restrictions on sex-selective abortion both in countries where large segments of the population sex-select in favor of one sex and in countries where it is not practiced in that way.
By focusing on sex selection in both immigrant communities in the United States and among people in India, I examine questions about culture and change through the lens of critical legal theory. Explanations for sex selection that focus only on culture fail to recognize that the contextual factors (such as economic opportunities for women, a system of support for senior citizens, and fertility patterns) influence sex selection practices as well. The discourse on sex-selective abortion bans also often imagines culture as fixed rather than dynamic and changing both in India and among Indian American immigrant communities.
In attempting to assess the harms of sex selection to women as a group, I enter decades-old debates among feminists, medical ethicists, and economists regarding the societal impact of imbalanced sex ratios. Some theorists suggested that a male surplus would benefit women; others suggested that it will harm women. Today we have data to test those theories. There is a shortage of women in India as a result of the selective abortion of female fetuses, which began to occur in great numbers in the 1980s. Some believe that even if India’s sex ratio returned to normal, by 2050 the country would still have 30% more single men hoping to marry than single women.7 I examine empirical studies emerging from India and other countries to help determine the impact of sex selection on living women.
This work will be of interest to feminist legal theorists and will push new perspectives forward within that field. This work will also be informative to pro-choice people and others who are concerned about women’s rights in the United States and other migrant-receiving countries. Canada,8 Australia,9 and the United Kingdom10 have also considered bans on sex selection to address the perceived behavior of migrants. The transnational feminist legal approach sheds light not only on sex-selective abortion, but on other practices of migrant women that implicate women’s rights concerns, such as veiling. Additionally, the contextual lens is relevant to judges who have jurisdiction over cases across many different countries, such as those who sit on the European Court of Human Rights. Finally, this work will also be useful for the many United Nations bodies that issue policy recommendations across diverse country contexts.
Chapter Overview and Methodology
It is not an easy task for people in migrant-receiving countries to determine whether or not a practice violates human rights when there are competing human rights claims involved. Banning a practice can impinge on women’s right to religion, for example, but permitting it may be contrary to women’s equality more broadly. The problem is that national debates often rely on decontextualized information about the scope, causes, and consequences of practices of immigrants without examining the practice within their own context.
The deep contextual examination that I propose would require scholars and policymakers to undertake the following task: First, scholars and policymakers should evaluate the practice in their own country context and resist the tendency to decontextualize. Second, they should seek to understand the magnitude and motives of the practice in the country of origin of the relevant immigrant communities. Third, they should compare and appropriately distinguish the causes and consequences of the practice in their own country from the causes and consequences in the country of origin of the immigrant. Fourth, they should examine the practice from a perspective that places women’s rights at the center of the competing claims. This book follows this methodology in examining sex-selective abortion bans in the United States.
In Chapter 1, I explain the limitations of feminist legal theory and international human rights in evaluating the women’s rights implications of bans on certain practices of immigrant women. These theories are not generally open to the possibility that practices that are oppressive to women in one country context may not have a negative impact on women in another country context. I also analyze the discourse around sex-selective abortion bans to demonstrate how decontextualized arguments have been deployed by supporters of bans in the United States. As a result of decontextualized arguments, legislators, voters, and judges inaccurately evaluate and weigh the competing harms at stake and, consequently, make decisions that harm women’s equality while intending to promote it. I draw from more recent feminist legal scholarship that fixes its gaze on the global.
In Chapter 2, I use the insights about context to develop a framework that is specifically aimed at evaluating sex-selective abortion bans across multiple countries. I present the wide spectrum of moral and ethical positions on sex selection and explain how my legal approach builds upon and differs from existing viewpoints. Predominant approaches to sex selection focus on the harm to the female fetus, but fail to focus on the harms that sex selection causes (or does not cause) to living women. On the other hand, I argue that when jurisdictions ascertain whether or not banning sex-selective abortion will promote women’s equality, they should weigh the restrictions on women’s reproductive rights against the harms that sex-selective abortion of female fetuses causes to living women and girls.
Chapter 3 provides more background information on sex-selective abortion bans in the United States. Why are state legislators considering and passing the bans? Are the bills adopted in response to the fact that Asian Americans are the fastest growing immigrant community in the United States? Why are the laws difficult to enforce? This chapter maps the views of pro-choice legislators, pro-choice organizations, and voters to explain why some people who oppose other abortion bans support sex-selective abortion bans or remain silent about them. Although sex-selective abortion bans gained momentum in state legislatures, I explain why their close relative, race-selective abortion bans, have fallen out of favor.
Chapter 4 explains how empirical data and its misuse has driven the flurry of sex-selective abortion laws in state legislatures. I demonstrate that some authors of key studies on sex ratios of Asian Americans have decontextualized behavior and motives. I question why the sex ratios of Caucasian Americans are used as the baseline to measure whether or not Asian American sex ratios are “normal.” Studies have found that there are natural variations in sex ratios across geographic regions and among racial groups. I present new and original empirical research on the sex ratios of Asian Americans from 2008 to 2012. While prior studies use data that is more than fifteen years old, our study of new data suggests that Asian Americans desire both girls and boys and not just boys. Survey data from a national survey confirms that Asian Americans are more likely to desire families with gender variety than any other racial or ethnic group surveyed.
I provide a detailed examination of the sex ratios, the causes of sex selection, and the consequences of sex selection in India in Chapter 5. I demonstrate how “culture” is used as a blanket explanation for sex selection, while other factors such as changes in fertility and economic changes are often neglected. Through this country study, it is clear that most factors that lead to sex-selective abortion in India are not present in the American context.
Having laid out the U.S. context in Chapters 3 and 4 and the Indian context in Chapter 5, I apply the legal approach to sex-selective abortion that I outlined in Chapter 2 to analyze the validity of sex-selective abortion bans in both contexts. Using this feminist legal approach, I argue in Chapter 6 that sex-selective abortion bans restrict rather than enhance women’s rights in the United States.
In
