
Additionally, it is reasonable to assume a correlation between an unmet strong sex preference that has not been satisfied and a higher risk of perinatal depression. Therefore, informing the gender of the foetus before the birth could facilitate a period of adjustment, reducing the emotional strain faced post delivery. Also, in the sole situation of gynaecological care, non-disclosure could lead to impressions of powerlessness and resentment, impacting both the pregnancy and the labour negatively. It cannot be denied that in some cases, revelation of the gender of the foetus may be beneficial for the upcoming parent and eventually for the child as well.
CONCLUSION
The verdict triggers a fundamental question about the complicated balance between preventing projected harm and respecting a patient’s autonomy. The feasibility and effectiveness of such medical measures warrant thorough consideration. A more profound societal shift, encompassing legal, political, and cultural reforms, holds the key to addressing the complex web of issues surrounding gender inequality and sex identification and selection.
In the pursuit of a more equitable and inclusive society while this year’s Women’s Day also inspires inclusion, it is imperative to move beyond mere prohibitions and encourage a comprehensive approach that tackles the root causes of these challenges. In navigating the contours of prenatal sex detection, our focus should extend beyond legal measures and delve into transformative initiatives that foster understanding, equality, and empowerment, thereby fostering a more just and compassionate society for all.
ABOUT THE AUTHOR
Md RaisuL Islam Sourav is a Doctoral Researcher at the School of Law, University of Galway, Republic of Ireland, an Associate Professor of Law (on leave) at Dhaka International University, Dhaka, Bangladesh and an Advocate (Lawyer) at the Supreme Court of Bangladesh. He holds a Master’s Degree in International Energy Law and Policy from the University of Stirling in the UK. He was a recipient of the prestigious British Chevening Scholarship in 2017-18. RaisuL regularly writes in academic journals, blogs and newspapers, and presents his research in reputed academic conferences.
He can be reached at M.SOURAV1@universityofgalway.ie or through his X handle: @RaisuLSourav
