Women's Human Rights and Migration - Sital Kalantry Pennsylvania Studies in Human Rights

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an in-depth study of the context of the foreign country, it may also become clear that the knowledge and information about the foreign country is itself distorted. Knowledge is channeled through sound bites and stereotypes of foreign cultures as misogynist. In this narrative, women in some foreign countries are believed to be forced by men to undertake the practice and are viewed as being unable to make their own decisions or participate in any way in the decision-making process. Using comparative and empirical analyses, we gain accurate information about the multiple contexts in which a practice emerges.

      My proposal is a pragmatic and realist approach that argues that a cost/benefit analysis be undertaken when there are competing rights at stake. When two competing rights are at stake, weighing the costs and benefits of bans may sometimes lead to the most meaningful solutions. The transnational feminist legal approach sees women’s rights through the global lens rather than the parochial domestic lens, but also proposes solutions that can be utilized in domestic policymaking.

      The consequences of failing to contextualize and compare are grave. Policymakers will inaccurately understand and weigh the competing rights at stake in banning women’s practices. By emphasizing harms caused by a practice in another country, policymakers will overestimate the benefits of banning it in their own country. As a result, they undervalue the costs of a ban. Additionally, by relying on decontextualized explanations, policymakers fail to investigate the unique reasons and consequences of certain practices undertaken by immigrants. If policymakers examine the context in which the practice occurs and resist relying on the behavior and motives of people in other countries and the harms caused by practices in other countries, they will adopt policies that are more fair. If they do not, then they will adopt laws that harm women’s rights rather than promote them.

      This book utilizes the transnational legal feminist methodology proposed in this section to evaluate bans on one cross-border practice—sex-selective abortion—from the perspective of women’s equality. Using the general principles of a transnational feminist legal approach that I articulated above, I develop a specific legal framework to assess bans on sex-selective abortion in Chapter 2. The goal of this legal test is to determine whether or not a ban on sex-selective abortion in any given context will promote women’s equality. My proposal is a feminist framework because it places women and girls at its center. I argue that the competing rights at stake in legal prohibitions on sex-selective abortion are the reproductive rights of women, on the one hand, and the harm that the widespread practice can cause to women as a group, on the other hand. The approach is contextual because it requires an evaluation of the way the practice is undertaken and its consequences in the geographic context where it is emerges. Under the framework, a ban might promote women’s rights on the whole in one country, but restrict it in another country.

      In developing an approach to evaluate bans on sex-selective abortion, I engage with the spectrum of ethical views on the subject. Some oppose sex-selective abortion because they oppose abortion altogether. According to that perspective, no woman should have the right to an abortion, except in rare cases such as if it is necessary to save her life. Anti-abortion advocates see sex-selective abortion as sex discrimination against the fetus. Liberal feminists argue that sex-selective abortion should not be banned in any country since it impedes women’s autonomy. At the same time, they also believe that sex-selective abortion reflects discrimination in society against women and girls. Other feminists argue that while it should not be prohibited, it is morally problematic because those who obtain sex-selective abortions fail to acknowledge the distinction 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

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