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Making an Exception for Sex Selection

First, let us recall Kaczor’s challenge to anyone who wishes to defend abortion rights generally but make a prohibitive exception in respect of SSA. From the point of view of someone who thinks that abortion is on the whole morally permissible, he says, ‘there is some difficulty in explaining why fetal killing for gender preference should be wrong’.[1] Is he right about this? As we saw, Kaczor’s argument is that it is difficult to articulate the wrongness of SSA in a way that does not commit one to the protection of fetal rights across the board. We could put this point another way. If it is bad for a fetus to be aborted because of its sex, the fetus must therefore be the sort of being which has a good worth caring considerably about, in which case, it surely follows that we should not terminate the life of the fetus for other reasons as well. The fetus does not, after all, know why it is being aborted, and hence cannot be harmed any the more by sex selective than by non-selective abortion.

I think that the logic of this claim is sound. But this only indicates that a serious argument for the specific legal prohibition of SSA will not have anything to do with the moral status of the fetus. A defender of abortion rights can defend the exceptionality of SSA in more than one way. She might claim that SSA is uniquely morally wrong. But she may instead claim only that there are special reasons to prohibit it in law. I wish to focus not on the claims of the person who believes that a woman choosing SSA behaves immorally whereas other women choosing abortion do not, but on the claims of someone who believes that SSA, but not other forms of abortion, ought to be legally prohibited.

For defenders of abortion, the most obvious way to explain the harmfulness of selective abortions is not by reference to the rights of the individual fetus selected against, but by reference to potential harm caused to persons possessing the undesired characteristic, particularly when that characteristic defines a disadvantaged class of persons. When considering the legality of sex selection, one cannot rule out of the equation the potential that, if permitted, the practice would be predominantly used to select against female children. Where this is true, or likely to be true, the concern is not that sex selection harms female fetuses, but that it harms women.

This concern has been borne out in much of the feminist commentary about sex selection. In short, the worry is that, in different ways, an unbridled practice of terminating female fetuses is likely to contribute to prevailing conditions of sex inequality, conditions which are, in turn, responsible for making female offspring undesirable in the first place. It has been suggested that a wide practice of terminating female fetuses could contribute to sexism and sex inequality in a number of ways. One way is by powerfully symbolizing or expressing the diminished value of women and girls—what is known as the ‘expressivist’ objection against selective abortion. Indeed, it is hard to think of a more powerful expression of the hatred of women than terminating pregnancies so as to prevent new women from coming into existence. Through its communicated meaning, the concern is that widespread SSA, especially where that activity is state-sponsored, may help to validate the cultural devaluation of women, resulting in a kind of feedback loop where sex selection helps contribute to the conditions for its own demand. Another way in which it is suggested that sex selection can harm women as a class is by significantly reducing their numbers, and hence, their political might. Political strength depends, to some extent, on numbers. If sex selection skews the sex ratio enough, the sheer number of women could be depleted far enough to erode their overall power, so the argument goes.

Considerations such as these have nothing whatsoever to do with the moral status of the fetus, and they certainly do not presume that the fetus has strong moral rights. If they reflect credible concerns, therefore, they may form the basis upon which someone can object to a legal practice of SSA whilst supporting abortion rights more generally, thus answering Kaczor’s challenge. Although such a prohibition would involve some sacrifice in reproductive choice, there is nothing inconsistent in holding that reproductive choice must sometimes be subordinated to other considerations, especially when those considerations reflect much of the value of maintaining reproductive choice to begin with.

Kaczor argues that it is a weakness of objections to SSA which claim that it perpetuates discrimination against women and girls that they only provide a rationale for banning the selective termination of females, not males.[2] Isn’t sex selection just as distasteful when male fetuses are terminated because of their sex? Kaczor is right that for someone who argues against SSA on the ground that it contributes to the social disadvantage of all women, it will naturally follow that the selective abortion of males does not produce the same concerns in a patriarchal climate. This is not a weakness of the argument, however. Much of what is found disturbing about the selective termination of females is that it screens out a characteristic which defines an existing, disadvantaged class of persons, and is therefore loaded with meaning in light of the surrounding cultural context. This same meaning clearly does not attach to the selective termination of a male fetus because, say, a pregnant woman feels ill equipped, for one reason or another, to raise a male child. Anyone who makes a case against selective abortion not on the basis of fetal rights but on the ground of collateral harms to disadvantaged groups will rightly be sensitive to these points of distinction. In short, it is not a weakness of an argument against allowing SSA that it depends on the social context if the crux of the argument is that SSA is only problematic given the social context.

Kaczor does, however, question the empirical claim that SSA exacerbates the inequality of women, arguing that ‘no developed account is given for the questionable assumption that SSA perpetuates discriminatory views which negatively affect women and girls in society.’i® The absence of quantifiable evidence strikes me as a bad reason to disbelieve an assumption that seems to be so intuitively correct, especially when it is not even clear what might count as satisfactory

18 ibid.

evidence.19 Still, it is obvious that the extent to which sex selection does or would contribute to the subordination of women depends on a number of factors which vary from context to context. These factors probably include the predicted uptake of sex selection under a permissive policy, whether that uptake is likely to lean heavily towards the deselection of females, and the depth of existing sex inequality and subjugation of women in the context concerned.

