The High Court Division (HCD) of the Supreme Court of Bangladesh has directed authorities to adhere to guidelines that discourage (without prohibiting) the disclosure of a foetus’s sex for non-medical or social reasons to prevent biased sex determination, and protect unborn babies and pregnant mothers. The verdict triggers fundamental jurisprudential question as to how the guidelines prepared by the Health Directorate (DGHS) will deal with a vital issue like foetal sex determination as it lacks binding force. It also raises concerns about the balance between preventing projected harm and respecting individual autonomy. 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 selection in Bangladesh.
Like other Asian countries, many Bangladeshi families prefer to have male children for various economic, social, cultural and religious reasons. Consequently, the probability of termination of the foetus is higher by disclosing the sex before birth as female, although abortion is prohibited in the country.
There are multilayer risks to revealing the sex of an unborn offspring in a society like Bangladesh including forceful sex-selective abortion. Expectant mothers face potential physical and mental abuse, abandonment, divorce, or even death by male partners and in-laws.
Can the Verdict Prevent Gender Discrimination in Bangladesh?
This judicial pronouncement may be regarded as an easy solution but may not be the efficacious or humane attitude to eliminate gender inequality. This initiative would not be fruitful at enhancing gender equity without emphasizing other initiatives to change societal norms and root causes, and thereby reducing the demand for sex identification and forceful abortion.
Additionally, it cannot prevent the risk of maltreatment towards unwanted girls and their mothers in the household. The higher ratio of male to female citizens was attributed to the killing or neglect of female infants, even before the evolution of technologies to detect the sex in womb.
On the contrary, the implementation of law is a common challenge in Bangladesh and perhaps that is why the court tightened the scope for prenatal sex detection despite having a strict anti-abortion law. The underprivileged will possibly resort to unsafe and costly illicit means for sex identification due to the lack of monitoring of enforcement whereas the affluent sections of the country may travel to where neither abortion nor sex selection are illegal. Nonetheless, the effectiveness of the guidelines is also dubious as it only regards the non-compliance of its provisions by medical practitioners as a professional ethical issue only. Hence, the implementation of the guidelines will be really challenging without any binding legal framework.
Way Forward
In the pursuit of a more equitable society, it is imperative to move beyond mere prohibitions and encourage a comprehensive approach that tackles the root causes behind gender inequality in the country. Promoting gender equality in all spheres of the society in Bangladesh and prioritisation of women’s participation in economic engagement, particularly in employment and access to assets such as real estate and financial assistance are essential to enhance their engagement in the State economy. Acknowledging women’s unpaid domestic labour in the national GDP and advocating for equitable home obligations could be a vital measure. Moreover, facilitating women entrepreneurs and enhancing infrastructure will promote economic inclusion and eliminate son preference from the parents.
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, and the 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, and ethnic and religious minority women must be equally integrated into policymaking and State development frameworks.
Conclusion
Simply discouraging foetal sex identification through executive guidelines is an inadequate attempt that does not confront the entrenched social and economic disparities fuelling gender inequality in Bangladesh. Limiting access to bodily information to prevent anticipated abortions harms individual autonomy as well. Thus, a blanket policy despite having rigorous anti-abortion law also affects people who would never consider abortion. In the absence of legally mandated enforcement and comprehensive socio-economic reforms, the verdict will predominantly be symbolic and ineffectual.
Published on The Oxford Human Rights Hub Blog on 17 February 2025.
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