Research Matters: Sital Kalantry on “Sex Selection in the U.S. and India: A Contextualist Feminist Approach”

Research Matters is a biweekly feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Sital Kalantry, Clinical Professor of Law, is the founder of the Law School’s International Human Rights Clinic. She wrote “Sex Selection in the U.S. and India: A Contextualist Feminist Approach” for an upcoming edition of the Journal of International Law and Foreign Affairs, published at the UCLA School of Law. In the article, Kalantry develops an approach to understand sex selection in the United States and India from the lens of women’s equality.

Q. What made you interested in this issue? 

A. I noticed a trend in state legislatures in the United States of enacting prohibitions on abortion when a woman is using it as a way to select the sex of her child. Seven states have passed sex selection bans, bills are pending to ban sex selection abortion in ten states, and a bill has been reintroduced in the U.S. Congress. The legislative hearings and debates have made extensive reference to the widespread practice of aborting female fetuses in India and China. The practice has been so widespread in India that in some regions men outnumber women by 15 to 20 percent. As way to try to prevent sex selection, India prohibited sex determination tests, which means women are not allowed to find out the sex of the fetus.  

Anti-abortion groups have used information from India and China that is often depicted inaccurately to convince U.S. legislatures to restrict the reproductive rights of American women.  I wrote about this for Slate.

Q. Does sex selection occur in the United States?

A.  In the U.S., the national at-birth sex ratio is very normal. There is no indication that the general population favors children of just of one sex. Anecdotal evidence shows that some families are sex- selecting (often by using sperm-sorting or PGD—which are pre-implantation technologies) to balance their families.  So if people have two boys and they really want a girl, they might utilize technology to ensure they have a girl. One well-known study found that Asian immigrants from certain countries who have two girls may be sex-selecting in favor of boys for their third child. It may be important for those families to have at least one son. But these families are a small fraction of the U.S. population as a whole.

Q. How do you propose we look at sex selection in the United States, India, and other countries?

Feminists and other people who are concerned about women’s equality have struggled with how to approach sex selection globally. The traditional liberal feminist position holds that a woman’s right to bodily autonomy is paramount and no government should ever prohibit sex selection because it impinges on reproductive rights. On the other hand, the contextualist feminist approach prioritizes women’s equality, but suggests that the context of the sex selection should be taken into account. This approach values women’s autonomy but also suggests that it is important to consider the impact of sex selection on women as a group. 

The only tool we have to determine whether or not sex selection is occurring on a widespread basis is the at-birth sex ratio.  A sex ratio that reveals that far fewer girls are born than we would otherwise expect suggests that sex selection in favor of boys is widespread.  But if only a small section of the population is sex-selecting, their behavior is not likely to change the overall at-birth sex ratio. Additionally, if some people select in favor of girls and others select in favor of boys, their behavior taken together is not likely to have an impact on the overall at-birth sex ratio.  In the United States the sex ratios do not show widespread preference in favor of any sex. In India, the ratio does – in favor of boys.  And therefore there has been no negative impact on women as a group in America.

On the other hand, in India some studies have pointed out that because many men have no prospect of marrying due to the shortage of women (which has occurred as a result of sex selection), trafficking and violence against women may have increased.

Q. What’s next for you and this work?

A. I am working with Asian-American women’s rights organizations in the United States and India on a project to engage with the situation in India.  Asian-American rights groups have pointed out that laws prohibiting sex selection abortion in the United States will have a discriminatory impact on Asian-American women who will be assumed to be obtaining an abortion for a sex selection purpose even if they are not.   As part of a project undertaken by the International Human Rights Clinic at the University of Chicago Law School, students will travel to India, interview women, NGO activists, and government officials to understand why sex selection exists, the consequences of it, and the laws and policies that India has developed to limit it.  We hope to bring an accurate framing of the Indian laws and situation to the state legislatures who are currently considering banning sex selection in the United States.

As part of this project, we are also working with economists to analyze recent U.S. census numbers and other data to understand the extent of sex selection in the United States. In