Enhancing reproductive justice transnationally: an equality-based approach to sex-selective abortion laws in India

Abstract

Starting in the 1970s, with the introduction of amniocentesis and ultrasound tests used to identify the sex of the fetus, some people in India began to selectively terminate their pregnancies to ensure they had a male child. Troubled by such gender biased sex selective abortions, a feminist movement pushed the Indian government to enact a law - the PCPNDT Act - to prevent people from learning the predicted sex of any fetus. Since the early days of the movement to eradicate sex-selection in India, feminists struggled with how to reconcile the right of a woman to reproductive autonomy with a restriction on her choice if it was being exercised to abort a female fetus. Leaders of the early movement to ban sex selection resolved this contradiction by what we call the “anti-discrimination approach.” They argued that a woman could be prevented from terminating her pregnancy if she were doing it to select the sex of her child, because such a choice is discriminatory. We believe that Indian feminist scholars and activists inadvertently undermine reproductive rights both domestically and globally by justifying a legal prohibition on sex-selection in India by using an anti-discrimination framework. This same rationale put forward by Indian feminists to ban gender-biased abortion is consistent with the agenda of the anti-choice movement, which has coopted it. They have used the anti-discrimination narrative to successfully push for restriction on sex-selective abortion around the world, including in the United States. In legislative debates in the United States, anti-choice actors have argued that gender-biased abortion is discriminatory against fetuses. Although we do not take a position on whether or not Indian feminists should continue to support the PCPNDT Act, which bans sex-determination and prohibits the use of sperm-sorting and IVF for sex-selection purposes, we argue that they should consider adopting an equality-based approach. An equality-based approach calls for the regulation of reproductive technology only if it negatively impacts women’s and girls’ equality in society. We propose a framework that examines women who are impacted by a prohibition on sex-selection as well as the consequences of sex-selection in society. The equality-based approach is flexible and can lead to different solutions based on the situation. An equality-based approach is both consistent with the goals of Indian feminists and will not likely be coopted by anti-abortion advocates around the world.