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Choice and coercion

A final way someone might seek to distinguish SSA from FFA is by appeal to the issue of choice. As some feminist discussants have pointed out, SSA in circumstances where the consequences of bearing a girl are hugely detrimental is surely a constrained example of reproductive choice. Especially in conditions where female life is undervalued, we might worry that a decision to terminate a female fetus is not an exercise of free choice by a pregnant woman, but only a response to irresistible social pressure. For this reason, some feminists have suggested that prohibiting SSA could be necessary to protect women from abortions that are not truly consensual. Catharine MacKinnon, for example, writes:

... in a context of mass abortions of female fetuses, the pressures on women to destroy potential female offspring are tremendous and oppressive unless restrictions exist. While, under conditions of sex inequality, monitoring women’s reasons for deciding to abort is worrying, the decision is not a free one, even absent governmental intervention, where a male life is valued and a female life is not.[1]

MacKinnon is surely right to suspect that, in most cases, the decision by a pregnant woman to abort a female fetus is likely to be the result of immense external pressure, whether from other individuals or from the patriarchal conditions in which she finds herself. Because of this, such choices do not strike MacKinnon as genuinely free. The argument might be made, then, that SSA ought to be generally prohibited so as to protect those who would otherwise make a non-autonomous decision to abort because of fetal sex.

But can FAA be regarded as, on the whole, any more consensual than SSA? In a context of disability discrimination, it may be thought that the decision to terminate for fetal abnormality is just as responsive to social pressure. In Britain, the routine gestational screening for Down’s Syndrome is indicative of social expectations that a positive diagnosis should at least provoke a serious consideration about termination. Jeremy Williams points out that in Western countries, social expectations now weigh heavily in favour of terminating where fetal disability is detected. If cultural pressure of this kind precludes genuine consent in the case of SSA, he asks why the same would not be true of selective termination on the ground of disability.[2] It certainly seems as though MacKinnon’s worry about the freedom of the decision to abort a female fetus in patriarchal conditions carries over to the disability context. In a social world where the lives of disabled people are not valued equally, are decisions to abort defective fetuses not also un-free?

Yet many abortions, perhaps even most, are chosen in the face of undesirable pressures. Abortions we would consider to be freely chosen can be undertaken in response to non-ideal circumstances outside of the pregnant woman’s control: her relationship status, her financial resources, her career prospects, to name but a few. Abortions chosen in response to these kinds of pressures are not ordinarily considered non-consensual. Are the pressures often in play in SSA and FAA of a wholly different order? Is, for example, the woman who opts for an abortion simply because she cannot afford to have a child making any less constrained a choice than the woman who aborts because she cannot afford to have a child that is female, with everything that entails in her particular situation? Indeed, almost all of the choices we make are taken in response to non-i deal conditions, and are not usually less autonomous for that. The challenge here is to explain why selective terminations of either kind are distinguishable from other kinds of abortion in terms of consent.

It may be argued that where the pressure to abort is applied by particular members of a pregnant woman’s social world and is direct and overwhelming enough, it crosses the threshold from mere pressure to coercion. That would certainly be true of the extreme case where a woman faces domestic violence, or the threat of being ostracized, if she gives birth to a girl. As Williams notes, threats of harm which come in the way of rights violations by others, like violence, tend to be regarded as destructive of autonomous decision-making in ways that the prospect of other kinds of harm—like financial ruin—are not.35 Personal threats of force typically obviate consent in a way that circumstantial pressure doesn’t.

However, distinguishing SSA from both FAA and what we might call ‘financial dire straits’ abortions on this basis requires us to believe that SSA is uniquely likely to occur in a context of outright coercion. It is not clear to me that we can make this assumption with any assuredness. Abortion decisions may be coerced in all kinds of situations and for all manner of reasons, with concealment of the sexual intercourse

35 ibid 141.

which resulted in the pregnancy being, presumably, very high up on that list. Many coerced abortions will therefore have nothing to do with fetal sex. A policy of selectively prohibiting only SSA in the defence of reproductive autonomy requires us to believe that where fetal sex is at issue, degrees of force are particularly likely to be deployed which surpass the circumstantial pressures (including personal pressure) that can motivate all kinds of abortions. Unless there is sound reason for believing this, the exceptional prohibition of SSA for the protection of choice appears to be, as Williams concludes, ad hoc.36

  • [1] Catharine MacKinnon, ‘Reflections on Sex Equality under Law’ (1991) 100 Yale Law Journal1317 (n 54).
  • [2] Williams (n 24) 139.
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