MD Raisul Islam Sourav, (Doctoral Researcher, School of Law, University of Galway, Ireland and Associate Professor of Law, Dhaka International University, Dhaka, Bangladesh), M.SOURAV1 universityofgalway.ie

Introduction

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 in 2024. The HCD directed the hospitals, clinics, and administrative authorities to follow the National Guideline for the Prevention of Son Preference and the Risk of Gender-Based Sex Selection, 2022 prepared by the Directorate General of Health Services (DGHS). The guideline discouraged disclosure of foetal gender identification for non-medical or social reasons, but only for the treatment and welfare of the foetus.

Before this verdict, it was noted that in Bangladesh, expectant parents were not prohibited from knowing the gender of the fetus.

This blog article argues that the verdict raises concerns about the balance between preventing projected harm and respecting individual autonomy. The blog recommends that more profound societal shift, encompassing legal, political, and cultural reforms hold the key to addressing the complex web of issues surrounding gender inequality and sex selection in Bangladesh.

The context of prenatal sex detection in Bangladesh

It is principally contended that there are multilayer risks of revealing the sex of an unborn child in Bangladeshi society including foeticide, termination of pregnancy, forceful sex-selective abortion, potential physical and mental violence against expectant mothers, 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 pregnancy by disclosing the gender before birth although abortion is prohibited in the country. Moreover, some argue that the development and well-being of the unborn will be hampered if the expecting mother goes under severe physical and psychological abuse to give birth to a boy from her family and society. Proponents also claim that it evidently violates the right to life, right to health and dignity enshrined in the constitution of Bangladesh. 

Nevertheless, all these disgraceful treatments happen because of deeply entrenched discrimination and injustice against women within the social, cultural, political and economic contexts such as limited access to assets, lack of financial assistance for women, reduced scope  involved in decision making and leadership roles for women etc. Therefore, promoting gender equality in all spheres of society in Bangladesh and prioritisation of women's participation in economic engagement are essential to ease the obstacles and ensure equality.

Can this measure 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, torture, discrimination etc.? Those types of measurements may be regarded as an easy and temporary solution as this approach of the court focuses only on controlling access to information, rather than challenging the underlying discriminatory attitudes that lead families to prefer sons, and it does not promote long-term cultural change to the society.

As a result, it may not be the effective or humane attitude to boost the empowerment of women in Bangladesh. Evidence supporting the effectiveness of bans or restrictions on prenatal sex detection is minimal. Instead, efforts focused on transforming societal attitudes have shown greater success in advancing gender equality and decreasing the desire for sex-based identification and selection.

Mere nondisclosure of the gender of the foetus cannot prevent the risk of maltreatment towards unwanted girls and their mothers. Even before the evolution of technologies to detect the sex of a foetus, the imbalance in population ratios was attributed to the killing or neglect of female infants.

Furthermore, there will be a rise of several by-lanes to avoid the direction of the court. Non-enforcement of law is a common challenge in Bangladesh and perhaps that is why the court further imposed restrictions on prenatal sex detection despite having a strict anti-abortion law in the country. Additionally, there is a question of  who will be responsible for the contravention of the guideline? Shall a pregnant woman who undergoes a sex identification due to the pressure of her family be penalized?

It is also apprehended that lower-socio economic groups may be more marginalized through this intervention as they will possibly resort to unsafe and costly illicit means for sex identification due to the lack of monitoring and proper enforcement of law. On the contrary, wealthy people of the country can travel to countries like Singapore, Thailand, and Dubai, where abortion based on prenatal gender identification is not illegal. They can get gender determination tests there and, if needed, terminate the pregnancy. Hence, merely restricting access to technologies and services without confronting the social norms and institutions that govern their use will not achieve success in promoting equality and empowering women in the country.

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 sufficient data and communicate to the patient clearly can be found negligent, or ultimately responsible for assault in developed jurisdictions. Value for the patient’s autonomy comprises acknowledging the patient’s right to their own values, preferences, interests and plans regardless of whether those are sensitive to the society.

The World Health Organization (WHO) also recognizes each individual the opportunity to exercise autonomous reproductive decisions. The WHO emphasizes the human rights of people (i.e. people with disabilities, indigenous peoples, ethnic minorities, people living with HIV, and transgender and intersex people) including individual’s autonomy, non-discrimination, personal dignity and free, full and informed decision in accessing health services which are central to  medical ethics as well. Medical ethics stipulate health-care practitioners are obligated to deliver precise and comprehensible information, using language and techniques that are easily understood by the client, alongside appropriate, non-coercive counselling, to enable complete, voluntary, and informed decision-making. Further, it confirms the protection and promotion of the autonomy of pregnant women in decision making about the management of pregnancy.

Besides, the International Conference on Population and Development acknowledged the basic right of all couples and individuals to freely and responsibly determine the number, spacing, and timing of their offspring, as well as to access the information and resources necessary for this purpose, and to achieve the highest standard of sexual and reproductive health.

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 blanket policy of non-disclosure will affect even those who would never consider having a termination of pregnancy.

Additionally, it is likely that when someone has a strong preference for a specific sex that is not fulfilled, they may face 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, specifically in gynaecological healthcare settings, 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.

Way forward

Strengthening the enforcement of law against gender-based violence, reform of judicial systems to ensure just disposal, enlarging social welfare programmes and services for women, expansion of women’s participation in political process including leadership and decision making are key to ensure equality in the country. Underprivileged classes including Dalits, hijras, fisher-folk, sex workers, ethnic and religious minority women must be equally integrated into policy making and State development frameworks.

Moreover, broadening support services like legal aid, safe housing, medication and counselling services for survivors can contribute to mitigate the existing gaps. Additionally, improvement in access to maternal and reproductive health services are also significant to overcome the present barriers.

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, 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.