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CHAPTER 2

Transnational Legal Feminist Approach to Sex-Selective Abortion

In contrast to the universal approach to human rights in Chapter 1, I proposed a context-based transnational feminist legal approach that suggests that we should be open to the possibility that a practice that is discriminatory or otherwise harmful to women’s rights in one country may not necessarily be contrary to women’s rights when undertaken in another country.

In this chapter, I develop a legal framework to evaluate bans on sex-selective abortion that is animated by the principles of the transnational legal feminist approach developed in the prior chapter. This approach to sex-selective abortion is transnational because it is useful to examine bans on sex-selective abortion that exist across multiple jurisdictions. I argue that a country should prohibit sex-selective abortion or sex determination tests only to the extent that women in that society are practicing sex selection in a way that harms other women and girls living in that society. I agree with liberal feminists that prohibitions on sex-selective abortion burden reproductive rights and can have unintended negative consequences like restricting abortion access more generally. However, I argue that the restrictions may be justifiable in certain contexts. It is appropriate to limit sex selection in countries where there is evidence that sex selection is so widespread that it is harming other women and girls. But where such negative consequences from sex selection are not present, then bans serve no purpose in promoting women’s rights.

In the section “Reproductive Rights of Individual Women and Harm to Women and Girls in Society,” below, I develop a legal framework drawing insights from the transnational feminist legal approach proposed in Chapter 1. I explain how my framework builds upon existing feminist and nonfeminist approaches to sex-selective abortion in the section “Ethical and Legal Perspectives on Sex-Selective Abortion.” Next, I provide an overview of “International and Comparative Laws.” I conclude in the section “Operationalizing a Transnational Feminist Legal Approach to Sex Selection” by describing some of the challenges in applying my proposal to sex-selective abortion. I then propose methods to overcome those challenges.¹

Reproductive Rights of Individual Women and Harm to Women and Girls in Society

In Chapter 1, I explained that prevailing feminist legal theories take a universal position on cross-border practices. If a practice is thought to be contrary to women’s equality in one country, feminists (as well as non-feminists) assume it will have a similar impact in another country. In line with this view, liberal feminists take a universal position toward sex-selective abortion—it should not be prohibited in the United States or in any other country. They generally view prohibitions on sex-selective abortion as a burden on a woman’s right to terminate her pregnancy. They refuse to deviate from this view even in countries like India where many women obtain sex-selective abortions to the detriment of other Indian girls and women living in that country.

I agree with the liberal feminist position that restrictions on sex-selective abortion impinge on women’s reproductive liberties. However, unlike the liberal universal feminist position, I argue for a perspective that allows for certain restrictions on sex-selective abortion—for example, restrictions on sex determination tests—if the practice harms girls and women in a particular society. When many women in a country abort female fetuses to give birth to sons, a surplus of men results. An excess of men and shortage of women can have negative consequences for the women and girls in that society.

Indeed, emerging empirical studies about sex selection in India have concluded that a shortage of women is associated with an increase in violence against women. On the other hand, studies suggest that some women are able to marry into higher castes and social classes when there is a shortage of women. I discuss these consequences in greater detail in Chapter 6 when I evaluate the situation in India in light of the legal framework I propose here.

April Cherry, an American law professor, first articulated the need to consider how the practice of sex selection harms women as a group. Cherry states that “[m]y construction of a radical feminist analysis moves away from a view of the procedure as one of individual choice, and acknowledges sex-selection as an issue affecting women as a class.”² While Cherry does not explicitly say so, it seems that she does not propose that sex-selective abortion should be banned, but denying women information about the sex of the fetus could be permissible in certain situations.³ However, she does not go further to develop a framework or a feminist legal approach using those observations. Farhat Moazam also suggests that, in the context of India, a strategy that looks toward and utilizes the power of the state to further a wider goal of public welfare may have a more realistic chance of achieving gender equality than unbound reproductive autonomy.⁴

