Over the past decade, eight states have banned abortions motivated by sex selection, and nearly half of all state legislatures have introduced bills that would prohibit the termination of pregnancies based on the sex of the fetus. However, this legislation is based on a misleading interpretation of statistical information and has the potential to unleash a wave of restrictions on abortion rights says Sital Kalantry, clinical professor of law at Cornell Law School and author of the new book, Women's Human Rights and Migration: Sex-Selective Abortion Laws in the United States and India.
"While I think that the laws are likely unconstitutional, if the question ever reaches the Supreme Court and the court finds the bans to be constitutional, it will open the door to many other restrictions that create categories of acceptable and unacceptable motives," Kalantry said at a celebration of her book on October 6 at Myron Taylor Hall.
State legislative proposals emerged after a 2008 article in the Proceedings of the National Academy of Sciences reported that there was a male-biased sex ratio among U.S.-born children of Chinese, Korean, and Indian parents. The authors of the article suggested that the deviation found in the 2000 U.S. Census was comparable to that documented in China, India, and South Korea.
Kalantry, however, said that sex-selective abortions are not a widespread problem in the United States, and what the data suggests is that there are a few thousand "missing" Asian American girls-either because of the abortion of female fetuses or the use of assisted reproductive technology such as in vitro fertilization and sperm-sorting. By comparison, Kalantry said that there are more than 60 million girls "missing" just in India.
Her research of newer demographic data also shows that a fraction of Asian Americans who already have male children may be selecting in favor of girls. In addition, a small number of Asian Americans, who already have female children, may be selecting in favor of boys.
"One plausible interpretation of the data is that a small number of Asian Americans are acting to balance their families to ensure that they have at least one girl and one boy," Kalantry said. "They don't necessarily act out of a son preference or a daughter aversion."
In India, however, the motivation for parents who select for sex is to ensure a male heir while at the same time having a fewer number of children. This practice has been driven by several factors, including the practice that families of girls offer dowries, fewer economic opportunities for girls, and the need for male sons to provide for their parents when they age, Kalantry said.
Although it is illegal in India for doctors to reveal the sex of a fetus to the mother, sex-selective abortion has led to a male surplus in the country, which is correlated with greater sexual harassment, rape, and early child marriage, Kalantry said. She added that there has been no similar demographic shift in the United States.
Pointing to the different motivations for sex-selective abortion in India and the United States, Kalantry argues there should be a new methodology for policy makers and activists to evaluate such cross-border practices. In her book, Kalantry proposes what she calls a transnational feminist legal approach, which would examine the societal context, individual motives, and other factors in both the country of origin and the migrant-receiving country.
"Moving beyond stereotypes and de-contextualized information, I suggest that an in-depth comparative study is necessary to properly assess what concerns immigrant women's practices pose for women's rights and equality in migrant-receiving countries," Kalantry said.
Sherry Colb, Professor of Law and Charles Evans Hughes Scholar at Cornell Law School, said at the panel discussion that she found Kalantry's emphasis on the impact of sex-selective abortions on the population, as opposed to the intentions of women who seek such abortions, to be a valuable contribution to discussions of disparate treatment and disparate impact in anti-discrimination law and in constitutional equal protection jurisprudence.
"In Kalantry's analysis, the impact on the population determines whether it is appropriate to regulate or not," Colb said. "In India, Kalantry concludes it is appropriate to regulate because of the impact on the population. In the United States, it's not. This is a very useful lesson because our law simply does not take impact seriously enough."