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Keywords:

  • sex selection;
  • gendercide;
  • sex selection regulation;
  • gender imbalance;
  • son preference;
  • family balancing;
  • microsort;
  • nation of bachelors;
  • bare branches;
  • missing girls

Abstract

  1. Top of page
  2. Abstract
  3. I. INTRODUCTION: SEX SELECTION IN THE 21ST CENTURY
  4. II. REPRODUCTIVE TECHNOLOGY AND THE CORE MOTIVATIONS FOR ENGAGING IN SEX SELECTION
  5. III. THE GLOBAL IMPACT OF SEX SELECTION
  6. IV. A CALL FOR REASONABLE REGULATION ALLOWING SEX SELECTION ONLY FOR MEDICAL NECESSITY
  7. V. CONCLUSION: LEGAL AND CULTURAL RESPONSES TO GENDERCIDE

In the midst of a genetic revolution in medicine, Assisted Reproductive Technology (ART) has become a well-established technique to help infertile women achieve pregnancy. But many women are now turning to ART not just to circumvent infertility, but consciously to shape their families by determining the sex of their children. Many patriarchal cultures have a gender preference for males and to date have used technological advances in reproductive medicine to predetermine the sex of the child being born. Women have sought sex-selective abortions, where the pregnancy was being terminated solely on the basis of the sex of the unborn fetus. The combination of ART advances and gender preference has led to the disappearance of at least 100 million girls from the world's population leading to a mass gendercide. This article examines the societal impact of unbalanced gender ratios and the need to regulate sex selection to avoid nations of bachelors.


I. INTRODUCTION: SEX SELECTION IN THE 21ST CENTURY

  1. Top of page
  2. Abstract
  3. I. INTRODUCTION: SEX SELECTION IN THE 21ST CENTURY
  4. II. REPRODUCTIVE TECHNOLOGY AND THE CORE MOTIVATIONS FOR ENGAGING IN SEX SELECTION
  5. III. THE GLOBAL IMPACT OF SEX SELECTION
  6. IV. A CALL FOR REASONABLE REGULATION ALLOWING SEX SELECTION ONLY FOR MEDICAL NECESSITY
  7. V. CONCLUSION: LEGAL AND CULTURAL RESPONSES TO GENDERCIDE

When a son is born,

Let him sleep on the bed,

Clothe him with fine clothes,

And give him jade to play . . .

When a daughter is born,

Let her sleep on the ground,

Wrap her in common wrappings,

And give broken tiles for playthings.2

In the midst of a “genetic revolution in medicine,”3 Assisted Reproductive Technology (ART) has become a well-established technique to help infertile women achieve pregnancy.4 But many women are now turning to ART not just to circumvent infertility, but consciously to shape their families by determining the sex of their children.5 ART now comprises a variety of techniques: gender selection kits containing special vitamins and hormones along with carefully tailored diets; innovations in spinning and sorting sperm; and a process of fertilizing a woman's ovum with either X or Y sperm, then implanting the fertilized ovum into the uterus.6 Some sex-selection techniques are more drastic, including aborting the fetus and killing the child of the undesired sex.7 Whatever the method, sex selection has led to a significant and growing gender imbalance in the world population.8 In the United States, sex selection “is becoming a multimillion-dollar industry.”9

Do these sex-selection techniques constitute a logical component of reproductive freedom, or do they serve to perpetuate gender discrimination, particularly in countries or cultural communities where there is deep-rooted bias against women? Developments in reproductive technology pose a serious ethical dilemma, with some medical ethicists concluding that sex-selection technology represents a new commodification of medicine.10 This Note explains how these new sex-selection technologies have contributed to gendercide, the killing of female fetuses solely based on their gender.11 Indeed, the United Nations estimates that up to 200 million women and girls are demographically missing.12 In order to prevent a worsening of an already dangerous sex imbalance, this Note concludes with a proposal to implement regulations restricting the use of sex-selection technologies to cases of medical necessity.

With the emergence of new reproductive technological advances, the ability to produce children of a prespecified gender is easily achievable. After a generation chock-full of advances in reproductive medicine, ART can now control baby making in a radically new way.13 No longer is ART limited to issues of infertility; it has now developed the facility to shape families much more fundamentally. The ability to choose a baby's sex touches not only upon one of the deepest mysteries of procreation, but also suggests proactive control over the determination of a major component of the basic identity of each child. This power may, however, be dangerous. Indeed, the dramatic alteration of sex ratios, with attendant serious social disruption, strongly suggests that a reconsideration of this issue is warranted.

In Section II, this Note examines the advances in medical technology which enable couples to choose the gender of their future children. In order to assess the impact of these changes, the section explores the core motivations underlying sex selection, including medical necessity, gender preference, and family balancing. Section III explores the global consequences of untrammeled sex selection. These include sex-selective abortions, infanticide of girls, bride trafficking, underage marriages, polyandry, and a cultural devaluation of women. Section IV proposes legal regulations limiting the use of sex-selection technology to cases involving medical necessity. These regulatory measures must be accompanied, however, by cultural changes in order to be effective at reversing gendercide, a worldwide diminishment in the numbers and value of women.

II. REPRODUCTIVE TECHNOLOGY AND THE CORE MOTIVATIONS FOR ENGAGING IN SEX SELECTION

  1. Top of page
  2. Abstract
  3. I. INTRODUCTION: SEX SELECTION IN THE 21ST CENTURY
  4. II. REPRODUCTIVE TECHNOLOGY AND THE CORE MOTIVATIONS FOR ENGAGING IN SEX SELECTION
  5. III. THE GLOBAL IMPACT OF SEX SELECTION
  6. IV. A CALL FOR REASONABLE REGULATION ALLOWING SEX SELECTION ONLY FOR MEDICAL NECESSITY
  7. V. CONCLUSION: LEGAL AND CULTURAL RESPONSES TO GENDERCIDE

A. REPRODUCTIVE TECHNOLOGY IN GENDER SELECTION

Developments in reproductive technology have transformed fertility science and the opportunities for previously infertile women to bear children.14 The term “sex selection” embraces a variety of practices including selecting embryos for transfer and implantation following in vitro fertilization (IVF), separating sperm, and selectively terminating a pregnancy.15 A 2005 study examining the demand for sex selection found that 41 percent of infertility patients surveyed would use preimplantation sex selection if it were offered to them at no cost, and half of those women would still opt to choose the sex of their baby if they had to pay for the opportunity.16

Developed in the early 1990s, preimplantation genetic diagnosis (PGD) allows couples to prevent a pregnancy affected by a genetic condition or chromosomal disorder.17 PGD is a technique used to identify genetic defects in embryos created through IVF prior to transferring them into the uterus.18 The same technology has emerged as a reliable sex selection method.19 MicroSort is the newest development in reproductive technology.20 A technique available through the Genetics & IVF Institute, MicroSort “is used before conception to separate sperm into those that either primarily produce girls or those that primarily produce boys.”21 The sorted sperm sample is then combined with intrauterine insemination (IUI)22 and, if necessary, IVF and intracytoplasmic sperm injection (ICSI)23 to achieve pregnancy.24 Using the MicroSort sperm separation process to increase the probability of conceiving a girl has resulted in 92% of the babies born female.25 The success rate for male babies is 81%.26

B. THREE CORE MOTIVATIONS FOR ENGAGING IN SEX DETERMINATION

Many couples with a genetic predisposition to certain life-threatening diseases turn to PGD or MicroSort to select their child's gender in an effort to avoid passing on sex-linked genetic diseases.27 But the astonishing dissemination of modern sex-selection technology has generated concern over future sex-ratio imbalances that would reinforce the strong gender bias favoring males.28 Viewing gender preference from a global perspective, many countries have sought to ban sex selection, often in reaction to the dramatic gender imbalances found in India and China, which together account for nearly 40 percent of the world's population.29

