Women’s Human Rights and Migration- Sex-Selective Abortion Laws in the United States and India by Sital Kalantry (University of Pennsylvania Press 2017)

Vikrant Pachnanda reviews this book on sex-selective abortion laws in the United States and India.

  • Women’s Human Rights and Migration- Sex-Selective Abortion Laws in the United States and India by Sital Kalantry

The author starts off the book by giving an insight how she got interested in the topic of sex-selective abortion laws. She explains as to how when she watched the screening of the film, It’s a Girl: The Three Deadliest Words, she was troubled by the narrow story it told about sex selection in India. In this movie, Indians were salvages, female fetuses were victims, and Caucasian American women were saviors. Having spent many summers in India with her grandparents, through the academic and activist work that the author had done in India over the last decade, and having lived there as a Fulbright scholar, Prof. Kalantry know firsthand that many women obtain sex-selective abortions because of societal norms that demand a male heir, and not as a result of overt physical or emotional coercion. There was no doubt that some of these women also faced domestic violence for their failure to produce a male heir. Upset by the disconnect between her discomfort with the film and the general acceptance of its message by the people with whom she watched it, that very evening she stayed up late into the night trying to find out information about the filmmakers and the film’s funding sources.

There was also a bill pending in the United States. The bill’s preamble stated that its purpose was to stop the widespread practice of abortions of female fetuses by Indian and Chinese people living in the United States. Bills like these were also sweeping across state legislatures. By 2016, half of all state legislatures in the United States had voted on bans on sex-selective abortions, purportedly to address the behaviour of Asian Americans. As someone who was raised by Indian immigrants in the United States, the author was aware that the ‘culture’ of immigrants dfrom the ‘culture’ in the places from which they migrated. This book builds on my collaborative as well as her own individual work on sex selection. Some of the most hotly debated issues about women’s human rights today relates to practices undertaken by immigrants in their country of destination. Some practices of immigrants seem to be contrary to women’s equality and rights. This book uses sex-selective abortion laws in the United States as a site to develop a transnational feminist approach to sort through questions about women’s human rights. Laws prohibiting sex-selective prohibition, which are spreading like wildfire in the United States, are an example designated to prevent a practice that is erroneously though to be prevalent among people of Asian descent living in the United States. Since 2009, nearly half of the state legislative bodies in fifty states have considered laws to stop women from terminating their pregnancies if they are doing so because of sex of the fetus.

This phenomenon, which Prof. Kalantry refers to as decontextualization, can be observed in the discourse around bans on sex-selective abortion in the United States. The dominant narrative used to justify these laws is that (1) people in Asia prefer sons and that is why they abort female fetuses; (2) Asians have emigrated to the United States and many of them obtain sex-selective abortions; (3) Asian Americans obtain these abortions because like Asians they have a sexist preference for sons and an aversion to daughters and (4) sex selection in both the United States and Asia is discriminatory and harms women. Pro-life people oppose sex-selective abortion because they oppose abortion for any reason. Pro-choice people in the United States oppose sex-selective abortion because they are concerned about equality for women and girls. An analysis of legislative voting records presented in Chapter 3 suggests pro-choice legislatures in a few states voted in favour of prohibitions on sex-selective abortion.

Modern international human rights theory is built on the premise that all rights are ‘universal’-every everywhere has the same substantive human rights. If a practice violates human rights in one country, it is also though to violate human rights in another country. On the opposite pole of universality is cultural relativism. The extreme form of cultural relativism is problematic because it uses culture and religion to shield practices that are oppressive to women. The strong force of universalism of human rights is necessary to counteract the extreme forms of cultural relativism. The author endeavours to create a conceptual space between these two poles. In contrast to this universalizing messages in both the feminist legal theory and international human rights law, she argues that whether or not bans on certain practices of immigrant women promote women’s right should be ascertained using an evidence-based understanding of the practice in the context in which it occurs. Prof. Kalantry developed the framework of a new approach to evaluating regulations on the practices of migrants. This transnational feminist legal approach is a methodology that emphasizes both the context of the immigrant-sending and migrant-receiving country in evaluating bans on women behaviour.

The author argue that in evaluating whether or not a practice is oppressive to women, we should be open to the possibility that when the practice emerges in a new context, it has a different human rights impact. Once a practice is thought to be contrary to human rights in one country context, it is assumed to also be discriminatory in another country context. In contrast, she suggests that policymakers in migrant-receiving countries should not leap to this conclusion. In examining the behaviour of people who trace their origin to another country, some people in migrant-receiving countries also assume that immigrants will undertake similar practices as people from their country of origin because they overemphasize the role of ‘culture’ in shaping behaviour and underestimate the role of the larger societal structures and context in influencing behaviour. In contrast, the author calls for a careful empirical analysis that ascertains the scope of the practice in question in immigrant communities, the motives for the practices, and the impact the practice is likely to have in the migrant-receiving country.

