The High Court directed the government to create and regularly update a central database of all diagnostic reports of unborn babies prepared 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, the full text of which was published on Sunday over two years later, said Supreme advocate Ishrat Hasan, who was the public interest litigation writ petitioner on the issue.
The court also ordered the authorities concerned to submit a compliance report to it after implementing the directive.
The High Court issued the order while disposing of a rule over the writ petition filed in connection with 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 had been 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 the medical technology was intended for lawful diagnostic purposes, its misuse for determining foetal 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.
Article 32 of the constitution, the court noted, guarantees the right to life and personal liberty, which includes dignity, protection, and meaningful existence of human life.
Prenatal gender detection facilitates the selective elimination of female foetuses, directly threatening the right to life of unborn children and reinforcing violence and discrimination against women, the court further observed.
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 (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (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 the United Nations Population Fund (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 were yet to be 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 were yet to be 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, saying that the matter would remain under continuous judicial monitoring through a ‘continuous mandamus’ to ensure a 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 renowned private hospitals and diagnostic centres in the capital was not following the guidelines on ban on disclosure of gender of unborn babies creating gender discrimination.
Female gender, she alleged, is still neglected in Bangladesh.
The DGHS 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 foetuses should not issue, display, publish, distribute or communicate any advertisement in any form to enable prenatal 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.