In South Asia, millions of infant girls have been aborted or abandoned at birth or directly killed.30 In large parts of Asia, “the sex ratio at birth has risen to unnatural and historically unprecedented levels over the past two decades—and in many spots this tendency appears to be continuing unabated, or even to be intensifying further.”31 The two most populous nations, India and China, “share a similar mix of patriarchal culture; family structure; agrarian histories; rapid economic, technological, and scientific development; and robust governmental initiatives for population control. In toto, this proves a fatal mix for potential females.”32 According to a recent report by the United Nations Children's Fund (UNICEF), 43 million girls and women are missing from India's population.33 The Indian Census of 1991 found 945 girls born for every 1,000 boys born.34 By the 2001 Census, the sex ratio had diminished, with only 927 girl babies for every 1,000 boy babies.35 Economist Amartya Sen estimated that 50 million women are missing from China's population.36 In sum, systematic gender discrimination in South Asia has substantially contributed to the worldwide gender gap of 200 million, largely attributable to sex-selective abortions and female infanticide.37 In India, this potent gender preference has been abetted by the persistence of a dowry system, making girls far more expensive than boys.38 One expert quoted Indian families who justify their decision by saying, “Better to pay $38 for an abortion now than $3,800 for a dowry later on.”39 In China, the strong bias against girls has been exacerbated by the government's strict One Child Policy.40 Chinese parents “who have more children can be fined, lose their jobs, or be forcibly sterilized.”41

1. Cultural or Religious Bias in Favor of Male Offspring

“Grooming a girl is like watering a neighbor's garden.”42 This Indian proverb captures the strong and pervasive culture bias favoring sons over daughters. Certain Asian cultures, such as those in India, Pakistan, South Korea, and both Mainland China and Taiwan, have traditionally placed great value on producing a male heir.43 The primacy of male children is woven into the cultural and religious structure.44 A son is viewed as a permanent member of the family as opposed to a daughter who will eventually leave, go to the home of her husband, and take on the name and customs of her in-laws.45 Sons are perceived as a critical source for family financial maintenance and parental social security and families thus demonstrate a richer emotional and material investment in sons than in daughters.46 The continuity of patriarchal lineage is an essential part of Indian culture: the birth of a son, but not that of a daughter, elevates the family's social standing.47

2. Economic Bias Disfavoring Daughters

Male children are preferred because (i) they have a higher wage-earning capacity, especially in agrarian economies; (ii) they continue the family line; and (iii) they are generally the recipients of a family's inheritance.48 Girls are often considered an economic burden because of the dowry system, and after marriage they typically become members of the husband's family, ceasing to have responsibility for their parents in illness and old age.49 Son preference is manifested prenatally, through sex determination and sex-selective abortion, and postnatally through neglect and abandonment of female children, which leads to higher female mortality.50

3. Family Balancing: Gender Variation within the Family

MicroSort and many other IVF clinics have begun offering gender-selection methods to couples seeking to balance the sexual gender in their families.51 Currently, although the United States does not regulate sex selection, professional organizations such as the American Society for Reproductive Medicine (ASRM) have established guidelines for their members.52 To date, these private covenants are the only limitations on the practice and methods of sex-selection technology. Sex selection for social reasons has been banned in most industrialized countries.53 Opponents have deemed the allowance of sex selection as the opening of a Pandora's box where choosing the gender for social reasons would open door to selecting the hair color, eye color, or personal traits or, in short, picking the designer baby.54 Section III argues that the abnormal sex ratios which have resulted from gender selection is no longer merely an Asian problem; rather, it is a global war on unborn girls.

III. THE GLOBAL IMPACT OF SEX SELECTION

  1. Top of page
  2. Abstract
  3. I. INTRODUCTION: SEX SELECTION IN THE 21ST CENTURY
  4. II. REPRODUCTIVE TECHNOLOGY AND THE CORE MOTIVATIONS FOR ENGAGING IN SEX SELECTION
  5. III. THE GLOBAL IMPACT OF SEX SELECTION
  6. IV. A CALL FOR REASONABLE REGULATION ALLOWING SEX SELECTION ONLY FOR MEDICAL NECESSITY
  7. V. CONCLUSION: LEGAL AND CULTURAL RESPONSES TO GENDERCIDE

A. ABNORMALLY HIGH SEX RATIOS

The majority of the over 100 million women demographically vanished from the world's population are missing from China and India.55 The majority of the remainder are estimated to be missing from the populations of Afghanistan, Bangladesh, China, India, South Korea, Pakistan, Taiwan, and Iran.56 This section will briefly examine three countries of particular interest: South Korea, India, and China. South Korea has succeeded in substantially reducing the differential sex ratio; India features marked regional differences in its sex ratios; and China has a unique One Child Policy which has led to an increased preference for males.

South Korea was the first country to report significant differential sex ratios at birth, suggesting a widespread practice of fetal sex selection.57 The widespread use of sex-selective technology in South Korea preceded that of other Asian countries.58 Beginning in the mid-1990s, the government advanced a public awareness campaign warning of the dangers of such distortions. Laws forbidding sex-selection technology were more strictly enforced, and there was a widespread and influential media campaign focusing on the anticipated shortage of brides. Together, these actions led to a decline in the male-to-female sex ratio from 116 in 1998 to 110 in 2004.59 This sex ratio is still, however, dramatically skewed. The public awareness campaign launched in South Korea has so far reversed the population impact of prebirth sex selection and may have partially counterbalanced the cultural predisposition toward son preference.60

India “now has the distinction of being known as the nation that likes to ensure that girls are never born.”61 One egregious example is Punjab. Census data from 1991 reported that in Punjab all districts but one recorded a sex ratio of fewer than 900 girls to 1,000 boys.62 More recent census data reveals, however, that most of the districts now record a ratio of 850 girls per 1,000 boys.63 In fact, as many as 10 districts showed a sex ratio which is fewer than 800 girls for 1,000 boys.64 The Chandigarh-based Institute for Development and Communication reported that, during 2002–2003, every ninth Punjabi household in the state acknowledged sex-selective abortion with the help of prenatal sex-determination tests.65

China has developed a low-fertility culture due in part to the unique One Child Policy introduced by the government in 1979.66 Combined with a strong tradition of son preference, this national policy has led to the birth of approximately 1 million excess male births every year.67 Daughters are lost through sex-selective abortion, excess female infant mortality, and neglect or mistreatment of girls up to age 3, in cities as well as rural areas.68 There has been a steady increase in the reported sex ratio at birth from 106 in 1979, to 111 in 1990, and to 117 in 2001, increasing to as high as 130 in some rural counties.69 By the third decade of the 21st century, one research report conservatively predicts 29–33 million young surplus males in China.70

Sex ratios vary widely throughout the world, evincing a global pattern of sex selection disfavoring females. Some examples of disparate sex ratios in selected nations illustrate the widespread nature of this phenomenon:

Table 1.  Sex ratios of selected jurisdictions (males born per 100 females)71
Afghanistan107Oman126
Andorra107Pakistan106
Bahrain134Palau116
Bangladesh105Pitcairn108
Bhutan112Qatar203
Brunei107Samoa108
Faeroe Islands106Saudi Arabia122
Guyana108Solomon Islands107
Jordan106United Arab Emirates210
Kuwait150Western Sahara113
Libya107World102

Nicholas Eberstadt, a researcher at the American Enterprise Institute for Public Policy Research, warns that “the global war against baby girls is expanding.”72 Widely disparate sex ratios are also in evidence in Europe and North America. European demographic analysis reveals problematic signs of male preference in Greece, Macedonia, and Yugoslavia.73 In the United States, sex ratios at birth for the Chinese American population, the Japanese American population, and the Filipino American population, as well as for the Asian American population as a whole, are disturbingly high.74 In Canada, “certain communities in British Columbia and Ontario, with large proportions of immigrants from India and China, are experiencing the same unusual sex ratios seen in those Asian countries.”75 In Coquitiam, British Columbia, where Chinese immigrants represent 12 percent of the population, the gender ratio in 2000 was 116 boys for every 100 girls born.76 A similar trend may be seen in Brampton, Ontario, home to many Indian Sikh immigrants, which in 2001 reported 109 boys born for every 100 girls.77