The approach I propose to sex selection also takes into account harm to women as a group and allows for limitations on individual autonomy if it promotes the well-being of the group. This view draws from the logic of public health regulations. Take the example of regulations on vaccinations for children. Many childhood diseases occur at low rates in the United States because parents are required to vaccinate their children. Some parents think that there are risks associated with vaccines, such as developing autism, and as a result they strongly oppose childhood vaccination.⁵ If only a few parents fail to vaccinate their children, there will likely be no societal impact. However, if many parents refuse vaccinations for their children, then those childhood diseases that are now rare would become widespread again. This would harm the greater good of society. Therefore, to prevent harmful consequences for all children, state laws typically require children entering school to be vaccinated. Similarly, it is appropriate to place limitations on the individual’s right to autonomy if—and only if—sex selection is being practiced in a way that harms women or has the potential to harm women in society as a whole.⁶ Ruth Macklin, a biomedical ethicist, is among the few voices who have also suggested that the harm caused by sex selection should be decided through utilitarian methods rather than abstract thought.⁷

The challenge in operationalizing an approach that takes into account the consequences of a practice on women as a whole is how one determines whether sex selection is being practiced widely and whether it harms girls and women in a society. One way to measure the magnitude of sex selection is by reference to sex ratios in society. The sex ratio (the ratio of boys to girls) is an indicator of the level of sex selection. From looking at the at-birth sex ratios (if most births in the country are properly recorded) or the sex ratio of children (if the birth-recording system is inadequate), we can tell whether or not sex selection is widespread in that society. There is a genre of academic literature that discusses the consequences of imbalanced sex ratios in a society. In the section “Operationalizing a Transnational Feminist Legal Approach to Sex Selection,” I describe several sex ratio theories in greater detail and assess their ability to accurately predict potential consequences of imbalanced sex ratios.

Another difficulty in applying the transnational feminist framework is how one determines when the harm to women and girls in a society is great enough to outweigh the costs. Any method that requires balancing costs and benefits is inherently challenging for the reasons I discuss in “Challenging, Justifying, and Operationalizing a Consequences-Focused Framework.” Notwithstanding these problems, judges regularly articulate and apply balancing tests. Indeed, the Supreme Court of the United States did just that in Whole Woman’s Health, its most recent case on abortion rights. It articulated the “undue burden standard” as a cost/benefit test.⁸ The Court found that requiring doctors who perform abortions to have admitting privileges at local hospitals and requiring abortion clinics to meet the same stringent regulations as those imposed on surgical centers had too great a cost on a woman’s right to access abortion and virtually no health benefit to women.

I call my framework “feminist” because it places women at the center. There are strong voices who oppose sex selection for reasons other than a concern for women’s rights. Some authors believe sex selection should be prohibited because they think it is a slippery slope to other forms of manipulation of the traits of a child. Others oppose sex selection on the grounds that a fetus has the right to life under all circumstances. The framework I propose does not address positions that do not directly take women’s rights into account. My framework is meant to determine whether or not a ban on sex-selective abortion is necessary to promote women’s equality in any given society.

This framework is not formulated around the jurisprudence of any specific country. On the contrary, this feminist framework can be used to evaluate restrictions on sex-selective abortion in any country where access to abortion is otherwise legal. In many countries women have no right to obtain an abortion except to save their own life. The approach I propose would not be relevant to those countries.

In debates about the legality of abortion in the United States, the fetus’s right to life is juxtaposed against the reproductive rights of the woman. This framing unconsciously seeps into discussions about prohibitions on sex-selective abortion even within feminist writings. Pro-choice feminists are reluctant to support any prohibitions on sex selection because they think such support would validate the view that fetuses and embryos have an independant right to life.

