Women's Human Rights and Migration. Sital Kalantry
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and claimed that it proved “son preference” among all Asian Americans. The article lent itself to these types of misrepresentations because the authors suggested that the magnitude of sex selection among Asian Americans was the same as among people who live in Asia.4 The authors attempted to contain the can of worms they unleashed by clarifying to media sources that they did not mean to suggest that sex selection occurs among “all” or even “most” Asians.5 But the damage was already done.
I present a new empirical analysis of sex ratios of Asian Americans, but also critique existing quantitative empirical studies using a critical race theory lens in Chapter 4. I argue that these studies rely too heavily on the ratio of girls to boys born to Caucasian American parents as a baseline to measure whether or not Asian Americans are sex-selecting. Some researchers also make unjustified comparisons to the behavior of Asian Americans and the behavior of people living in Asia. Finally, stereotypes that Asian Americans have a “son preference” foreclose interpretations of the data in ways that challenge that narrative.
I present an analysis of new demographic data about the sex of children born to Asian Americans from 2008 to 2012, which was developed in collaboration with economists Alexander Persaud and Arindam Nandi. Our analysis of this data suggests that a very small number of Asian Americans may be using some method of sex selection to ensure that they conceive a fetus of the opposite sex to the two prior children they already have. Survey data of attitudes of Asian Americans suggests that more than any other racial or ethnic group, Asian Americans desire to have gender-balanced families—families with at least one boy and one girl.
The national rhetoric on sex-selective abortion bans, including the draft federal legislation, consistently makes reference to the practice in foreign countries as a way to advance a domestic agenda. Although in understanding the significance of sex-selective abortion practices among immigrant communities, the country context of their country of origin should not be overemphasized, it is still relevant. I undertake a comparative analysis with the situation in India in Chapter 5.6 I examine how the practice became widespread in certain parts of India, the societal and personal factors that contribute to women’s desires to have at least one son and at the same time have fewer children, and the efforts made by the Indian government to curb the practice. Through this in-depth comparative study, it becomes clear that many of the societal institutions that contribute to sex selection such as dowry, reliance on sons for support during old age, significantly fewer economic opportunities for women as compared to men, as well as other factors are not present in the United States.
I use empirical and comparative methodologies to shed light on the practice of sex-selective abortion in the United States. From the information developed through this analysis in Chapter 6, I consider the practice of sex-selective abortion in the United States through the lens of the legal framework I articulated. Are women practicing it in society in great numbers? What are the consequences of the practice? Bans on sex-selective abortion in the United States will lead to racial profiling of Asian American women, place access restrictions on women seeking nonselective abortions, and potentially open the door to many other pre-viability restrictions. Few women abort fetuses because of their sex in the United States, and the practice is not driven by the discriminatory societal institutions that contribute to a desire to have at least one boy child (as it is in some other countries). Unlike in parts of India, where there is some emerging empirical evidence that a male surplus leads to violence against women, there is no larger societal impact of sex selection in the United States. Instead, prohibitions on sex-selective abortion in the United States do no more than harm women’s equality.
The transnational feminist approach can also provide a useful lens to examine other practices of immigrants in other countries. Finding that the full-face veil worn by some Muslim women in France was oppressive to those women, France passed a law to prohibit it. A French woman brought a claim to the European Court of Human Rights arguing that ban violated her right to religious expression (among other things) under the European Convention for the Protection of Human Rights. I examine the discourse surrounding the full-face veil in France in Chapter 7, and suggest that much like the national discourse on sex-selective abortion in the United States, many policymakers, feminists, and other stakeholders made assumptions about veiling based on their impression of its causes, motives, and consequences in foreign countries. They failed to give sufficient weight to the French context. Some women who wore the veil in France claimed it was an expression of their identity as a minority.
Multidisciplinary Approach to Sex Selection
Much of the work on sex-selective abortion has been undertaken in silos—focusing only on specific geographies (India or China, for example) or using only one methodology such as feminist theory, quantitative analysis of sex ratios, or biological perspectives. In contrast, this book examines sex selection globally and through multiple disciplinary lenses.
I present a quantitative empirical analysis of sex ratios to determine whether Asian Americans sex-select (while at the same time critiquing this methodology) and conduct a political analysis of the sex-selective abortion bills in state legislatures. I also engage in a comparative study of the politics, causes, and consequences of sex-selective abortion in India. I conduct a legal doctrinal analysis of reproductive rights jurisprudence in the United States to assess whether or not the United States Supreme Court would uphold sex-selective abortion bans if the issue were to reach the Court.
I use sex selection as a lens to enter and make contributions to several contested issues in multiple disciplines. Responses to sex-selective abortion expose a gap in feminist legal theories. None of the dominant strands of thinking are able to make sense of both sex-selective abortion practices among Asian Americans and among people living in Asia. They are unable to adequately grapple with how to react to fact that the practice as undertaken in the United States is significantly different from the way in which it is carried out in foreign countries.
I compare legal responses to sex selection around the world and examine the spectrum of ethical views on the issues from a feminist lens. While traditional approaches to sex selection pit the rights of women against the right of the fetus, my framework places women’s equality on both sides of the equation. The framework I propose can be used across multiple jurisdictions. It can be used to evaluate restrictions on sex-selective abortion both in countries where large segments of the population sex-select in favor of one sex and in countries where it is not practiced in that way.
By focusing on sex selection in both immigrant communities in the United States and among people in India, I examine questions about culture and change through the lens of critical legal theory. Explanations for sex selection that focus only on culture fail to recognize that the contextual factors (such as economic opportunities for women, a system of support for senior citizens, and fertility patterns) influence sex selection practices as well. The discourse on sex-selective abortion bans also often imagines culture as fixed rather than dynamic and changing both in India and among Indian American immigrant communities.
In attempting to assess the harms of sex selection to women as a group, I enter decades-old debates among feminists, medical ethicists, and economists regarding the societal impact of imbalanced sex ratios. Some theorists suggested that a male surplus would benefit women; others suggested that it will harm women. Today we have data to test those theories. There is a shortage of women in India as a result of the selective abortion of female fetuses, which began to occur in great numbers in the 1980s. Some believe that even if India’s sex ratio returned to normal, by 2050 the country would still have 30% more single men hoping to marry than single women.7 I examine empirical studies emerging from India and other countries to help determine the impact of sex selection on living women.
This work will be of interest to feminist legal theorists and will push new perspectives forward within that field. This work will also be informative to pro-choice people and others who are concerned about women’s rights in the United States and other migrant-receiving countries. Canada,8 Australia,9