Beyond the Gavel: The Twists of Prenatal Sex Detection

 In a recent decision, a divisional bench of the High Court Division (HCD) has imposed embargo on pre-natal sex detection in Bangladesh in order to prevent gender biased sex identification and protect unborn babies and pregnant women. The judgment triggered broader attention among the physicians and the larger community as it promulgated before the International Women’s Day 2024. 

Most news outlets and international agencies circulated that the HCD banned gender detection of fetuses in the mother's womb, but very few reported that it takes a nuanced approach and directed the authorities concerned to adhere to the guidelines prepared by the Directorate General of Health Services (DGHS). Those guidelines discouraged the disclosure of fetal gender identification for non-medical or social reasons, but they can detect and reveal the sex for the treatment of the fetus. 

So, it is not clear what discouraged means in this context until we get a detailed judgment and link it with the National Guideline for the Prevention of Son Preference and the Risk of Gender-Based Sex Selection, 2022 of the DHGS thoroughly. We also do not know the consequences of noncompliance yet as only parliament can inflict punishment for the breach of this law. Nonetheless, it is presumed from the statements of the DGHS’s lawyer that the court does not completely ban it, rather restrict it for non-medical or social purposes. Before this, it was not illegal to know whether a parent is expecting a boy or girl in Bangladesh. 

Why take such measures?

It is contended that there are multilayer risks of revealing sex of an unborn child in our society including feticide, termination of pregnancy, forceful sex selective abortion, health hazard for expectant mother, 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 a male child more than female for various economic, social, cultural, and religious reasons. Thus the probability of termination of the antenatal due to the disclosure of the gender before birth is very real, even if abortion is illegal in this country. The development and wellbeing of the unborn may also be hampered, if the expecting mother goes under severe physical and mental torture from her family to give birth to a boy. It also violates the right to life, right to health and dignity enshrined in the constitution of the country.  

Can this really prevent any gender-based violence?

Now, the question is, can the prohibition or “discouragement” of this disclosure of the sex of unborn babies for non-medical reasons address the concerns of gender inequality and imbalance, women emancipation, torture, inequality, discrimination, right to life, health and dignity, and more? 

Such measures may be regarded as an easy and temporary solution and an ineffective or inhumane attitude to boost the livelihood of our mothers and daughters. There is very limited proof that bans or restrictions have an 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 fetus 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 fetus, the imbalance in ratios was attributed to killing or neglecting female infants. Furthermore, there will be a rise of several by-lanes to avoid the ruling of the court. 

Non-implementation of law is the most obvious reason for 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 advancement of technology, 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? The woman may be penalized for something forced on her by her family.

It is also supposed that the poor will be more marginalized through this intervention as affluent sections of the country may fly overseas like Singapore, Thailand, Dubai where neither abortion nor pre-natal gender identification is illegal. Henceforth, the restriction could inadvertently force the underprivileged to explore unsafe and potentially more costly avenues for sex identification. 

No results for India

Indian Supreme Court took an identical position to prohibit antenatal sex detection in 2001 and directed to strengthen their prevailing law. 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 to control the use of pre-natal diagnostic practises for detection of certain aberrations. 

The Indian court placed the onus upon the parliament whereas ours preferred bureaucracy. Nonetheless, India also couldn’t benefit from their law. There is still a high gender imbalance, discrimination, inequality, vulnerability prevalent in Indian society today. 

Beyond discouragement or legal measures, a range of other holistic initiatives can decrease male preference and sex detection in society. Major political and legal reform to alter patriarchy and establish equality among all genders; broadening the engagement of women with economic activities and providing financial incentives; establishing equivalence in employment, income, and property enjoyment; political and social efforts to alter present gender norms; societal and media advocacy etc, are mentionable among them.

What about patient autonomy?

A medical practitioner who declines to disclose satisfactory data to the patient can be found negligent, or ultimately responsible for assault in developed jurisdictions as valuing a patient’s autonomy is now a core principle of medical ethics. So how can we define value for the patient’s autonomy in the pre-natal cases? Value for the patient’s autonomy comprises acknowledging the patient’s right to their own values, preferences, interests, and plans, irrespective of them being sensitive to society. Refusing information about fetal gender to check the prospect of an abortion implies a projection about what will be done based on the information given. It is not possible to predict everybody’s preference.  