Using the general principles of the transnational feminist legal approach that the author develops in Chapter I, she proposes a specific framework in Chapter 2 that can be used to evaluate and resolve the competing rights in question when bans on sex-selective abortion are considered. The context-based legal approach Prof. Kalantry proposes frames the competing rights in question as women’s reproductive rights, on one hand, and the harm that sex selection may cause to girls and women living in a society, on the other. She starts from the proposition that reason-based restrictions on the right to choose during the pre-viability period-including sex-selective abortion bans do burden women’s reproductive rights, but they may be justifiable if women in any given society are exercising their rights in a way that harms women as a group.

The author presents 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. She argues 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. Prof. Kalantry presents an analysis of new demographic data about 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.

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. The author undertakes a comparative analysis with the situation in India in chapter 5. She examines 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, the author explains how 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.

The author uses 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, she considers the practice of sex –selective abortion in the United States through the lens of the legal framework she articulated. 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. 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 Muslin women in France was oppressive to those women, France passed a law to prohibit it. Prof. Kalantry examines 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.

She aptly presents a quantitative empirical analysis of sex ratios to determine whether Asian American sex-select (while at the same time critiquing this methodology) and conduct a political analysis of the sex-selective abortion bills in state legislatures. The author also engages in a comparative study of the politics, causes and consequences, of sex-selective abortion in India. Further she conducts 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. She uses sex-selection as a lens to enter and make contributions to several contested issues in multiple disciplines. She also compares 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 if the evaluation. The framework that Prof. Kalantry proposes 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 favour of one sex and in countries where it is not practiced in any other way.

By focusing on sex selection in both immigrant communities in the United States and among people in India, she examines the 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 practice as well. The author enters decades old debates among feminists, medical ethicists, and economists regarding the societal impact of imbalanced sex ratios. Moreover she also examines empirical studies emerging from India and other countries to help determine the impact of sex selection on living women.

In Chapter I, the author explains the limitations of feminist legal theory and international human rights in evaluating the women’s rights implications of bans on certain practices of immigrant women. These theories are generally open to the possibility that practice that are oppressive to women in one country context may not have a negative impact on women in another country context. She also analyzes the discourse around sex-selective abortion bans to demonstrate how decontextualized arguments have been deployed by supporters of bans in the United States.

In Chapter 2, she uses the insights about context to develop a framework that is specifically aimed at evaluating sex-selective abortion bans across multiple countries. The author presents the wide spectrum of moral and ethical positions on sex selection and explains how my legal approach builds upon and differs from existing viewpoints. Predominant approaches to sex selection focus on the harm to the female fetus, but fail to focus on the harms that sex selection causes (or does not cause) to living women. On the other hand, Prof. Kalantry argues that when jurisdictions ascertain whether or not banning sex-selective abortion will promote women’s equality, they should weigh the restrictions on women’s reproductive rights against the harms that sex-selective abortion of female fetuses causes to living women and girls.

Chapter 3 provides more background information on sex-selective abortion bans in the United States. This chapter maps the views of pro-choice legislators, pro-choice organizations, and voters to explain why some people who oppose other abortion bans support sex-selective abortion bans or remain silent about them. Although sex-selective abortion bans gained momentum in state legislations, Prof. Kalantry explains why their close relative, race-selective abortion bans, have fallen out of favour.

Chapter 4 explains how empirical data and its misuse has driven the flurry of sex-selective abortion laws in state legislatures. The author questions why the sex ratios of Caucasian Americans are used as the baseline to measure whether or not Asian American sex ratios are “normal”. She presents new and original empirical research on the sex ratios of Asian Americans from 2008 to 2012. Further she provides a detailed examination of the sex ratios, the causes of sex selection, and the consequences of sex selection in India in Chapter 5. Prof. Kalantry also demonstrates how ‘culture’ is used as a a blanket explanation for sex selection, while other factors such as changes in fertility and economic changes are often neglected. Through this country study, it is clear that most factors that lead to sex-selective abortion in India are not present in the American context.

The author applies the legal approach to sex-selective abortion that she outlined in Chapter 2 to analyze the validity of sex-selective abortion bans in both contexts. Using this feminist legal approach, she argues in Chapter 6 that sex-selective abortion bans restrict rather than enhance women’s rights in the United States. In Chapter 7, she demonstrates the relevance of the transnational feminist legal approach to another practice arising in a different migrant-receiving country veiling in France. The author examines the debates around France’s ban on wearing full-face veils and the European Court of Human Rights decision that upheld that ban. She further also analyzes how debates about the full-face veil ban decontextualized behaviour and motives.

To conclude that according to the author, this work would also be useful for the many United Nations bodies that issue policy recommendations across diverse country contexts. Overall the books gives a detailed picture of sex-selective abortion laws in India and the United States.

VIKRANT PACHNANDA is an Advocate and the Founder & Managing Editor of India Law Journal. He may be reached at