The High Court has directed the government to create and regularly update a central database of all diagnostic reports of unborn babies conducted at registered hospitals, diagnostic centres and other public and private entities across the country within six months.
The bench of Justice Naima Haider and Justice Kazi Zinat Hoque issued the directive on February 26, 2024 and full text of the verdict was published on Sunday, over two years later, said Supreme Court lawyer Ishrat Hasan, who was the public interest litigation writ petitioner of the issue.
The court also ordered the authorities concerned to submit a compliance report before it after implementing the directive.
The High Court had issued the order while disposing of a rule in the writ petition filed over the failure of the authorities to frame effective guidelines to prevent prenatal gender detection and parental gender selection.
The court observed that prenatal gender detection through ultrasonography and other diagnostic technologies was being misused for sex selection, leading to female foeticide, gender imbalance, discrimination against women and violation of the dignity and right to life of unborn babies and pregnant mothers.
The bench said that although medical technology was intended for lawful diagnostic purposes, its misuse for determining fetal sex encouraged selective abortion and deep-rooted social bias against female children.
The writ petitioner, Ishrat Hasan, who argued before the court that the absence of strict regulatory enforcement, monitoring mechanisms, penal accountability and a central reporting system violated constitutional rights and statutory duties of the state.
The court noted that Article 32 of the Constitution guarantees the right to life and personal liberty, which includes dignity, protection and meaningful existence.
It observed that prenatal gender detection facilitated the selective elimination of female fetuses, directly threatening the right to life of unborn children and reinforcing violence and discrimination against women.
Referring to Articles 27 and 28 of the Constitution, the court said that gender detection institutionalised discrimination even before birth and contradicted the constitutional commitment to equality and non-discrimination.
The bench also said that practices such as sex selection undermined public health, morality and social stability, while contributing to violence against women and demographic imbalance.
The court observed that Bangladesh, as a signatory to international treaties, including the UN Convention on the Rights of the Child and CEDAW, was obligated to eliminate discriminatory practices against women and protect children’s rights.
During the hearing, the Directorate General of Health Services informed the court that after the rule was issued in 2020, a committee was formed in collaboration with UNFPA and a guideline titled ‘National Guideline Regarding Parental Gender Selection’ was approved on February 20, 2023.
However, the court found that although a guideline had been approved, no effective enforcement framework, monitoring system, penalty structure, implementation timeline or digital database had yet been established.
The bench said that mere approval of a guideline without practical implementation could not ensure protection of fundamental rights.
The court further observed that no website, digital portal or central database had yet been developed to monitor diagnostic reports of unborn babies, making the regulatory framework ineffective and unenforceable.
It said that without real-time data tracking, licensing oversight and audit mechanisms, diagnostic centres could continue operating without meaningful supervision.
The High Court directed the authorities to implement the order and said that the matter would remain under continuous judicial monitoring through a ‘continuous mandamus’ to ensure proper enforcement of the directives.
The court in the verdict directed the health secretary to take necessary measures so that hospitals and diagnostic centres strictly follow the guideline that discourages the detection of sex during pregnancy.
Lawyer Ishrat Hasan told New Age that all except some renown private hospital and diagnostic centres in the capital was not maiming the guidelines on ban on disclosure of gender of unborn babies creating gender discrimination.
She alleged that female genders still neglected in Bangladesh.
The Directorate General of Health Services in January 2024 submitted to the High Court a guideline titled ‘National obligation for the prevention of son preference and the risk of gender-biased sex selection, 2022’.
Persons, organisations, genetic counselling centres, genetic laboratories or clinics, having ultrasound machines or imaging machines or scanners or any other technology, capable of determining sex of fetuses should not issue, display, publish, distribute or communicate any advertisement in any form to enable pre natal diagnosis, said the guidelines.
The guidelines said that all generic diagnostic centres and such other organisations must create awareness among parents on gender equality and value of girl children.
