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.
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