Indian feminist scholar Nivedita Menon’s view exemplifies this dilemma. She writes:

[W]e cannot hold simultaneously that abortion involves the right of women to control their bodies, but that women must be restricted by law from choosing specifically to abort female foetuses. We seem to be counterposing the rights of (future) women to be born against the rights of (present) women to control over their bodies.⁹

Based on her framing of rights, she concludes that sex-selective abortions and sex determination tests should not be prohibited.¹⁰

Observing the need for a new understanding of sex-selective abortion bans, Mallika Kaur Sarkaria argued that the way sex selection is practiced in India challenges the Western concept of “choice” and must be reevaluated from a global feminist perspective.¹¹ The framework I propose is a fundamental shift in feminist thinking about sex-selective abortion. Feminists are caught between a rock and a hard place in regard to sex selection—they want to preserve a woman’s right to choose, and, at the same time, they do not want to take positions that suggest that a pre-viability fetus or embryo has a right to life. The approach I suggest resolves this tension by changing the parameters within which the debate has been occurring.

In line with the observations I made in Chapter 1 about the use and misuse of context in evaluating cross-border practices, policymakers, advocates, and others applying the transnational feminist approach should focus only on empirical evidence in the country context where the policy is proposed and resist drawing conclusions based on how sex-selective abortion is practiced in other countries. In the next section, I lay out the spectrum of existing ethical and legal positions for both pre-implantation sex selection and sex-selective abortion. In describing each viewpoint, I explain how my proposal builds upon or deviates from each position.

Ethical and Legal Perspectives on Sex-Selective Abortion

Parents have long tried to intervene to produce children of a specific sex. The list of advice to women on this front is nearly endless. Aristotle is said to have told women to lie on their right sides after intercourse to increase the chances of having a boy.¹² An ancient Egyptian manuscript states that if the face of a pregnant woman has a greenish cast, then she is certain to bear a son. More often than not, it was thought to be the woman’s responsibility to produce a male heir. In some cultures, failure to do so gave rise to the husband’s right to divorce the woman and marry another woman.¹³ Even today in many parts of the world (such as India), women are ostracized if they do not produce a male heir. This occurs despite the fact that scientific evidence tells us that the sex of the embryo will be determined by whether an X-chromosome–bearing sperm or Y-chromosome–bearing sperm unites with the egg.¹⁴ Women always contribute the X-chromosome, and as a result it is the man’s sperm that determines the sex of the fertilized egg.¹⁵

Advocates as well as scholars from many disciplines have expressed strong and often conflicting views on sex selection. Some people urge for its legality, and others fiercely oppose it. Some would prohibit sex-selective abortion but would accept the use of pre-implantation technologies for sex selection. I discuss each of these viewpoints and how they diverge from or inform my proposal. While the perspectives I describe below are largely from American authors, I also draw on European and Indian perspectives. I discuss works by legal scholars, philosophers, and medical ethicists. I divide positions on sex selection into three broad categories: (1) feminist and women-centered perspectives, (2) anti-abortion views, and (3) eugenics concerns.

Feminist and Women-Centered Perspectives

Western Feminist Positions

With the advent of in vitro fertilization (IVF) and pre-implantation genetic diagnosis (PGD), a number of American feminists wrote about sex selection in the 1980s. They feared it would lead to a shortage of women in the United States. Some decried the practice because they believed it manifests sexism. Tabitha M. Powledge’s view exemplifies this position:

I want to argue that we should not choose the sexes of our children because to do so is one of the most stupendously sexist acts in which it is possible to engage. It is the original sexist sin. This argument applies to both pre- and post-conception technologies. To destroy an extant fetus for this reason is more morally opprobrious than techniques aimed at conceiving a child of a particular sex, but they both are deeply wrong. They are wrong because they make the most basic judgment about the worth of a human being rest first and foremost on its sex.¹⁶

Rosalind Petchesky also argued that it was “blatantly sexist” for a woman “to get an abortion on the grounds that they prefer a different gender.”¹⁷ Along these lines, Mary Warren, a strong proponent of a woman’s right to abortion (including late-term abortions), simply maintained that it was morally wrong to “deprive a sentient human being of its life because of its sex,” but not because she thought it was sexist to do so.¹⁸

In more recent feminist writing on sex selection, the view that the practice is inherently sexist still prevails. I identify three variants of feminist objections to sex selection. First, feminists informed by postmodern and queer theories oppose sex selection because it supports the idea of gender as a binary category—male or female. These activists have argued that sex selection is inherently sexist because the practice “reject[s] the idea that gender is fluid” and is premised on the assumption that “sex and gender can be classified into two distinct male and female forms.”¹⁹ This view draws on the fundamental principle of postmodern feminism that gender is socially constructed.²⁰ However, even if we assume that our ideal society is one where everyone believes that gender is fluid, preventing people from sex-selecting will do little to make people less sexist.

