Does the ban on fetal gender detection give birth to new issues?

Illustration: TBS

In a recent decision, a divisional bench of the High Court Division (HCD) has imposed an embargo on prenatal sex detection in Bangladesh in order to prevent gender biassed sex identification and protect unborn babies and pregnant women. Before this judgement, it was not illegal to know whether it was a boy or girl by an expecting parent in Bangladesh. 

Although most news outlets, including international agencies, circulated that the HCD has banned gender detection of foetuses in the mother's womb, very few reported that it took 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 disclosure of foetal gender identification for non-medical or social reasons, but they can detect and reveal the sex for the treatment of the foetus. 

So, it is not clear what does discouraged means in this context, until we get the detailed judgment and link it thoroughly with the National Guideline for the Prevention of Son Preference and the Risk of Gender-Based Sex Selection, 2022 of the DHGS. 

Also, we do not know the consequences of noncompliance with the guidelines yet. Nonetheless, it is presumed from the statements of the DGHS's lawyer that the court does not completely ban it, rather restricts it for non-medical or social purposes. 

It is well-known that there are multilayer risks of revealing the sex of an unborn child in our society, including foeticide, forceful sex-selective abortion, health hazards for expectant mothers, potential physical and mental violence, abandonment, divorce, discrimination, 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 female for various economic, social, cultural and religious reasons. As a result, there will be a realistic probability of termination of the antenatal by disclosing the gender before birth, although abortion is prohibited in the country under most situations. 

Moreover, some argue that the development and well-being of the unborn will be hampered if the expecting mother goes under severe physical and mental torture for a boy from her family and society. It also evidently violates the right to life, health, and dignity enshrined in the constitution of the country.  

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, women's emancipation, torture, inequality, discrimination, right to life, health and dignity, etc? 

These types of measures may be regarded as an easy and temporary solution, but may not be effective in boosting the life and livelihoods of our mothers and daughters. 

There is very limited proof that bans/restrictions have a big 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 foetus 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 foetus, the killing of or neglect towards female infants continued unabated. 

Non-implementation of the 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. 

However, it is not certain whether the present verdict outlines anything about sex selection, too. With the massive advancement of technologies like IVF, nowadays, it is possible to select the sex at the time of conception and during pregnancy. 

Also, who will be responsible for the infringement of the guideline? Shall a pregnant lady who opts for a sex identification be penalised? Consequently, a woman may be punished for her family's wishes, if she has the test forcibly.

It is also likely that the poor will be more marginalised through this intervention as affluent sections of the country may fly overseas like Singapore, Thailand, and Dubai, where neither abortion nor prenatal gender identification is illegal. 

Therefore, the restriction could inadvertently force the underprivileged to explore unsafe and potentially more costly illicit avenues for sex identification due to lax strict enforcement. 

The Indian Supreme Court took an identical position to prohibit antenatal sex detection in 2001 and directed to strengthen their prevailing law, which was also referred to in the HCD in the present case. 

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 control the use of prenatal diagnostic practises for detection of certain aberrations. 

However, the Indian court places the duty upon the parliament, whereas ours prefers the bureaucracy. Implementing this through a DGHS guideline will obviously raise many complex legal questions. Nonetheless, India couldn't benefit much from their law. There is still a high gender imbalance, discrimination, and inequality in Indian society today. 

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

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 the 'doctor knows the best' trend to valuing patient's autonomy. Value for the patient's autonomy comprises acknowledging the patient's right to their own values, preferences, interests, and plans, irrespective of whether those are sensitive to society. 

Therefore, a medical practitioner who declines to disclose satisfactory data to the patient can be found negligent or ultimately responsible for assault in developed jurisdictions. Then, how can we define the value of the patient's autonomy in prenatal cases? 

Additionally, it is reasonable to assume a correlation between an unmet strong sex preference that has not been satisfied and 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, 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, the revelation of the gender of the foetus 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 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.

Sketch: TBS

Raisul Sourav is a Doctoral Researcher in Law at the University of Galway School of Law, Republic of Ireland. He can be reached at M.SOURAV1@universityofgalway.ie

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.