These statistics suggest the prevalence of prebirth sex selection by Asian immigrant populations in North America. According to one report, the “old methods were a quick prayer before conception or a backroom abortion afterwards.”78 But now “well-to-do Indians are increasingly picking a new third option: making a six-day pilgrimage to an American fertility clinic, where the sex of their baby will be chosen using an $18,000 procedure called ‘preimplantation genetic diagnosis.’”79 One major sex-selection clinic which aggressively advertises for business from Indian parents is The Fertility Institutes, located in Los Angeles and Las Vegas.80 The Fertility Institutes claims to run the largest sex-selection program in the world.81 The medical director of its gender-selection program, Dr. Jeffrey Steinberg, stated that one-quarter of his Indian patients traveled from India to Los Angeles for the procedure, 90 percent of requests from Indian clients were for boys, and The Fertility Institute's Web page on sex selection generated 12,000 hits a month from India.82

B. NATIONS OF BACHELORS: DEVIANT BEHAVIORS ATTRIBUTABLE TO GENDER IMBALANCE

A markedly uneven gender distribution resulting in far more men than women is socially problematic and possibly devastating. Experts report that such a surplus of unmarried men will lead to increased violence including war, kidnapping, and rape.83 A shortage of adult females increases the prevalence of child marriage and the selling of young girls into the sex trafficking underworld.84 Moreover, the cultural norm disfavoring daughters makes a mockery of international norms on gender equality. One Chinese pediatrician's experience illustrates the dilemma: “If a baby boy gets sick, its parents will sell everything they own to save their son's life. If it's a girl, very often the parents . . . just stop the treatment and take the baby home.”85 Whether by preimplantation sex selection, gender-based abortion, or female infanticide, the resulting gendercide carries enormous implications for global stability.86

Gendercide also results in the creation of a large cohort of young men who will have difficulty finding wives and beginning their own families.87 The Chinese term such bachelors “guang gun-er” or “bare branches.”88 They are “branches of the family tree that will never bear fruit, [because][t]he girls who should have grown up to be their wives were instead disposed of.”89 China has already begun to witness an increase in kidnapping and selling of women to provide brides for those who can afford the price.90 Another consequence is “fraternal polyandry,” in which “one woman is forced to marry her husband's brothers, and is expected to produce sons for each of them.”91 Yet another result is the increase in the number of child brides, an ancient Indian custom made more prevalent by the paucity of women.92

By 2020, the Chinese and Indian “bare branches” will likely constitute 12 to 15 percent of the young adult male population.93 Indian scholars have noted “a very strong relationship between sex ratios and violent crime rates in Indian states, which persists even after controlling for a variety of other possible variables.”94 Sociologically, the explanation is straightforward: “young adult men with no stake in society—of the lowest socioeconomic classes and with little chance of forming families of their own—are much more prone to attempt to improve their situation through violent and criminal behavior in a strategy of coalitional aggression with other bare branches.”95 Because China and India contain nearly 40 percent of the world's population, the diminished prospects for democracy, stability, and peace due to the extremely low status of women in those societies may well, in an interconnected world, spread far beyond Asia.96

Paradoxically, as women's relative numbers diminish, their value does not increase: “The problem is that the woman herself does not hold her value; it is actually the males around her that hold her value—her father, her husband, and then her in-laws.”97 In India, the growing scarcity of potential brides has not caused parents to start paying a “groom price;” instead, dowry prices have increased.98 The connection between female value and gendercide is plain: “[U]nless that daughter in utero has value, she's not going to be born . . . and that's what's going to determine the ratio of young adults twenty years from now.”99

IV. A CALL FOR REASONABLE REGULATION ALLOWING SEX SELECTION ONLY FOR MEDICAL NECESSITY

  1. Top of page
  2. Abstract
  3. I. INTRODUCTION: SEX SELECTION IN THE 21ST CENTURY
  4. II. REPRODUCTIVE TECHNOLOGY AND THE CORE MOTIVATIONS FOR ENGAGING IN SEX SELECTION
  5. III. THE GLOBAL IMPACT OF SEX SELECTION
  6. IV. A CALL FOR REASONABLE REGULATION ALLOWING SEX SELECTION ONLY FOR MEDICAL NECESSITY
  7. V. CONCLUSION: LEGAL AND CULTURAL RESPONSES TO GENDERCIDE

Given the evidence of a “global war against baby girls,”100 serious consideration needs to be given to regulating sex selection and limiting it to situations of medical necessity. This section outlines some legal and regulatory possibilities, but it can only commence a crucial dialogue on the scope of reasonable regulation of an emerging and rapidly developing technology which has been contributing to gendercide.

A. UNITED NATIONS INITIATIVES

The United Nations has in the past successfully brought global awareness to the plight of women and to the violations of serious human rights.101 For example, many countries “have responded positively to the U.N. initiatives to stop female genital mutilation [FGM].”102 Unfortunately, a similar effort at international cooperation on sex selection has not yet met with success. In 2007, the United States and South Korea jointly sponsored a resolution at the United Nations Commission on the Status of Women (CSW) calling for the elimination of infanticide and gender selection.103 The resolution was withdrawn due to opposition from China, India, and several other countries.104 China and India lobbied against this resolution, fearing that their country's failure to control these two epidemics would be highlighted in a global arena.105 Another rationale for the reluctance of some nations to support the resolution is its perceived impact on abortion rights.106 For example, the Abortion Rights Coalition of Canada has issued a position paper on sex selection, arguing that “we cannot restrict women's right to abortion just because some women might make decisions we disagree with.”107 There is clearly a legal and cultural tension between abortion rights and the CSW's theme for its 2007 session, “The elimination of all forms of discrimination and violence against the girl child.”108 The conflict between preserving reproductive autonomy and ending gendercide is, of course, quite problematic.109 Resolution of the issue will require intensive effort and political acumen.

But the millions of missing girls are not only those unborn; many of them were born and then killed. A compromise pointing toward a diminution of sex-selection technology's capacity to engraft an increasingly harmful son preference upon the world population is imperative.110 A budding consensus for such a compromise may be limned from the articulated views of many participants at the 2007 United Nations session who “agreed that the well-being of girls in society should be underpinned by a robust set of laws that safeguarded the rights of all children and punished violators without exception.”111 But fair warning is in order: the ethical, legal, and cultural issues will only increase in difficulty, as medical ventures in baby making continue their rapid evolution and proliferation. Experiments in fertility-promoting measures, such as uterus transplants, artificial wombs, and cloning are underway, and have already provoked controversy.112

B. NATIONAL REGULATION

Regulation of issues related to gendercide has had a fitful start in India and China.113 But both countries are implementing legal changes aimed at improving the lot of women and girls. India has “taken the life-cycle approach for the betterment of the girl child, focusing on improvements in sex-ratio, education, nutrition, health, and the elimination of violence and discrimination.”114 India has also established a commission “to oversee proper enforcement of children's rights and effective implementation of laws relating to children.”115 Indian law has since 1994 prohibited sex selection.116 Specifically, that law made it a crime to “conduct or cause to be conducted any pre-natal diagnostic techniques including ultrasonography for the purpose of determining the sex of a foetus.”117 Prenatal diagnostics, including ultrasound, were to be used only when there is an independent medical need.118 In 2003, the administrative rules implementing the 1994 Act were amended to regulate the sale of ultrasound machines.119 These amendments prohibited the distribution of any ultrasound or other machine capable of “detecting the sex of the foetus” to any laboratory, clinic, or other person unless the recipient is registered under the Act.120 Other measures taken by the Indian government include a plan to integrate child protection programs under one umbrella and an amendment to the Hindu Succession Act to allow daughters and widows equal rights to ancestral property.121 Despite these legal and administrative efforts, India's efforts to prevent sex selection have not yet made much headway against the forces of tradition armed with modern medical technology. There is now “substantial data that reveals that private as well as government facilities are used for sex-selective abortions despite the law that prohibits it.”122 Over 300 doctors have been prosecuted for violating the law, but few convictions have resulted, and the medical community has pressured the government not to prosecute doctors who reveal the sex of the fetus to the mother.123 In a 2003 ruling on a lawsuit brought to demand more rigorous enforcement of the Pre-Natal Diagnostic Techniques legislation, the Indian Supreme Court acknowledged its poor implementation, but its ruling only called for local governments to enforce it more strictly.124