Additionally, it is reasonable to assume a correlation between unmet strong sex preference that has not been satisfied and a higher risk of perinatal depression. Therefore, informing the gender of the fetus 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 fetus may be beneficial for the upcoming parent and eventually for the child as well. 

The verdict triggers a fundamental question about the complicated balance between preventing a 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 pre-natal 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.

Published in the Daily Samakal as Sub-editorial on 9 March 2024 at page 4.

Published in the Dhaka Tribune as Op-ed (Long Form) on 20 March 2024 at page 5.

Published in The Business Standard as Lead Thoughts (op-ed) on 29 March 2024.

Legal Analytics: A Transformative Frontier in the Legal Industry

Like any other business, the legal industry also adopts technological advancement like legal analytics which includes modern tech tools e.g Artificial Intelligence (AI), machine learning, natural language processing, pattern matching technology etc. to facilitate the process of getting justice. Albeit historically, law and technology barely collaborated with each other to abolish the misery of litigants. There was a lack of innovation suits with the industry’s demand. It is either because of the incomputable nature of law or lack of in-depth research to make technology compatible with the need of legal services. The trend has been changed especially during the time of COVID19 when intervention of technology in judicial processes got wider acceptance all over the planet.

However, the legal industry cannot resist transforming itself with the massive wave of present AI fashioned legal analytics technologies and rapidly evolving digital society. Widespread use in almost every sector coupled with speedy growth of AI creates abundant opportunities for the justice system across the globe. This latest scientific innovation can bring changes to alter the landscape of traditional legal profession by improving existing approaches to fundamental principles of justice like access to justice, transparency, accountability, fairness and so forth.

Legal analytics denotes the use of computational data analysis tools and techniques to analyse data on the operation of the legal system or on the operations of legal professionals and enterprises. Legal analytics consists of many different approaches, for example some AI systems attempt to predict the outcomes of lawsuit, identify the trend of judgments of a particular judge, analyse evidence, mining data from large chunk of documents etc. A legal analytics device is also competent to take the advisory roles by gathering evidence or estimating recidivism rates based on readily available statistics that saves huge amount of time and labour of judges. In addition, it produces accurate data which if done manually is prone to error.

Today’s tech-savvy clients expect demonstrable efficiency, quality, and better outcomes in their litigation. Therefore, basic computational technologies along with legal analytics like AI powered tools are making their way into the legal industry, from legal aid organizations and courts to large law firms, corporate legal departments, and governments as well. Frequent use of these new devices reduces the workload of lawyers and courts, minimizes the cost of litigants, and undoubtedly saves time of both which also opens a new horizon for the judiciary to become people friendly. Therefore, legal analytics tools become popular all over the world although it is mostly unknown in our judicial system due to massive lack of digitalization.

Law chambers deploy legal analytics tools in their daily functions such as legislation and case law analysis, case management, automated contract review, pleadings and contract drafting to add greater value for their clients. Apart from these, there are some access to justice tools which even support non-lawyers in engaging with legal processes. Modern computational technologies have potentials to automate the delivery of various legal services to wide spectrum of litigants. For basic legal needs, access to legal services might come in the form of smartphones or other devices that can provide consumers with a catalogue of their legal rights and obligations, as well as providing understandings and possible solutions to common daily life law related complex problems.

The installation of legal analytics tools in the legal industry presents several significant challenges concerning legal profession. Among them, whether AI run robot is going to replace human judges and lawyers in court in coming days is the most prominent. It also changes the traditional thoughts, work process and enforcement of existing law and regulation.

Nonetheless, AI possesses inherent threats and potential risks in the legal industry too. There is real danger of providing legal advice, support and guidance by a non-lawyer taking aid from legal analytics tools which may affect the interest and rights of the client. Lawyering is a highly technical, sophisticate and regulated profession by professional body which needs to maintain certain standard and expertise while dealing with a lawsuit in the court whereas the standard of service will certainly not be maintained by non-lawyers that will ultimately damage the rights of litigants. Lawyers have a duty to provide competent representation and clear information to their client which cannot be monitored in this process. Profiling of judges by finding out the trends of judgment is another substantial concern of critics which may create pressure upon the judges to perform their duties fearlessly, thus it may convey negativity about judges to the community.

