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 view draws from the logic of public health regulations. 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