In China, the government has similarly criminalized sex-selective abortions and the use of ultrasound technology to ascertain the sex of the fetus.125 In 2005, a further amendment was submitted to the Standing Committee of the National People's Congress extending the ban to anyone who assists another with fetal sex selection and providing for substantial fines and a 3-year jail sentence for violators.126 While it may be too soon to track the efficacy of these measures, one sign of broader acceptance is the decision by 29 provincial congresses to enforce regulations mandating “that all child gender selections without any medical necessity should be strictly prohibited.”127

The Council of Europe's 1997 Convention on Human Rights and Biomedicine banned the use of medical technologies to choose a future child's sex, except where required to avoid a serious hereditary gender-linked disease.128 In Great Britain, the use of PGD for sex selection in nontherapeutic cases is prohibited by the Human Fertilisation and Embryology Authority (HFEA).129 In the United States, sex-selection technology is virtually unregulated.130 The Fertility Clinic Success Rate and Certification Act of 1992 provided for the Department of Health and Human Services (HHS) to develop a model program for the certification of embryo laboratories.131 In 1999, HHS promulgated a final notice proposing implementation of such a program, “to be carried out voluntarily by interested states.”132 Federal funds were not allocated to implement this law.133 While the U.S. government has developed regulations involving many of the major aspects of ART practice and research, “direct federal regulation of these programs does not occur.”134 State regulation is quite limited.135

While the approaches taken in India, China, and Europe may not yet be described as successful, at least they have identified the critical problem and have sought to blend legal enforcement with campaigns to change harmful cultural and religious values.136 Admittedly, cultures generally alter very slowly and do not always fall in line behind legal pronouncements. But, by contrast, the United States has been dubbed the “Wild West of reproductive technology.”137 The present unregulated state of American fertility clinics has rendered them a favorite destination for many globe-trotting sex-selection tourists.138 The American insouciance about regulation has led to an exacerbation of the worldwide problem.

Several regulatory schemes may serve as appropriate models for American development. Great Britain's HFEA licenses all fertility clinics and oversees “safe and appropriate practice in fertility treatment and embryo research.”139 To carry out its mission, the HFEA performs four major functions: (1) creating and enforcing a Code of Practice to give “clear operational guidelines” to fertility clinics; (2) maintaining a register of patients and the results of treatments, including the details of any donor involved and any children born; (3) advising patients, donors, and clinics about the issues involved in fertility treatments; and (4) monitoring developments in the field of embryo and reproductive research.140

In the United States, Congress could enact legislation enabling the Centers for Disease Control and Prevention (CDCP)—or a separate agency—to carry out tasks similar to Great Britain's HFEA.141 The U.S. President's Council on Bioethics met in 2003 to consider two working papers, one of which suggested that the widespread use of in vitro fertilization for infertile couples may need federal regulation.142 Commissioners noted that no federal regulation or oversight now exists for a procedure that has produced millions of human embryos, most of which will die, either on their own or through scientific experimentation.143 The Council's working papers complained of the lack of “oversight of how the new biotechnologies . . . affect the well being of the children conceived with their aid, egg donors, or gestational mothers,” and that “there are no limits on what one can do to or with an embryo, so long as one is privately funded.”144 These documents also outlined four primary suggestions on how the U.S. government could regulate ART, including instituting a new regulatory agency, granting new authority to existing regulatory agencies, implementing specific legislative action, and/or utilizing government funding as a regulatory lever.145

Another consideration for American regulators should be the degree and scope of the regulations to be imposed. On these issues, the explicit terms of the Indian legal scheme serve as an exemplar of specific regulation focusing on medical necessity. India's Pre-Natal Diagnostic Techniques Act provides that “no pre-natal diagnostic techniques shall be conducted except for the purposes of detection” of a specific list of medical conditions.146 The allowable conditions include chromosomal abnormalities, genetic metabolic diseases, haemoglobinopathies, sex-linked genetic diseases, congenital anomalies, and “any other abnormalities or diseases as may be specified by the Central Supervisory Board.”147 Moreover, no prenatal diagnostic techniques shall be conducted unless specific characteristics of the patient are established. The pregnant woman must be older than 35; she must have undergone of two or more spontaneous abortions or fetal loss; she must have been exposed to potentially teratogenic agents such as drugs, radiation, infection, or chemicals; she must have a family history of mental retardation or physical deformities such as spasticity or any other genetic disease; or she must have some other threshold condition specified by the Central Supervisory Board.148

To the extent that a consensus is discernable in this rapidly changing area, one articulation of a possible common ground may be found in the European Council's decision to prohibit the “use of techniques of medically assisted procreation . . . for the purpose of choosing a future child's sex, except where serious hereditary sex-related disease is to be avoided.”149 Much debate remains, and the remaining issues will not be soon resolved. What are techniques of medically assisted procreation? What is a serious hereditary disease? But at least the European Council's regulatory formulation suggests a way around the abortion dilemma, which—at least nominally—remains outside the scope of the regulation.150 Whether the United States is ready to develop appropriate regulations limiting sex selection is a political unknown. But, given the history and growth of gendercide, the need could not be greater.

V. CONCLUSION: LEGAL AND CULTURAL RESPONSES TO GENDERCIDE

  1. Top of page
  2. Abstract
  3. I. INTRODUCTION: SEX SELECTION IN THE 21ST CENTURY
  4. II. REPRODUCTIVE TECHNOLOGY AND THE CORE MOTIVATIONS FOR ENGAGING IN SEX SELECTION
  5. III. THE GLOBAL IMPACT OF SEX SELECTION
  6. IV. A CALL FOR REASONABLE REGULATION ALLOWING SEX SELECTION ONLY FOR MEDICAL NECESSITY
  7. V. CONCLUSION: LEGAL AND CULTURAL RESPONSES TO GENDERCIDE

A Malthusian reaction to gendercide and the resulting widely disparate sex ratios might be to suggest that the emerging nations of bachelors will eventually either reverse sex selection or die off. But the adverse consequences of current population trends are already apparent, already worsening, and already spreading around the globe. Enforcing a ban on the use of medical technology for sex selection has been aptly described as “an immediate answer to a problem without an immediate solution.”151 Without cultural change, legal measures will continue to be undermined and ineffective. But the link between the technology and gendered abortions is so clear that nations must find the will and means decisively to implement such laws. At the same time, it is imperative that nations marshal the resources to reverse the culture of degrading women which sex-selection technology has exacerbated. The dream of a world of sons is a global nightmare with untold consequences. Neither nations nor cultures can afford to rest in the face of gendercide.

NOTES
  • 1

    LL.M. in Family Law (with honors), Hofstra University (2007); J.D. Hofstra University (2001). My thanks to J. Herbie DiFonzo, my professor, confidant, and friend. He stimulated a new love of knowledge and provocative thought and for this I will always be grateful. I also thank my husband and two sons for being my inspiration and motivation to better myself every day. And, last but not least, my parents, for always making every dream a reality despite whatever obstacles stood in my way.

  • 2

    Zou Hanru, Unbalanced Ratio Caused by Rural Woes, China Daily, Oct. 13, 2006, at http://www.chinadaily.com.cn/opinion/2006-10/13/content_707335.htm (quoting 3,000-year-old Chinese poem from “The Book of Songs”).

  • 3

    Genetics and Public Policy Center, Reproductive Genetic Testing: What America Thinks 1 (2004), at http://www.dnapolicy.org/images/reportpdfs/ReproGenTestAmericaThinks.pdf.

  • 4

    U.S. Dep't of Health and Human Services, Centers for Disease Control and Prevention [hereinafter CDCP], Assisted Reproductive Technology: Home http://www.cdc.gov/ART/index.htm#Assisted.

  • 5

    See CDCP, National Center for Health Statistics, 2004 Assisted Reproductive Technology (ART) Report[hereinafter ART Report], http://ftp.cdc.gov/pub/Publications/art/2004ART508.pdf (summarizing data provided by U.S. clinics that use ART to treat infertility).

  • 6

    Choosing The Gender Of Your Baby, http://www.genselect.com (discussing special diet, vitamins, and timing of intercourse to achieve baby of the desired sex); see also Center for Genetics and Society, Preimplantation Genetic Diagnosis (PGD) and Screening, http://www.genetics-and-society.org/technologies/other/pgd.html.

