Women's Human Rights and Migration. Sital Kalantry
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to contend with a world with such massive migration of people who also brought practices with them from one place to another. Those theories were largely aimed at assessing and addressing women’s inequality in one country context.
The dominant paradigm among international human rights scholars and practitioners is that rights are “universal.” In other words, if a practice violates a right (such as the freedom from gender discrimination) in one country, that same practice undertaken in another country is also deemed to violate human rights. Cultural relativism is often contrasted with universalism in human rights discourse. A strong cultural relativist would argue that human rights are relative and as such, traditional or religious practices, even if they deprive women of autonomy and equality, should not be prohibited. While I disagree with cultural relativism, I think that the universalist perspective also has limitations in evaluating bans on practices that are brought from one country to another by immigrants. I call these practices “cross-border practices.” Scholars should do more work to explore the possibility of a legitimate theoretical space between cultural relativism and universality.
Largely as a result of the dominant universalist paradigm, scholars, policymakers, judges, and other important actors may not adequately contextualize cross-border practices. Some who believe that an act has the same harms across borders may assume that motives for and consequences of a practice in one country context will be the same or similar in another country context. Because of these assumptions, they might also fail to give significant recognition to how the social context where the practice emerges informs whether or not a practice is discriminatory. In this chapter, I demonstrate that policymakers who are considering bans on sex-selective abortion rely heavily on their understanding of the practice as it occurs in the immigrant’s country of origin. I refer to this as “decontextualization.” I also observe how decontextualization occurs in the debates on the veil ban in France, which I describe in Chapter 7.
I use sex-selective abortion bans in the United States to make the case for why we need a new legal approach to examining whether or not cross-border practices contravene women’s equality. I propose a methodology that prioritizes women’s rights, is context-sensitive, and uses comparative methodologies to evaluate cross-border practices. Few Americans are aware that a wave of legislation to restrict sex-selective abortion began sweeping through state legislatures in 2009. More than half of state legislatures since that time have voted on such bills. Seven states recently adopted them. Two states had enacted them decades ago. As recently as April 2016, the judiciary committee of the U.S. House of Representatives held a hearing on a federal bill to prohibit sex-selective and race-selective abortion.1 A similar bill was introduced again in January 2017 in the U.S. House of Representatives.
These bills prohibit abortions if they are being undertaken because the fetus is not of a sex that the parents desire. The bills are part of a strategy of anti-abortion groups in the United States to limit access to abortion. Anti-abortion advocates target issues that appeal to people who otherwise support legal abortion. They justify the bills by arguing that sex-selective abortion is widespread among Asian Americans and occurs at similar rates in the United States as other countries.
Sex-selective abortion bans are not the only anti-abortion statutes that have been justified in terms of women’s rights. The U.S. Supreme Court in Whole Woman’s Health v. Hellerstedt2 found restrictions on access to abortion that claimed to promote women’s health unconstitutional. The Texas statutes in question in that case required abortion clinics to satisfy the same standards as surgical care centers and required medical professionals working at those clinics to meet other unobtainable requirements.3 The Court found that those restrictions did not actually improve women’s health and instead severely limited access to abortion services in Texas.4 It is easier for pro-choice Americans as well as the majority of the U.S. Supreme Court justices to see the disingenuousness of arguments in favor of the Texas statutes. It is harder to immediately recognize the disingenuousness of arguments in favor of sex-selective abortion bans.
In the section “Decontextualization in Debates on Sex-Selective Abortion Bans in the United States,” I describe how the debates on sex-selective abortion bans in the United States referred to the magnitude and impact of sex selection in other countries in making conclusions about its scope, motives, and consequences in the United States and explain why that is problematic. The section “Culture vs. Context in Understanding Immigrant Behavior” demonstrates why decontextualization occurs in popular discourse as well as some feminist writings. When evaluating immigrant behavior, there is a tendency to overestimate the role of culture in shaping behavior and to underestimate the role of context. In the section “Context in Feminist Legal Theories and International Human Rights Law,” I discuss the role context plays in traditional American feminist legal theories as well as in more recent work that focuses on the global. The section “Transnational Feminist Legal Approach to Cross-Border Practices” proposes a methodology, the transnational feminist legal approach, to evaluate legal regulations on immigrant women’s behavior. I first define “sex selection” and the methods that can be used to achieve it.
Methods of Sex Selection
I use “sex selection” to mean the process whereby people intervene with nature in an attempt to give birth to a child of their desired sex. Some authors refer to the selection of the sex of a child as gender selection. I prefer to use “sex selection” in recognition of the fact that “gender” is both a biological as well as a sociological construct. A person’s sex does not necessarily determine his or her gender. When one or more parents attempt to preselect the sex of their child using medical technology, they are unable to control the future gender of the child.
Some people who engage in sex selection do so to achieve gender variety in their families—in other words, they want at least one boy and at least one girl. This is known as “family balancing.” There are several methods of sex selection, which I categorize as pre-implantation or post-implantation methods.
There are two pre-implantation methods of sex selection: (1) sperm sorting combined with artificial insemination (also known as intrauterine insemination, or IUI), and (2) in vitro fertilization (IVF) combined with pre-implantation genetic diagnosis (PGD). Sperm sorting involves sorting sperm into those that carry the X-chromosome and those that carry the Y-chromosome. If a girl is desired, then the woman will be artificially inseminated only with sperm bearing the X-chromosome. If a boy is desired, then the woman is inseminated with Y-chromosome-bearing sperm.5
Dr. Ronald Ericsson developed a method for sperm sorting in the 1970s. By the 1980s, it was available in the United States.6 MicroSort recently developed another method of sperm sorting. According to the company, this technology is proven to be 93% effective for selecting girls and 82% effective for selecting boys.7 The MicroSort process works by exposing spermatozoa to a fluorescent dye. The sperm are passed through a flow cytometer, which is able to sort the sperm on the basis of cell fluorescence. Sperm with an X-chromosome (indicating a girl) glow more brightly.8
The Food and Drug Administration (FDA) banned MicroSort from continuing to conduct clinical trials for family balancing purposes, but allowed it to continue trials for sex-linked diseases. With this seemingly insignificant regulation, the FDA has weighed in on the ethics of sex selection in the United States without any public process.9 In places outside the United States, MicroSort advertises its services for people who already have at least one child and want to have another child of an “underrepresented gender in the family.”10 Thus, MicroSort will deny its services to a family that wants only girls or only boys. Although MicroSort is not legally available in the United States for family balancing purposes, other methods of sperm sorting are available and are being advertised. One clinic in the United States offers sperm sorting for $1,300 to $2,500.11
Once sperm are sorted according to X-chromosome and Y-chromosome, the selected sperm are inserted into the uterine cavity, but artificial insemination does not result in a pregnancy every time. Indeed, its success rate is only approximately 20% per cycle.12 The procedure may need to be repeated several times to achieve pregnancy. In addition, no sperm sorting procedure is 100% effective