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