Second, another feminist argument against sex selection is that people who sex-select are more likely to force their children to conform to traditional gender expectations and roles. Berkowitz and Snyder have argued that parents who sex-select will have expectations that their children’s behavior will conform to a specific gender.²¹ Another commentator notes that “[i]f you’re going through the trouble and expense to select a child of a certain sex, you’re encouraging gender stereotypes that are damaging to women and girls … What if you get a girl who wants to play basketball?”²² It is, however, inaccurate to assume all or most people who want to select for a certain sex desire to constrain their children to traditional and oppressive gender roles.

Another author posits that it is sexist for a man who has two girls to select for a boy just because the man thinks that a boy would give him certain pleasures like playing ball or fishing. This man is thought to be sexist because he assumes that he could not have those pleasures with girls.²³ Yet preventing this man from having a boy would not change his views and would not make it more likely that he would give his girl children more opportunities.

Let’s take a few other examples. What if a woman who has two boys desires a girl because she wants to have someone to have manicures and pedicures with? Is that sexist? And would this harm the girl she gives birth to? Should parents who want two daughters so that they can grow up sharing a bond with each other be permitted to sex-select? Should two gay men who want to have a boy because they feel they could relate to him better be permitted to sex-select? These are harder and less clear-cut cases to resolve than the ones used by feminists who argue that sex selection is inherently sexist.

Third, some people argue that by sex-selecting, parents make a statement that one sex is superior to another. The American Congress of Obstetricians and Gynecologists opposes sex selection on these grounds. The organization concludes that even sex selection for family balancing purposes “violates the norm of equality between the sexes.”²⁴ Incidentally, this association of American obstetricians and gynecologists justifies its policy position by reference to UN guidelines, which invariably only refer to countries where sex selection is practiced in favor of only boys. In societies where sex selection is practiced largely in favor of one sex, one could argue that this reflects a society that believes one sex is superior. On the other hand, in societies where parents select for both boys and girls in equal numbers, the practice does not necessarily violate the norm of equality between the sexes.

The feminists in the 1980s who vociferously claimed that sex selection is sexist argued with similar force that there should be no legal restrictions prohibiting it. This is because the push to make abortion legal was a prominent feature of the 1960s women’s movement in the United States. Powledge argued that “[t]o make it illegal to use prenatal diagnostic techniques for sex choice is to nibble away at our hard-won reproductive control, control that I think most of us believe is the absolute rock-bottom minimum goal we have got to keep achieved before we can achieve anything else.”²⁵ To be sure, feminists opposed these bans not because they viewed sex selection as a separate right, but rather because they thought of the bans as restrictions on abortion rights.²⁶

Feminist authors writing in the 1980s did not have to contend with widespread sex-selective abortions in India and China. At that time, ultrasound technology was not widespread and as a result abortions of female fetuses were not that common even in India and China. Thus, their opposition to restrictions on sex-selective abortions were formulated before many people were aborting female fetuses. Nevertheless, even after women in India and other parts of the world started to sex-select in great numbers, liberal feminists continued to oppose limitations on sex selection under any circumstances. In the article “Sex Selection: Treating Different Cases Differently,” Bernard Dickens, Rebecca Cook and their coauthors point out that there is an “ethical injustice” in treating sex selection in a place like Canada as if it is the same as in a country like India.²⁷ Consistent with my argument for contextualization of cross-border practices in Chapter 1, the authors argue that sex-selective abortion should not be regulated in Canada based on how the practice is undertaken in India.²⁸