  • 7

    Indu Grewal and J. Kishore, Female Foeticide in India, International Humanist and Ethical Union, at http://www.iheu.org/node/1049 (2004) (“The killing of women exists in various forms in societies the world over. However, Indian society displays some unique and particularly brutal versions, such as dowry deaths and sati. . . . As a result of selective abortion, between 35 and 40 million girls and women are missing from the Indian population.”)

  • 8

    G. Serour, Ethical Guidelines on Sex Selection for Non-Medical Purposes: FIGO Committee for the Ethical Aspects of Human Reproduction and Women's Health, 92 Int’l J. Gynecology & Obstetrics 329 (2006).

  • 9

    Osagie K. Obasogie, Designing Your Own Baby, Boston Globe, Aug., 8, 2005, at http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/08/08/designing_your_own_baby/

  • 10

    See Marcia Darnovsky, Revisiting Sex Selection: The Growing Popularity of New Sex Selection Methods Revives an Old Debate, Gene Watch (Jan.–Feb. 2004), http://www.gene-watch.org/genewatch/articles/17-1darnovsky.html (arguing that allowing sex selection “would represent a significant shift towards treating children as commodities and the selection of a child's genetic make-up . . . to parental choice, exercised through paying a commercial company to provide this ‘service’.”)

  • 11

    Theodor H. Winkler, Slaughtering Eve: The Hidden Gendercide, in Women in an Insecure World: Facts, Figures, and Analysis 1-2 Marie Vlachovd & Lea Biason (eds.), (2005), at http://www.dcaf.ch/women/pb_women_ex_sum.pdf.

  • 12

    Id.

  • 13

    See Uthanchai Rochanavibhata, Infertility, Vejthani Hospital Health News (2006), at http://www.vejthani.com/health_infertility.htm.

  • 14

    See ART Report, supra note 5, According to the National Center for Health Statistics, of the 60.2 million American women of reproductive age in 1995, 9.3 million had used some kind of infertility service (medical advice, tests, drugs, surgery, or other treatments), while 2.1 million married couples (representing 7.1 percent of all such couples) are infertile. U.S Dep't of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics, Vital and Health Statistics: Fertility, Family Planning, and Women's Health: New Data From the 1995 National Survey of Family Growth 7 (May 1997), at http://www.cdc.gov/nchs/data/series/sr_23/sr23_019.pdf.

  • 15

    See World Health Organization, Genomic Resource Centre, Sex Selection and Discrimination (2007), at http://www.who.int/genomics/gender/en/index4.html.

  • 16

    See Significant Number of Women Being Treated for Infertility Would Choose the Sex of Their Next Child, News-Medical.Net, Mar. 14, 2005, at http://www.news-medical.net/?id=8372. An identical result was reached in an online poll conducted by BabyCenter.com: 41 percent of 52,816 respondents (as of Sep. 2007) indicated that they desired to select the sex of their baby. BabyCenter.com, Would You Choose Your Baby's Sex?, at http://www.babycenter.com/viewPollResults.htm?pollId=5099.

  • 17

    Reproductive Genetics Institute, PGD, at http://www.reproductivegenetics.com/pgd.html.

  • 18

    J. J. Marik, Preimplantation Genetic Diagnosis, E-Medicine (Apr. 13, 2005), at http://www.emedicine.com/med/topic3520.htm.

  • 19

    See World Health Organization, Genetic Technologies for Sex Selection (2007), at http://www.who.int/genomics/gender/en/index4.html; Robin Elise Weiss, Girl or Boy? Sex Selection Techniques for Everyone Before Pregnancy, About.com: Pregnancy & Childbirth, at http://pregnancy.about.com/od/boyorgirl/p/girlorboy.htm (asserting that PGD is the “most effective” technique in sex selection.); The Las Vegas Fertility Institute, at http://www.lasvegasfertility.net/index.html (claiming a 99.9% success rate in sex selection using PGD). Of course, the process is not without controversy. See Section III, infra at (discussing criticisms of sex selection technologies).

  • 20

    Genetics & IVF Institute, MicroSort General Information, at http://www.microsort.net. The process is currently undergoing a Food and Drug Administration clinical trial. Id. See also Obasogie, supra note 9. (“Businesses such as MicroSort, a sperm sorting service that selects for sex before pregnancy, are part of an ongoing commercial effort to normalize sex selection. . . .”).

  • 21

    Genetics & IVF Institute, MicroSort General Information, supra note 20.

  • 22

    IUI is a medical procedure that involves placing sperm into a woman's uterus to facilitate fertilization. See ART Report, supra note 5, Appendix B, at http://www.cdc.gov/ART/ART2004/appixb.htm#I.

  • 23

    Genetics & IVF Institute, MicroSort General Information, supra note 20. ICSI a procedure in which a single sperm is injected directly into an egg. ICSI is most commonly used to overcome male infertility problems. See ART Report, supra note 5, Appendix B.

  • 24

    MicroSort utilizes flow cytometric separation technology to sort the X (female) or Y (male) chromosome-bearing sperm, with the enriched fraction of sorted sperm used to fertilize an embryo through either IVF or IUI. The fertilized embryo is then transferred into the uterus to achieve pregnancy. See Genetics & IVF Institute, MicroSort Technology, at http://www.microsort.net/technology.php. The MicroSort method was developed by a U.S. Department of Agriculture (USDA) animal physiologist in 1989 who was trying to improve reproductive efficiency in livestock. In his work with pigs, rabbits and cattle, he found he could separate sperm by staining them with a fluorescent dye. Those carrying X chromosomes absorbed more dye and glowed brightly, and the same phenomenon may be observed in human sperm. By the mid-1990s, the USDA technology had been adapted for human sex selection. Id.; see also Genetics & IVF Institute, MicroSort—Frequently Asked Questions, at http://www.microsort.net/faqs.php.

  • 25

    Genetics & IVF Institute, MicroSort Current Results, at http://www.microsort.net/results.php.

  • 26

    Id.

  • 27

    See World Health Organization, supra note 15

  • 28

    Marcy Darnovsky, Sex Selection Goes Mainstream, AlterNet, Sep. 25, 2003, at http://www.alternet.org/story/16837/.

  • 29

    See Amartya Sen, More Than 100 Million Women Are Missing, N.Y. Rev. Books, Dec. 20, 1990, at http://ucatlas.ucsc.edu/gender/Sen100M.html.

  • 30

    See Adam Jones, Case Study: Female Infanticide (1999–2000), Gendercide Watch, at http://www.gendercide.org/case_infanticide.html; Rampant Female Foeticide, Reporting People.org (2004), at http://www.reportingpeople.org/rpcat.asp?a=children&catid=chl&sec=report.

  • 31

    Nicholas Eberstadt, Power and Population in Asia: Demographics and the Strategic Balance, Hoover Inst. Pol’y Rev. (Feb.–Mar. 2004), at http://www.hoover.org/publications/policyreview/3439671.html.

  • 32

    Ashley Bumgarner, A Right to Choose?: Sex Selection in the International Context, 14 Duke J. Gender L. & Pol’y 1289, 1295 (2007).

  • 33

    See India: The Missing Girls, Frontline, PBS.org, Apr. 2004, at http://www.pbs.org/frontlineworld/rough/2007/04/the_missing_girlinks.html.

  • 34

    See India's Female Freefall, CNN.com, June 19, 2001, at http://edition.cnn.com/2001/WORLD/asiapcf/south/06/19/india.ultrasound/index.html.

  • 35

    Id. In the Indian state of Punjab, the demographic fall was even more precipitous, from 875 girls per 1,000 boys in the 1991 Census, to 793 girls per 1,000 boys in the 2001 Census. Id.

  • 36

    Sen, supra note 29.

  • 37

    See Winkler, supra note 11.