As some commentators have noted, these issues are extremely culturally and jurisdiction specific.20 It is quite unthinkable that a permissive policy of sex selection in Britain would result in as frequent termination of females as it would in India or China. Insofar, then, as concerns about the expression of misogyny and damage to women’s inequality need to be balanced against a general commitment to reproductive choice, these contextual features will be highly pertinent. Again, I do not believe this to be a weakness of any argument about the acceptability of sex selection. The claim is not the suspect one that the rights of any individual fetus depends upon the cultural context in which it finds itself. Rather, the starting point is that the fetus has no strong right to life, but that there may exist, nevertheless, strong reasons of public policy and sexual justice to prohibit certain kinds of abortions. If this is the argument, then the aptness of those concerns within any given context will always be relevant. To object that the moral status of the fetus cannot depend on cultural context does not refute a claim that anyone denouncing sex selection on feminist grounds need make, since it does not follow from those arguments that sex selection ever violates the rights of the fetus, but only that there may well be reasons, including of a moral kind, to prevent people from practising it.

But Feminist commentators have not been univocal in their responses to the sex selection issue.21 While there is unity in thinking that it is hugely significant if fetuses terminated because of their sex are considerably likely to be female, far more ambivalence surrounds the question of whether more harm is done to women’s interests by prohibiting sex selection or by allowing it. Some of those who equate sex selection with ‘femicide’ and the future disempowerment of women have advocated an outright ban of the practice as the only tolerable solution. Others, whilst acknowledging the moral dubiousness of sex selection, have argued that abrogating

  • 19 Kaczor refers to the suggestion, by some, that the scarcity of girls as a result of widespread SSA can in fact increase the value of women (ibid 214). But we should regard such a claim with extreme suspicion. As Helen Holmes has written: ‘women are oppressed in certain ways when they outnumber men, in other ways when they are in the minority; I see no evidence that skewed human sex ratios correct themselves. In India, for example, the deficit of women does not lead to improvement in the status and value of women and to a desire to have more daughters: quite the contrary’ (Helen Holmes, ‘Review of ‘Gendercide’ by Mary Anne Warren’ (1987) 1 Bioethics 100, 106—107).
  • 20 See Sawitri Saharso, ‘SSA: Gender, Culture and Dutch Public Policy’ (2005) 5 Ethnicities 248 and Sawitri Saharso, ‘Feminist Ethics, Autonomy and the Politics of Multiculturalism’ (2003) 4 Feminist Theory 199.
  • 21 For a selection of views, see: Mary Anne Warren, Gendercide: The Implications of Sex Selection (Rowman and Allanheld 1985); April Cherry, ‘A Feminist Understanding of Sex Selective Abortion: Solely a Matter of Choice?’ (1995) 10 Wisconsin Women’s Law Journal 161; Clare Chambers, ‘Autonomy and Equality in Cultural Perspective: A Response to Sawitri Saharso’ (2004) 5 Feminist Theory 329; Jalna Hanmer and Pat Allen, ‘Reproductive Engineering: The Final Solution’ (1982) 2 Gender Issues 53; Diemut Bubeck, ‘Sex Selection: The Feminist Response’ in J Burley and J Harris (eds), A Companion to Genethics (Blackwell 2002), and Kalantry (n 10).

any of women’s reproductive freedoms ‘is to nibble away at our hard-won reproductive control’ and risks too much in the way of constraining women’s autonomy.22 Some contributions focus their attention on the harm that choosing sex selection causes to existing women and girls, either by reducing their numbers (and, hence, their power relative to men), expressing misogyny (Tabitha Powledge writes that ‘to prefer males is, unavoidably, to denigrate females’23), or by helping to perpetuate the patriarchal values which make male babies more desirable.

From one perspective, the feminist problem of SSA is, at bottom, a conflict between individual interests in procreative control and a class interest in overcoming disadvantage. Prohibiting SSA so as to protect the interests of women as a class will undoubtedly result in severe hardship for individual women who will suffer as a result of not being able to obtain one (consider the examples from earlier). Without alleviating their difficult circumstances, withholding the abortion option from such women will mean allowing their welfare to be seriously compromised. On the other hand, depending on the context, allowing a rampant practice of SSA might only help sustain sex disadvantage and the conditions in which women find themselves so unfortunately positioned.

This problem is especially pointed where the suffering which threatens the woman (physical or mental) is of a magnitude that clearly meets the law’s general abortion permissions. Where this is so, prohibiting abortion only because that threat of harm is related to fetal sex would have the effect of imposing burdens on individual women, which they would not otherwise be required to endure, in the interests of greater sex equality for all. It is understandable if, in the face of this tension, advocates of abortion rights find themselves equivocating over SSA. However, there is nothing about this split-mindedness which commits anyone to the view that fetuses possess strong moral rights.

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