In some Asian countries a culture of gender discrimination that leads to the selection of a child’s sex is creating grave social problems. The number of males born for every 100 females illustrates its dimensions. In Vietnam the number is 107, in Taiwan 109, in India 112, and in China estimates range as high as 119. Given the size of the populations in India and China, these skewed sex ratios yield an enormous female deficit. However, these countries are the exception. Western countries and large developing countries like Brazil, Mexico, Indonesia, Pakistan and Bangladesh have normal, naturally determined sex ratios.
When serious social problems flow from discrimination against girls and women it is natural for advocates of gender equality to reach for human rights arguments and instruments to combat the problem. That is what the United Nations has done. However, the attempt to ban sex selection universally could lead to flawed principles that eventually could imperil women’s rights.
In 2001 the United Nations Special Session on Children described sex selective foeticide as “gender-based violence,” although the Convention on the Rights of the Child defines a child as “a human being,” and thus does not necessarily include the human foetus as a subject of concern. In 2005 the U.N. Committee on the Elimination of Discrimination Against Women placed its commentary on sex selective abortions in India in the Violence Against Women section of its report. In 2006 the U.N. Secretary General listed pre-natal sex selection under the heading of “Harmful Traditional Practices.” One might query whether sex selection can properly be classed as a traditional practice, it having been made possible by relatively modern technological developments. And, the World Health Organization has said that “most people do appreciate that sex determination and female foeticide is wrong.”
In its comprehensive condemnation of sex selection the U.N. system has regrettably not attempted to describe many of the key elements that require clarity. Who is the victim? Who is the violator? Is the violation universal or limited to certain cultures? What are the human rights principles that apply to the use of sex selective technologies before conception? Is it wrong only when it is a female foetus that is rejected? How do the principles enunciated with respect to sex affect potential human beings with other “unwanted” characteristics such as disability? By leaving these questions unanswered, the U.N. has avoided tackling many of the uncomfortable issues that a more rigorous approach would have forced it to address. It has also ignored the body of thoughtful and well-intentioned commentary that rejects the view that sex selection is always unethical and criminal.
Western and Asian countries show a mixed record on implementation of the international law on sex selection. Some adopt the U.N. approach, some partially adopt it, and some don’t adopt it all. Sex selection is banned in the United Kingdom and some parts of Australia. However, it is not banned in the USA. The Canadian situation demonstrates perfectly how a clash of principles can result in an unprincipled result. Sex selection achieved through using assisted reproductive technologies is banned, but permitted through abortion because of liberal abortion laws. Thus, Canadian law adheres simultaneously to two competing views about sex selection, thereby achieving the worst possible result. It criminalizes one activity without apparent need, while permitting another activity that is consistently condemned by the United Nations human rights system as constituting violence against women. The ban was imposed despite the report of the Royal Commission on New Reproductive Technologies concluding that the use of sex selective insemination by couples to balance their family is not necessarily discriminatory. The Commission said, “We are sensitive to and empathize with the desire to have at least one child of each sex… We believe that sex selective insemination, if used in support of these goals, is not in itself unethical… It may be consistent with sexual equality if used in a gender neutral way.”
Korea has reached the remarkable stage where the judiciary has overturned the ban on physicians informing expectant parents of the sex of the foetus. Pointing to statistics showing that the gender ratio has returned to normal, The Constitutional Court said “…we cannot but question whether the sex-ratio imbalance is a serious social problem and whether the foetus gender notification is serving as a cause for abortion… The legislation’s purpose is recognized in that it helps resolve the sex-ratio imbalance and protects the foetuses’ right to life… But it overly limits the basic rights of parents and physicians by placing a blanket ban through the latter half of the pregnancy.”
India is the heartland of the sex selection controversy. Its alarming statistics have spurred official efforts to redress the sex ratio imbalance through legislation that prohibits sex selection, whether at the pre-conception stage or through abortion. The Ministry of Health and Family Welfare is very much in line with the U.N. position saying “perhaps the most horrifying form of gender-specific violence is female infanticide… What was once seen as a barbaric practice has, chillingly, now become increasingly accepted, albeit sometimes in more ‘technically advanced’ forms. Female infanticide has found a partner in female feticide.”
A reader of U.N. pronouncements might think that a state of near universality had been reached among the concerned and enlightened on this issue. In fact there is much scholarly literature, including a considerable body of ethical literature, that sits in opposition to the U.N. approach. An example is the view of Canadian scholar Bernard Dickens who says, “…allowing sex selection for purposes of family balancing in countries in which no demonstrable pro-male sex bias exists among prospective parents appears at least ethically neutral and tolerable… To suppose that any such choice (of sex) is necessarily sexist is unjust, and to base laws introducing criminal penalties on such a supposition where the evidence is that an assumption that a pro-male bias appears to be unfounded, is both unjust and oppressive.” And importantly there are ordinary women who, far from viewing sex selection as violence against their gender, view it as liberating from the need to have endless pregnancies until a male heir is born.
The implications for a woman’s right to choose created by the uncompromising U.N. stance on sex selection reach far beyond the question of gender. Approaches taken by any U.N. human rights body can legitimately be cited as precedents by advocates for all disadvantaged groups. For example, it has been reported that in the United States about ninety percent of women who learn they are carrying a Down’s syndrome foetus have an abortion. Disability rights advocates, such as the The World Institute on Disability, have taken uncompromising stances against aborting the disabled by saying that a woman should not have the right to a selective abortion based on race or disability or sex or the color of eyes, or anything else that can be determined prior to birth.
As the guardian of international human rights law, the United Nations system has done a poor job in articulating the issues involved in human rights and sex selection, and in so doing has endangered existing women’s rights. Furthermore, its position has implied that many thoughtful and well-intentioned scholars and citizens, not to mention law-abiding States, favour positions that are on the side of discrimination and violence against women.
The U.N.’s approach to the issue should be turned on its head. The very things that have been condemned as human rights abuses should be given legal protection. Complete freedom to choose abortion and the use of assisted reproductive technologies in the selection of certain characteristics should be viewed as the exercise of personal liberty. National legislation to limit them should be viewed only as a necessary infringement on human liberty to combat the serious social consequences of their abuse.
In adopting this approach, it is useful to refer to Section 1 of the Canadian Charter of Rights and Freedoms. It reads: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Canadian courts have said that the objective to be served must relate to societal concerns which are pressing and substantial whenever liberties are curtailed.
Measures taken to limit the negative consequences of sex selection need not be universally applied, as international human rights must be. Each State should make a policy judgement, not a moral judgment on whether sex selection is a pressing and substantial concern justifying intrusion into a woman’s personal liberty for a limited time and in the most circumscribed way. The issue should not be burdened with the language of discrimination, violence against women, immorality and unethical conduct.
It is natural for well-intentioned people to respond to serious social problems by reaching for any means to combat them. The means within the international human rights system are concepts like discrimination and violence against women, and the system has yielded to the temptation to apply them, despite the obvious awkwardness of the fit. It is time for the system to step back, recognize it has followed the wrong course, and promote the use of more precise and suitable concepts at the national level that recognize rather than endanger women’s existing human rights.