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China Announces That It Will Criminalize Sex-Selection Abortions:
What, If Anything, Should the U.S. Do About the Practice in this Country?


Wednesday, Jan. 26, 2005

Chinese law prohibits sex-selection abortions - that is, abortions performed because the parents would prefer to have a child of the other sex. (In China, it is virtually always a female fetus that is aborted.) Chinese law also prohibits ultrasound scans to determine the sex of a fetus.

But recently, the Chinese government reportedly announced a plan to go further -- and criminalize abortions and ultrasounds obtained for sex-selection purposes, in the hopes that criminalization will prove more successful in curbing these practices.

Such criminal laws in China arise out of the country's particular population policies and the reactions of Chinese families to those policies. The question of sex-selection abortion, however, is not unique to China, even if the context for the criminal law there may be.

In the United States and elsewhere, there are those who would selectively abort a fetus of one sex or the other. What, if anything, ought the law to do about that?

China: The Cultural and Legal Context For Sex-Selection Abortion

China's one-child policy is an essential ingredient in any analysis of the Chinese criminal laws under discussion. For twenty-five years, Chinese families have been limited to one baby each. This policy represents an effort by the country to cope with an alarming birth rate that threatens to produce a Malthusian nightmare of extreme poverty, widespread starvation, and ultimately, dangerously high death rates.

Pursuant to Chinese custom, men support their parents as they age, while women care for their husbands' parents. For this reason, the couple that may only have one child understandably wants that child to be male. As a result, a variety of practices have developed in China, including female infanticide (in which girl babies are killed at birth) and female child abandonment. With the wider availability of genetic testing prior to birth has come an additional practice - sex-selection abortion.

As a result of these varied reactions to the one-child policy, China's younger generations will have too many men, relative to women. Right now, there are about 120 male births for every 100 female births in China, and the ratio is 130 to 100 or higher in some provinces.

The disparity appears, moreover, only to be increasing over time. Some project that there will be 40 million unmarried men in mainland China by the year 2020. Historically, extreme violence -- including war, kidnapping, and rape -- have accompanied such a surplus of unmarried men. Perhaps partly for this reason, China has seen a sharp rise in violent crime over the past ten years.

It would be no exaggeration to say that every one of these developments leading up to the planned criminalization of sex-selection abortions, is tragic and extremely disturbing. Overpopulation, infanticide, child abandonment, sex-selection abortion, and serious disparities in sex ratios, in China, all reflect extreme circumstances, including a level of poverty that few people in the United States can even imagine.

Rather than attempt to judge the behavior that occurs under such circumstances, I will therefore turn my attention to the simpler dilemma of sex-selection abortion in the United States.

Why the Sex-Selection Abortion Dilemma May Be Simpler In the United States

A few facts about this country change the equities a bit when we assess sex-selection abortion in the United States. First, the U.S. does not systematically produce more (or fewer) men than women. For a variety of reasons -- no doubt including the relative wealth here, the existence of a social safety net for the elderly in this country (at least pending proposed Republican "reforms"), and the modern blurring of sex role differentiation -- the people who are intent on having a girl seem to balance, numerically, the people whose hearts are set on a son.

As a result, the practice of sex-selection abortion does not threaten to destabilize the population here, as it does in China, even if it happens regularly.

In addition, U.S. law traditionally protects reproductive freedom. As our Supreme Court precedents currently define it, that means that people have a legal right to have as many children as they physically can have and to prevent or terminate as many pregnancies as they are able to prevent or terminate (at least prior to fetal viability). Because of this legal tradition, a criminal ban on sex-selection abortion would appear to violate basic legal norms in this country.

In short, it would seem that the case for prohibiting sex-selection abortions in the United States is quite weak. Such abortions do not pose a grave threat to the population as a whole, and a ban on the procedure would, on its face, limit reproductive choice.

Is the Issue of Sex-Selection Abortion in the U.S. Really as Simple as It Seems?

For many readers, however, even those who are pro-choice, the matter may not appear quite so simple. Two norms in the United States press against a right to sex-selection abortion: one is an equality norm, and the other is a belief -- shared by many who support abortion rights -- that terminating a pregnancy is a serious act that must not be undertaken for affirmatively bad reasons.