  • 38

    See India's Craving for Boy Babies Leads to Bride Shortage, Telegraph.co.uk, July 3, 2003, at http://www.telegraph.co.uk/news/main.jhtml?xml=%2Fnews%2F2003%2F03%2F07%2Fwindia07.xml: Girls are considered a liability, because of the expensive dowries that have to be paid at their weddings. Even the poorest of peasants is under tremendous peer pressure to organise lavish weddings, often by taking out big loans. But boys are an asset. Even the most ineligible comes at a premium, commanding a dowry that can extend over years to a steady demand on the girl's family for money and other goods. Refusal to comply often leads to cases of “bride burning”, a euphemism for murder, which remains rife.

  • 39

    Janice Shaw Crouse, United States Resolution Shanghaied by China and India, Concerned Women for America, Mar. 9, 2007, at http://www.cwfa.org/articles/12532/BLI/reports/index.htm (quoting Indira Patel); see Joan Delaney, Preference for Sons Causing Global Shortage of Women, The Epoch Times, Mar. 16, 2007, at http://en.epochtimes.com/news/7-3-16/52898.html (“In India, where the cost of a dowry for a daughter can be prohibitive, financial pressure is often a reason for resorting to sex selective abortion or infanticide.”)

  • 40

    See Bumgarner, supra note 32, at 1290 n.5 (noting that China's one-child policy was introduced in 1979 to slow population growth); India: The Missing Girls, supra note 33 (“In China, the One Child Policy created heavy financial penalties for couples who had more than one child and led to the murder of female infants.”)

  • 41

    Bumgarner, supra note 32.

  • 42

    Quoted in Kimberly Downing, A Feminist is a Person Who Answers “Yes” to the Question, “Are Women Human?”: An Argument Against the Use of Preimplantation Genetic Diagnosis for Gender Selection, 8 DePaul J. Health Care L. 431, 440 (2005).

  • 43

    See Judith Banister, Son Preference in Asia—Report of a Symposium, U.S. Census Bureau (1999), at http://www.census.gov/ipc/www/ebspr96a.html (analyzing the various levels of son preference in Asian nations); Doo-Sub Kim, Missing Girls in South Korea: Trends, Levels and Regional Variations, 59 Population 865 (2004­–2006), at http://www.cairn.info/article.php?ID_REVUE=POPE&ID_NUMPUBLIE=POPE_406&ID_ARTICLE=POPE_406_0865 (“There is little doubt that motivations for prenatal sex screening and sex-selective abortion stem from strong son preference along with gender discrimination against women.”)

  • 44

    See, e.g., Elizabeth Bumiller, May You be Blessed With a Hundred Sons (1986) (describing the clear cultural preference for sons).

  • 45

    Susan Seymour, Family Structure, Marriage, Caste and Class, and Women's Education: Exploring the Linkages in an Indian Town, 2 Indian J. Gender Stud. 67 (1995).

  • 46

    Id.

  • 47

    See Elisabeth J. Croll, Fertility Decline, Family Size and Female Discrimination: A Study of Reproductive Management in East and South Asia, 17 Asia-Pacific Population J. 11, 21 (June 2002), at http://www.unescap.org/esid/psis/population/journal/articles/2002/v17n2a2.pdf (“blessings, status and good fortune are defined not in terms of daughters or children but of sons”); Vibhuti Patel, A Cultural Deficit, India Together, Aug. 2003, at http://www.indiatogether.org/2003/aug/wom-sexratio.htm (“The birth of a son is perceived as an opportunity for upward mobility while the birth of a daughter is believed to result in downward economic mobility.”)

  • 48

    Croll, supra note 47, at 22–26.

  • 49

    See Patel, supra note 47 (explaining the impact of the dowry system).

  • 50

    Banister, supra note 43

  • 51

    See, e.g., GenSelect.Com., Family Balancing, http://www.genselect.com/goodnews/FamilyBalancing (“The concept of family balancing is a measured approach to the use of preconception gender selection. Family balancing provides married couples having at least one child the opportunity to use various methods to increase the chance of having another child of the less represented sex in the family.”)

  • 52

    See American Society for Reproductive Medicine, Guidelines, Statements and Opinions of the ASRM Practice Committee, at http://www.asrm.org/Media/Practice/practice.html; Darnovsky, Revisiting Sex Selection: The Growing Popularity of New Sex Selection Methods Revives an Old Debate, supra note 10. ASRM concluded in a 2001 Report that if sex-selection methods are proven safe and effective, doctors should be free to offer them to couples who want “gender variety” if they are informed about the possibility of failure and agree to accept children of the wrong sex. Id.

  • 53

    Obasogie, supra note 9 (“at least 15 countries—including England, Australia, Canada, Germany, and France—proscribe sex selection”); Pacific News Service, Indian Couples Seek out U.S. Sex Selection Clinics, India West, June 30, 2006 at http://news.pacificnews.org/news/view_article.html?article_id=54a58cce914f335cb8fb6e722aa1028d. (“The United States is one of the few industrialized nations that does not regulate the procedure, giving a few of the country's clinics a monopoly in this emerging market.”)

  • 54

    See Obasogie, supra note 9 (asserting that “there is a dubious relationship between embryonic sex identification and sex selection that leads one step closer to a new eugenics”)

  • 55

    Sen, supra note 29

  • 56

    Id.

  • 57

    Kim, supra note 43

  • 58

    Id.

  • 59

    Id.

  • 60

    Id.

  • 61

    Kalpana Sharma, No Girls, Please, We’re Indian, The Hindu, August 29, 2004, at http://www.hindu.com/mag/2004/08/29/stories/2004082900130100.htm. See generally Alison Wood Manhoff, Banned and Enforced: The Immediate Answer to a Problem Without an Immediate Solution-How India Can Prevent Another Generation of “Missing Girls,” 38 Vand. J. Transnat’l L. 889, 892–99 (2005) (recounting the history of sex selection in India).

  • 62

    Sudha S. Rajan, Sex Selective Abortions and Female Infanticide, 30 Development and Change 585, 619­–21 (2003).

  • 63

    Id.

  • 64

    See Sharma, supra note 61.

  • 65

    Iqbal Latif, Selective Elimination of Female Fetuses in India, Global Politician, Sep. 2, 2007, at http://www.globalpolitician.com/articledes.asp?ID=3374&cid=6&sid=20.

  • 66

    See Therese Hesketh & Zhu Wei Xing, The Effect of China's One-Child Family Policy after 25 Years, 353 New Eng. J. Med. 1171 (Sep. 15, 2005), at http://content.nejm.org/cgi/content/full/353/11/1171 (noting that the Chinese government “saw strict population containment as essential to economic reform and to an improvement in living standards”).

  • 67

    Maureen J. Graham et al., Son Preference in Anhui Province, China, 24 International Family Planning Perspectives 77 (June 1998), at http://www.guttmacher.org/pubs/journals/2407298.html.

  • 68

    Judith Banister, Shortage of Girls in China Today, Journal of Population Research (May 2004), at http://findarticles.com/p/articles/mi_m0PCG/is_1_21/ai_n6155263. See also Arthur E. Dewey, One-Child Policy in China, Testimony before the House International Relations Committee, Dec. 14, 2004, at http://www.state.gov/g/prm/rls/39823.htm (“the large fees and penalties for out-of-plan births assessed in implementing China's regulations are tantamount to coercion that leads to abortion”).

  • 69

    Graham et al., supra note 67. The sex ratio for a stationary population (as determined by Western model life tables) is between 97.9 and 100.3 males per 100 females. Ansley Coale, Excess Female Mortality and the Balance of the Sexes in the Population: An Estimate of the Number of “Missing Females,” 17 Population and Development Review 518 (Sep. 1991).

  • 70

    Valerie M. Hudson & Andrea M. Den Boer, A Surplus of Men, A Deficit of Peace: Security and Sex Ratios in Asia's Largest States, 26 International Security 5, 11 (2002), at http://mitpress.mit.edu/journals/pdf/isec_26_04_5_0.pdf.

  • 71

    See GeoHive, Total Population by Gender and Gender Ratio, by Country, at http://www.xist.org/earth/pop_gender.aspx.

