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

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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

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