Apart from the above, incorporating legal analytics technologies into legal profession creates issue relating to ethics and professional integrity, discrimination, bias, data protection, privacy etc. AI tools are usually trained by human with precedents. Consequently, AI is merely trained to think and act in accordance with the previous decisions that may have bias and discriminatory elements in it, which has potential risk of violating principles of fairness and equal protection under the law. Additionally, AI often requires access to sensitive legal data and documents. Ensuring proper data protection and preventing unauthorized access is crucial to maintaining client confidentiality and complying with privacy regulations.

The complexity of cases, and of human nature, causes people to rely on lawyers and judges to include more of an emotional, psychological level of demand. Further, AI does not yet make good use of creative thinking, which is one of the major criteria to be a good legal professional.

Weighing the mentioned points, it is clear that new computational technologies could be beneficial for the industry if we can ensure meticulous innovation and use of it in the judiciary. The notion of rule of law, respect for human rights, non-discrimination, democratic values along with robust ethical guideline and responsible use of these tools must be included in driving force from problem definition, design, data collection, and data cleaning, to training, deploying, monitoring, and maintaining products, platforms, and systems.

There is great impact in what legal analytics tools can and will do to support legal professionals in their work but beside the AI hype, there is yet a necessity to entirely alert why and how to use this technology and what are the integral dangers.

Published in the Law & Our Rights page of The Daily Star on 1 March 2024 at page 10.

Punish the Perpetrator for Publishing Personal Photo

Nicole Fox Fenlon, a 21 years old Irish lady affectionately known as Coco to her friends and family died in January 2018 by suicide after suffering years of awful physical and online abuse. Jackie Fox, her mother exposed that the physical and online bullying had continued even after Nicole had tried to take her own life in 2016. The abusers made fake Facebook pages, they pressed her all the time through Snapchat, WhatsApp and Messenger to go and hang herself. They even sent her videos of a noose, showing how to hang herself. The abusers used online platforms because they knew they would get away with it that way as there was no law to prevent and penalise online harassment then. As a result, Jackie converted her unbearable grief into changing the laws around online harm and fighting tirelessly to legislate a stringent legislation to criminalise persistent online abuse that could better protect others from online bullying, abuse, digital harassment, cyberstalking and revenge porn.

Subsequently, the Irish policy makers have enacted a new law namely the Harassment, Harmful Communications and Related Offences Act in 2020, otherwise known as Coco’s law to address a number of emerging online offences including: taking and distributing intimate images online without consent; online or digital harassment; a specific offence of stalking; an expanded offence of sending, threatening or indecent messages; and revenge pornography after years of campaign and struggle of Jackie Fox. Albeit, this new legislation was not there to safeguard Nicole Coco but it will shield others’ lives and families from having to suffer like her.

However, digital harassment like sharing or threatening to share intimate image online without consent is a global concern nowadays particularly after the evolution and popularisation of social and communication media. Almost every day male, female, transgender and children become victim of these crimes in anywhere of the world. There are many offences involved with these incidents i.e blackmailing, sextortion/extortion, fraud etc. The scenario of Bangladesh is not different as the scope and legal framework to deal with digital harassment is still narrow here.

‘I possess your intimate photos/videos and I am going to spread them if you don’t …’ is a common threat for both male and female in Bangladesh. Although incidents of online sexual harassment and/or cyber bullying are hardly reported by victims as it barely brings justice and social stigma along with the fear of victim blaming and character assassination. Limited implementation of existing laws to stop the offenders from engaging in such horrendous activities is another reason to not bring the issue into discussion.