  • 72

    Nicholas Eberestadt, The Global War Against Baby Girls, American Enterprise Institute for Public Policy Research, http://www.aei.org/publications/filter.all,pubID.25399/pub_detail.asp (Jan. 5, 2007). Although beyond the scope of this Note, “the global war against baby girls” is also an apt characterization for the still widespread practice of female genital mutilation. The World Health Organization (WHO) has estimated that approximately three million girls are maimed by this surgery each year. The practice is prevalent in many countries in Africa, Asia, and the Middle East. The WHO has estimated that the total number of females mutilated by this practice ranges between 100 and 140 million. See Female Genital Mutilation: A Cut Less Cruel, The Economist, Sep. 15, 2007, at 100.

  • 73

    Eberstadt, supra note 72.

  • 74

    Id.

  • 75

    Theresa Smyth, Canadian Sex-Selection Abortions Exposed, The Interim, July 2006, at http://www.theinterim.com/2006/july/03canadian.html.

  • 76

    Andrea Mrozek, Canada's Lost Daughters, Western Standard, June 5, 2006, at 34, available at http://www.ncln.ca/content/pdf/CanadaLostDaughters.pdf.

  • 77

    Id.

  • 78

    Ketaki Gokhale, Indian Couples Seek Out U.S. Sex Selection Clinics, India West, June 30, 2006, at http://news.ncmonline.com/news/view_article.html?article_id=54a58cce914f335cb8fb6e722aa1028d.

  • 79

    Id.; see also Maxwell Pereira, Sex Selection in India Dodges Existing Laws, Indo-Asian News Service, Sep. 3, 2006, at http://news.newamericamedia.org/news/view_article.html?article_id=74832773372eba82348c055505376c87 (referring to the “increasing practice among Indian parents of accessing through the Internet facilities available in the US guaranteeing a male issue even at the pre-conception stage.”)

  • 80

    Gokhale, supra. note 78; see also Mandy Oaklander, No Girls Please, We’re Indian: Sex Selection Ads Land Ethnic Media in Hot Water, New American Media, Sep. 10, 2007, at http://news.newamericamedia.org/news/view_article.html?article_id=3c7ed640212a030bc2f3163dfdcc8bcb

  • 81

    Oaklander, supra note 80.

  • 82

    Id.; Gokhale, supra note 78. The Fertility Institutes also caters to reproductive tourism from China. Its Web site features an image of the Chinese flag, and Dr. Steinberg reported that the site receives 140,000 hits a month from China. See The Fertility Institutes, supra note 19; Wealthy Go to US to Choose Baby's Sex, China Daily, June 15, 2006, at http://chinadaily.com.cn/china/2006-06/15/content_617607.htm (describing global reproductive tourism).

  • 83

    See Valerie M. Hudson & Andrea M. Den Boer, “Bare Branches” and Danger in Asia, Wash. Post., July 4, 2004, at http://www.washingtonpost.com/wp-dyn/articles/A24761-2004Jul2.html; Janice Shaw Crouse, The United Nations Abortion Dilemma, Townhall.com, Mar. 2, 2007, at http://www.townhall.com/columnists/JaniceShawCrouse/2007/03/02/the_united_nations_abortion_dilemma; Andrea Mrozek, When There Are Too Many Men, Western Standard, June 5, 2006, at 36, available at http://www.ncln.ca/content/pdf/CanadaLostDaughters.pdf.

  • 84

    Crouse, supra note 39.

  • 85

    Louise Lim, China Fears Bachelor Future, BBC.com, Apr. 5, 2004, at http://news.bbc.co.uk/1/hi/world/asia-pacific/3601281.stm. Anecdotal accounts of the murder of daughters, placing a human face on demographic data, are quite common. See, e.g., Mary Carmichael, No Girls, Please: In Parts of Asia, Sexism is Ingrained and Gender Selection Often Means Murder, Newsweek, Jan. 26, 2007, at http://www.msnbc.msn.com/id/3990133/site/newsweek/ (reporting the story of an Indian midwife who, for a small fee, “will take a newborn girl, hold her upside down by the waist and “give a sharp jerk,” snapping the spinal cord. She will then declare the infant stillborn.”); Jones, supra note 30 (detailing the murder of an infant daughter by her mother, who refused to nurse the baby and then, to “silence the infant's famished cries,” poisoned her).

  • 86

    Hudson & Den Boer, supra note 83. (“In societies where the status of women is so low that they are routinely culled from the population, even before birth, the prospects for peace and democracy are seriously diminished.”)

  • 87

    See Sherry Karabin, Infanticide, Abortion Responsible for 60 Million Girls Missing in Asia, Population Research Institute, June 13, 2007, at http://www.pop.org/main.cfm?id=310&r1=15.00&r2=2.00&r3=0.50&r4=0.00&level=3&eid=1096.

  • 88

    Hudson & Den Boer, supra note 83

  • 89

    Id.

  • 90

    Id.

  • 91

    Manreet Sodhi Someshwar, India's Women Battle the “Bad Luck” Label, International Herald Tribune, Mar. 30, 2006, at http://www.iht.com/articles/2006/03/29/opinion/edmanreet.php; see also Pereira, supra note 79, (warning that the new sex selection technologies will lead to “further exploitation and abuse of women, violence against them, increased trafficking and sex trade, and re-emergence of practices like polyandry.”); Draupadi's Husbands: A Brief Study of Polyandry in Contemporary Himalayan Cultures, at http://www.focusanthro.org/archive/2004-2005/polyandry9.pdf. (describing the practice of polyandry).

  • 92

    See Javier Delgado Rivera, India: Child Brides to Child Mothers, CafeBabel.com, Dec. 11, 2006, at http://www.cafebabel.com/en/article.asp?T=T&Id=8963; Nita Bhalla, India's Underage Brides Wedded to Tradition, Reuters, May 16, 2007, at http://www.alertnet.org/thenews/newsdesk/DEL11895.htm. Early marriages “contribute to high rates of maternal mortality—one woman dies every seven minutes from a pregnancy-related cause in India—with young bodies not mature enough for sex or pregnancy.” Bhalla, supra note 92 ; see also id. (According to a recent report by the United Nations Children's Fund, girls under 15 are five times more likely to die during pregnancy and child birth than those in their twenties.)

  • 93

    Bhalla, supra note 92 . Conservative estimates of the number of young adult “bare branches” to be found by 2020 are approximately 30 million in China, and 28 million in India. Id.

  • 94

    Id.

  • 95

    Id. More violent crime is committed worldwide by unmarried young adult men than by married young adult men. Id. See also Pereira, supra note 79 (“The increasing deficit of girls is also creating a social imbalance within society, with pockets in India where very few girls are born. Resulting in no brides for the burgeoning son population, with the prospect of having to import girls from other regions. Resulting in social problems of purchasing young girls from poor regions, women treated as commodities, contributing to further fall in their status in society. This can only lead to further exploitation and abuse of women, violence against them, increased trafficking and sex trade, and re-emergence of practices like polyandry. Letting the cycle of discrimination and gender inequities to continue, fuelled now by newer and more accurate technologies for sex selection.”)

  • 96

    Hudson and Den Boer, “Bare Branches” and Danger in Asia, supra note 83.

  • 97

    See Woodrow Wilson International Center for Scholars, Environmental Change and Security Program, Is Our Security Threatened by Too Many Men, July 19, 2004 (quoting Valerie Harper), at http://www.wilsoncenter.org/index.cfm?fuseaction=topics.event_summary&topic_id=1413&event_id=86385.

  • 98

    Id. Moreover, the practice of dowry is now appearing even in Indian states which traditionally did not adhere to it. Id.

  • 99

    Id.

  • 100

    Eberestadt, The Global War Against Baby Girls, supra note 72

  • 101

    See, e.g., UNICEF, Child Protection From Violence, Exploitation and Abuse: Female Genital Mutilation/Cutting, at http://www.unicef.org/protection/index_genitalmutilation.html.

