In a perfect world, sex selection would not exist. Parents would not prefer a male child, even to achieve a gender balance in their offspring. Vulnerable women would not be subjected to abortions, including late-term abortions because they are carrying a female child, or be required to be continually pregnant until a male is born.
The increase in trafficking of women due to adverse sex ratios would dry up and alleged associated ills such as an increased number of rapes, abduction and wife-sharing would end. At the political level, the predominant number of men would not re-enforce male control over political power.
However, it is not a perfect world, and so we are confronted with efforts to ban sex selection to stop discrimination against females, such as those of MP Mark Warawa in Bill M-408.
The family pressures through which sex selection are sometimes required and the surrounding culture of discrimination against women surely constitute a grave problem, especially in countries with wildly skewed sex ratios like India and China. Such circumstances have led the United Nations Human Rights machinery to attack all sex selection. The Committee on the Elimination of Discrimination Against Women has concluded that it is discriminatory and constitutes “violence against women.” It has not specified whether the victim is the female fetus, the mother, or women in general.
In 2002 the United Nations Special Session on Children clearly described sex selective feticide as gender-based violence. This is despite the fact that the Convention on the Rights of the Child defines a child as “a human being,” meaning that arguably the human fetus is not a proper subject for concern under the Convention.
However, the problem of sex selection is not universal. Some studies in the United Kingdom, the United States and the Netherlands show prospective parents exhibit either no gender preference or a slight preference for females. In Canada, male preference appears to be essentially limited to a few immigrant communities.
The Canadian situation demonstrates perfectly how a clash of principles can result in an unprincipled result. Sex selection achieved through using assisted reproductive technologies is banned under the Assisted Human Reproductive Act, though permitted through abortion as a human right. This anomaly provides women with the worst possible result, that is legal sex selection but only through the most difficult means of obtaining it.
Advocates of abortion rights who simultaneously wish to ban sex selection find themselves on a slippery slope. It is reported that in the United States about 90 per cent of women who learn they are carrying a Down’s syndrome fetus have an abortion. Some disability rights advocates will argue that viewing sex selection as discriminatory logically opens the door to banning the termination of a disabled fetus too.
It is common where a problem exists to reach for a human rights argument to fashion a solution. However, the issue of sex selection should not be burdened with the language of discrimination, violence against women, immorality and unethical conduct. Rather, it should be regarded as a serious social problem in some countries. The focus should not be on sex selection per se, but rather on its societal effects. Sex selection should be regarded as a legally neutral event, unless circumstances indicate the need for legal sanction.
Where it is causing grave societal problems states should be permitted to take action to prevent the troubling consequences of a skewed sex ratio. However, this should be recognized as a necessary limitation on human liberty that is justified by its particular context, in the same way that the courts have concluded that the rights granted under the Canadian Charter of Rights and Freedoms can be infringed only where the societal concerns are pressing and substantial. Arguments that all sex selection is discriminatory and thus should be illegal must be trumped by the right of a woman or a couple to choose, even where one despairs at the choice they are making.