However, there are a number of laws at present in Bangladesh i.e the Nari O Shishu Nirjatan Daman Ain, 2000 (Women and Children Repression Prevention Act); the Information and Communications Technology (ICT) Act, 2006; the Pornography Control Act, 2012 and the Digital Security Act (DSA), 2018 to deal with online harassment to some extent. Nonetheless, none of the above law is comprehensive to adequately address digital sexual harassment in social media and other online platforms. Like section 9A of the Women and Children Repression Prevention Act, 2000 states whoever wilfully snatch the reputation or character of a woman without her consent and by this directly induce the woman to commit suicide shall commit an offence of inducing suicide and he shall be punished with imprisonment which may extend to ten years and also liable with fine. The law does not specifically mention about digital harassment or online sexual violence like: sexting, online stalking, revenge porn or spreading intimate image online. It is also essential to train the staff working for the National Helpline for Violence Against Women and Children (109) to handle digital sexual crimes sensibly.  

Section 57 of the controversial ICT Act provides that anyone can be punished for any false and obscene posts online for a maximum of 10 years of imprisonment and maximum fine of taka 1 crore although it does not define the term ‘obscene’. The Pornography Control Act, 2012 makes it a crime if anybody entices any woman, man or child to participate in producing pornography and captures still images or videography of that with or without his knowledge under section 8(1). Furthermore, the Act has provision to penalize a person who harms the social or personal dignity of another person through pornography, or extorts money or any other benefit through fear, or mentally tortures through pornography recorded knowingly or unknowingly of that person (S. 8(2)). Distribution of pornography through internet, website, mobile phone or any other electronic device is also prohibited under section 8(3) the mentioned Act. Nevertheless, the Act focused only on pornography, not even revenge porn or other aspects of online sexual harassment. Again section 29(1) of the debated DSA merely penalizes dissemination of defamatory contents on online platforms whereas there is no mention about sharing or threat to sharing intimate photos or videos.

However, Coco’s law aims to prosecute the evolving forms of digital harassment by amending the previous concepts and provides anonymity to the victims of those crimes. Consequently, sharing or threatening to share intimate image online without consent and with or without intent to cause harm to the victim is a now a crime in Ireland. Intimate image denotes to a person’s underwear covered or not intimate part of body like genitals, buttocks, anal region and breasts, or a person who is nude or someone engaged in sexual activity. It is irrelevant whether the person in the image willingly took it and sent it to someone they trusted, if it is then shared with others without consent. It also includes a picture taken or content recorded without the knowledge of the person in the image. The punishment for this offence is up to seven years in prison and an unlimited fine. The law also recognizes it a crime which is often referred to as a ‘deep fake’ i.e send an intimate image purporting or claiming to be of another person even if the image is not actually of them.

The recording, distribution or publication of intimate image is also a punishable crime under the law, even if the person who records, distributes or publishes the image without consent, does not need to have intended to cause harm. It will be sufficient that the taking, recording or distribution of the intimate image seriously affected the other person’s peace and privacy or caused them harm, alarm or distress.

Now, the question is how long shall we wait for a Coco’s law in Bangladesh? Aren’t we hearing the misogyny of hundreds of thousands of victims of online sexual abuse and/or exposed intimate photo/video victims or shall we waiting for another Nicole Coco to dedicate her life to catch the attention of the legislators? In light of the sheer volume of digital sexual harassment in virtual world, a proper legislative mechanism should be considered to address the issue urgently.

It is true that there is no shame in someone's body rather it is reprehensible to threaten people by demonising their personal lives. However, this is high time to build safer digital Bangladesh by firstly recognizing these common offences happened on online platforms regularly and enact a new legislation like Coco’s law containing provisions penalizing all new forms of digital sexual harassment and a regulatory framework for prevention of these crimes from being circulated on social and communication media platforms. Moreover, the law has to create an easy and accessible complaint mechanism for all the victims of non-consensual distribution of private and/or intimate images maintaining anonymity. Additionally, the law should insert provision for conducting the proceedings in camera and ensuring that the victims do not have to undergo additional harassment from state institutions. Otherwise, the offenders will get immunity in absence of a concrete law and turn the virtual world of digital Bangladesh into a heaven for digital sexual harassment.

Published in the Desh Rupantor as Sub Editorial on 18 March 2023 on Page 4.

Published in the Dainik Bangla as Sub Editorial on 21 March 2023 on Page 8.

Published in the Progress Magazine as an Article in the November 2023 Issue.