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Dhaka Tribune

Beyond the gavel: The twists of prenatal sex detection

What does discouraging the identification of a fetus' sex achieve?

Update : 20 Mar 2024, 10:25 AM

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.  

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

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. 

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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.

The verdict triggers a fundamental question about the complicated balance between preventing a projected harm and respecting a patient's autonomy

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.

Raisul Sourav is a Doctoral Researcher in Law at the University of Galway School of Law, Republic of Ireland; an Associate Professor of Law at Dhaka International University; an Advocate at the Supreme Court of Bangladesh and a rights activist. 

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