Determining sex of unborn child encourages discrimination: HC
The process of determining the sex of a child in the womb encourages institutionalized discrimination. This leads to structural inequality and demographic imbalance, the High Court said in a judgment.
This was stated in the judgment of a writ petition seeking a direction to stop the test of gender identification of the unborn child. The judgment has also directed the health secretary to create a database within six months to store the diagnostic reports of premature babies and update them regularly.
Lawyer Ishrat Hasan, who applied for the writ, said that this database has been asked to be created and updated to prevent identification of the gender identity of the unborn child.
The Supreme Court lawyer filed the writ petition six years ago. On February 3, 2020, the High Court ruled on the preliminary hearing. After the final hearing, the High Court bench consisting of Justice Naima Haider and Justice Kazi Zeenat Haque passed the judgment on February 25, 2024 with observations and directions of the High Court. Lawyer Ishrat Hasan said that he received the full verdict of 9 pages after more than a year on Monday.
According to the judgment, the practice of determining the sex of a child before birth undermines social stability and promotes the spread of gender imbalance and violence and discrimination against women. Such practices adversely affect the physical and mental health of pregnant women. The state is constitutionally bound to prevent and prohibit such socially destructive activities.
Stating that Articles 27 and 28 of the Constitution guarantee equality under the law and prohibit discrimination on the basis of sex, the judgment said that the process of determining sex before birth encourages institutionalized discrimination. This creates structural inequalities and demographic imbalances. Allowing such practices is contrary to the basic directives of the Constitution, which seeks to eliminate gender-based discrimination and ensure protection of vulnerable and vulnerable groups.
The High Court also said that prenatal gender identification directly encourages sex-selective abortion, discrimination against the girl child, demographic imbalance and violence against women. Such practice is against the fundamental right to life, equality and non-discrimination guaranteed in Articles 18, 27, 28, 31 and 32 of the Constitution.
Earlier, it was asked why in the High Court's rule, policies or guidelines should be formulated to prevent gender identification of unborn children and every diagnostic report database of unborn children managed by registered hospitals, diagnostic centers and other public and private institutions should be stored and regularly updated.
In the rule hearing, it was informed through an affidavit from the Department of Health, that a policy titled 'National Guidelines Regarding Parental Gender Selection' has been prepared, which was approved by the relevant authorities on February 20, 2023.
A health department lawyer said at the time that the policy states that individuals and medical facilities cannot disclose their ability to perform fetal gender identification tests by means of form, gesture, image, sign or advertisement. It has come to the policy that the organizations or individuals who have the capability of gender identification test of the unborn child, will store the related information in the database (database).
Absence of an effective database system renders the objective of regulating prenatal gender identification ineffective and unenforceable. The judgment said, fundamental rights cannot be protected by merely approving guidelines or policies without digital implementation. The main complaint of the writ petitioner remains unsettled.
The High Court has directed the Health Secretary to create a database to store every diagnostic report of premature babies conducted in registered hospitals, diagnostic centers and other public and private institutions and update it regularly. The directive has been asked to be implemented within six months from the date of receipt of the copy of the judgment.
Lawyer Ishrat Hasan told Prothom Alo that as a result of the verdict, no hospital, diagnostic center and laboratory will be able to reveal the gender identity of the unborn child by any means including basic, report, signs. According to the judgment, only policies are not enough, there is a need for monitoring in this regard. He directed the health secretary to create a database to prevent disclosure of the child's gender identity and update it regularly. The judgment mentions that the matter will be under ongoing supervision, so that the court can also supervise the implementation of the directive in future.
