between gender and sex. Those who advocate for the right to procreative liberty argue that parents should be permitted to select (including by in-vitro fertilization and sperm-sorting) the appropriate gender balance of their families. I do not support the practice nor do I support a right to sex-select, but rather view the bans to be problematic because (among other things) they burden women’s ability to exercise the right to choose for non–sex selection purposes.
To contextualize the practice, I use evidence-based empirical methodologies to understand immigrant behavior and motives. In furtherance of this, I have collaborated with economists to examine sex ratios of Asian Americans. Contrary to popular belief, we found that sex selection among this group is very limited and nowhere near the scale found in India. In addition, a few Asian Americans appear to have a preference for family balancing rather than just a son preference. These findings are discussed in greater detail in Chapter 4.
Furthermore, as noted above a transnational legal feminist approach calls for a comparative and detailed examination of the situation not only in the country of destination of the immigrant, but also in their country of origin. In Chapter 5, I closely examine the practice of sex-selective abortion in India and its potential harm to demonstrate the fallacy of the “coercion narrative” and to argue that the harm in India of sex-selective abortion is on women as a group. Abortion of female fetuses by individual women on a massive scale has led to a sex ratio imbalance. This has led to a surplus of unmarried men in India. A sex ratio imbalance threatens to harm living women—for example, by increasing violence against women. In Chapter 6, I apply the transnational feminist legal framework to sex-selective abortion bans to conclude that the bans in the United States serve only to restrict reproductive rights and could also lead to other negative consequences without any potential benefits for the rights of women and girls.
The principles of a transnational feminist legal approach I articulate here are relevant to evaluating not only sex-selective abortion bans but also other bans on practices of immigrants in migrant-receiving countries that are thought to be harmful to women. In Chapter 7, I demonstrate how the debates on the full-face veil in France also made decontextualized arguments in support of the bans and failed to examine the harms in context. Using an evidence-based contextualized feminist approach to the question of veil bans in France would lead to better legal decision-making.
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