From the perspective of these two sets of values, the absence in the U.S. of the population concerns that drive policymaking in China does not necessarily dictate a different result here as to the legitimacy of a criminal sex-selection abortion ban.

Consider, first, the equality norm. In the United States, federal and state laws prohibit discrimination on the basis of a variety of attributes, including sex. The law of discrimination notably does not, however, govern one's intimate associations. And pregnancy is undoubtedly among the most physically intimate associations that two human beings can have with each other.

Nonetheless, our laws prohibiting discrimination do reflect a strong resistance to the sort of decision necessarily involved in a sex-selection abortion: the decision to kill a developing child because he or she is not the "right" sex. To kill someone because of his or her sex is, in some sense, a hate crime. And our criminal laws have recently tended to punish hate crimes more severely than others.

Furthermore, on a moral and philosophical level, the very foundation of reproductive freedom is in tension with the practice of sex-based abortion. One underlying reason that people have fought for reproductive freedom is to protect women from having the onerous and painful burdens of pregnancy forced upon them alone. The three-Justice plurality opinion said it well in Planned Parenthood v. Casey:

The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.

Because sex-selection abortion is itself a species of sex discrimination, those who support reproductive choice as a matter of gender equality are not very well situated to defend the practice of sex-selection abortion.

In addition to representing a particularly violent example of sex discrimination, moreover, sex-selection abortions in this country indulge the most trivial sort of preference at the cost of a developing being who would otherwise be welcome. Sex-selection abortion is, in other words, the sort of abortion that provides fodder for those who would outlaw the procedure altogether: an abortion for a very bad reason.

Given the various competing considerations, it is likely that existing and future bans on sex-selection abortions would provoke little opposition in the United States. Indeed, in Planned Parenthood v. Casey, the Supreme Court's 1992 decision reaffirming the core holding of Roe v. Wade, the plaintiffs did not even challenge the provision of the Pennsylvania law that prohibited sex-selection abortion.

Though sex-selection abortions may not destabilize the population, and though reproductive choice is a protected freedom in this country, the individual woman's interest at stake in a sex-selection abortion accordingly seems unimportant, while the countervailing harm appears grave.

As in China, though for different reasons, a ban on sex-selection abortions thus might seem to strike a reasonable accommodation between the various interests -- both weighty and weak -- that appropriately make their way into this calculus.

The Problem with Investigating a Woman's Reasons for Abortion

As we have seen, most people can agree that there is no right to choose the sex of one's offspring and - accordingly - no right to sex-selection abortions. Nonetheless, a criminal law prohibiting the procedure could still raise serious difficulties for reproductive freedom in this country.

Consider the enforcement of such a law. If police suspected a woman of having had a sex-selection abortion, they could subject her to the sort of interrogation that might ordinarily accompany a homicide investigation. Conversations that she might have had with friends about her hope for a girl or a boy would be subject to discovery. And the government could scrutinize her treatment of any existing children as well: Does she, for example, favor her daughters over her sons, or vice-versa?

Even if a woman accused of wrongful abortion were found "innocent" after this investigation, the fact of her abortion would have become public knowledge, and she would have suffered the stigma that attaches to this procedure (even when obtained for medically sound reasons).

Also, because it may often be difficult for a person to establish her reasons for terminating a pregnancy, the prospect of a criminal accusation could place a serious chill on the exercise of the right to choice, even for women who have no preference for male or female offspring.

In the end, our moral instincts here may have to remain legally unenforceable. Morally, the decision to terminate a pregnancy on the basis of a baby's sex may be an ugly decision that deserves no protection. But the reality is that the reproductive rights of women who would never abort on the basis of sex depend on the government's staying out of the decision altogether.

If a woman has a right not to be pregnant and a right not to remain pregnant against her will, a consequence of those rights - if they are to be truly protected - is that the government may not pry into her reasons for an abortion. We must hope, instead, that women will prove worthy of the trust and responsibility that is placed in their hands, even as we refrain from finding out whether that trust is warranted.

Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her earlier columns, including those covering topics in sex discrimination, criminal law, and criminal procedure, may be found in the archive of her work on this site.

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