  • 102

    Canadian Children's Rights Council, Circumcision / Genital Mutilation, at http://www.canadiancrc.com/circumcision/circumcision.htm. In the United States, the federal government and 15 states have adopted legal measures targeting the practice of FGM. See Center for Reproductive Rights, Legislation on Female Genital Mutilation in the United States (2004), at http://www.reproductiverights.org/pdf/pub_bp_fgmlawsusa.pdf. The U.N. General Assembly adopted a resolution in 2002 on traditional or customary practices affecting the health of women and girls, which characterized female genital cutting “as a serious threat.” Nirit Ben-Ari, International Action Against FGM, 17 Africa Recovery 4 (May 2003), at http://www.un.org/ecosocdev/geninfo/afrec/vol17no1/171wm1.htm. Various United Nations agencies have advocated for global awareness and reform by highlighting the serious health consequences associated with FGM. See UN Office for the Coordination of Humanitarian Affairs, Razor's Edg—The Controversy of Female Genital Mutilation, Oct. 3, 2007, at http://www.irinnews.org/IndepthMain.aspx?IndepthId=15&ReportId=62462; UNICEF, Child Protection From Violence, Exploitation and Abuse: Female Genital Mutilation/Cutting, supra note; UNFPA (United Nations Population Fund), Ending Female Genital Mutilation/Cutting, at http://www.unfpa.org/gender/practices1.htm.

  • 103

    Samantha Singson, China, India and Canada Kill UN Resolution Against Sex Selected Abortions, LifeSite, Mar. 8, 2007, at http://www.lifesite.net/ldn/2007/mar/07030811.html; UN Shelves Bid to Condemn Sex-Selection Abortion, Mar. 9, 2007, at http://www.cwnews.com/news/viewstory.cfm?recnum=49762.

  • 104

    Singson, supra note 103; Catholic World News, UN Shelves Bid to Condemn Sex-Selection Abortion, supra note 103.

  • 105

    See Singson, supra note 103 (“It is likely that India and China objected because, even though the resolution focused on the global nature of the problem, they believed it would draw attention to the fact that theirs are the worst cases of female infanticide and sex selected abortion.”); Crouse, United States Resolution Shanghaied by China and India, supra note 39, (reporting that “two nations that are negatively affected by the practice (China and India) were leaders in pressuring the U.S. to withdraw its resolution.”)

  • 106

    See, e.g., Delaney, supra note 39 (reporting on the argument that support for abortion rights runs counter to support for ending gendercide).

  • 107

    Id.

  • 108

    Report of the Secretary General, The Elimination of All Forms of Discrimination and Violence Against the Girl Child, “Elimination of Harmful Practices of Prenatal Sex Selection and Female Infanticide” (E/CN.6/2007/L.5), in United Nations Economic And Social Council, Commission On The Status Of Women, Fifty-First Session, Feb. 26Mar. 9, 2007, at http://www.un.org/womenwatch/daw/csw/csw51/OfficialDocuments.html.

  • 109

    One extremely difficult issue is whether legislation barring sex selection will set an autonomy-limiting precedent in other areas of reproductive freedom. See Rachel Remaley, “The Original Sexist Sin”: Regulating Preconception Sex Selection Technology, 10 Health Matrix 249, 254 (2000).

  • 110

    Cf. “Statement” submitted to the CSW by several international women's and other groups calling for “law enforcement” to have “adequate resources and training to respond to violence against the girl child,” and for “legislation making religious and traditional practices which harm girls illegal, including female genital mutilation, underage marriages and forced abortion.”Statement Submitted by Centre for Women, et al., in United Nations Economic and Social Council, Commission on the Status of Women, Fifty-First Session, Feb. 26–Mar. 9, 2007, E/CN.6/2007/NGO/5, at http://www.un.org/womenwatch/daw/csw/csw51/OfficialDocuments.html.

  • 111

    Well-Being of Girls Should Be Underpinned by Robust Set of Laws, Commission on Status of Women Told, United Nations Economic and Social Council, Commission on the Status of Women, Fifty-First Session, Feb. 26–Mar. 9, 2007, at http://www.un.org/News/Press/docs/2007/wom1612.doc.htm.

  • 112

    See Jacqueline Stenson, The Future of Babymaking: Scientists Explore New Techniques for Tackling Infertility Problems, MSNBC.com, July 22, 2003, at http://www.msnbc.msn.com/id/3076784/ (describing breakthroughs and prospects in transplanted or artificial wombs and cloning.); Rob Stein, First U.S. Uterus Transplant Planned: Some Experts Say Risk Isn't Justified, Wash. Post, Jan. 15, 2007, at http://www.washingtonpost.com/wp-dyn/content/article/2007/01/14/AR2007011401091.html (noting that the operation “marks a confluence of two medical specialties—transplant surgery and reproductive medicine—that frequently spark controversy”).

  • 113

    See, e.g., Hesketh and Xing, supra note 66 (discussing the ill effects of the legal regime regulating population in China); No Girls, Please, We’re Indian, supra note 61 (describing government regulation in India as “inadequate and poorly implemented.”).

  • 114

    Well-Being of Girls Should Be Underpinned by Robust Set of Laws, Commission on Status of Women Told, supra note 111, (quoting Manjula Krishnan, Indian Economic Adviser).

  • 115

    Id.

  • 116

    The Pre-Natal Diagnostic Techniques (Regulation And Prevention Of Misuse) Act, 1994, at http://www.medindia.net/Indian_Health_Act/PNDT/PNDT94_chap1.asp.

  • 117
  • 118

    Id., Sec. 4.

  • 119

    The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Rules, 2003, at http://www.medindia.net/Indian_Health_Act/PNDT/PNDT2003.asp

  • 120

    Id., No. 5 (setting forth new rule 3A, “Sale of ultrasound machines/imaging machines”).

  • 121

    Well-Being of Girls Should Be Underpinned by Robust Set of Laws, Commission on Status of Women Told, supra note 111; see also Patel, A Cultural Deficit, supra note 47 (describing other legal measure implemented in India to counter sex selection).

  • 122

    Sharma, supra note 61.

  • 123

    Bumgarner, supra note 32, at 1303.

  • 124

    Ctr. for Enquiry into Health & Allied Themes v. Union of India, 4 I.L.R. 107 (S.C. 2003).

  • 125

    Gao Yan, Sex-Selection Abortions Banned to End Population Imbalance: Mainland Doctors Performing Ultrasound Scans Will Not Be Able to Tell Parents the Gender of Their Babies Under a New Law, South China Morning Post, Mar. 25, 2002, at http://www.laogai.org/news/newsdetail.php?id=1996. Under the law, ultrasound scans, abortions, and the issuance of morning after pills may legally only be done at government-approved centers, and three doctors must agree that a sex-identification test is medically indicated. Id.

  • 126

    Lawmakers Call on [sic] Ban of Fetus Sex Selection, China Daily, Feb. 27, 2005, http://www.chinadaily.com.cn/english/doc/2005-02/27/content_419843.htm; Liu Chang, Jail for Those who Help Sex Selection, China Daily, Dec. 26, 2005, at http://www.chinadaily.com.cn/english/doc/2005-12/26/content_506443.htm.

  • 127

    Chang, supra note 126.

  • 128

    Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, Oviedo, 4.IV.1997, Art. 14, at http://conventions.coe.int/treaty/en/treaties/html/164.htm.

  • 129

    Human Fertilisation and Embryology Authority (HFEA), at http://www.hfea.gov.uk; see BBC Health News, Baby Gender Selection Ruled Out, BBC News, Nov. 12, 2003, http://news.bbc.co.uk/1/hi/health/3257893.stm.

  • 130

    Rajani Bhatia et al., Sex Selection: New Technologies, New Forms of Gender Discrimination, CTR. GENETICS & SOC’Y (Oct. 2003), at http://genetics-and-society.org/resources/background/factsheet.html.

  • 131

    Fertility Clinic Success Rate and Certification Act of 1992, 42 U.S.C. 263a-1 et seq.

  • 132

    . 64 Federal Register 39374 (July 21, 1999), at http://wwwn.cdc.gov/dls/pdf/art/fcsrca.pdf.

  • 133

    Id.

  • 134

    Assisted Reproductive Technology: A Systemwide Task Force Report and Recommendations to Strengthen Oversight and Improve Quality of Care, University Of California, Office of the President (Mar. 1996), App. C, at http://www.ucop.edu/healthaffairs/reports/art/.

  • 135

    Id. (describing state regulatory efforts.)

  • 136

    For example, India's religious leaders have condemned sex selective abortion as “shameful and inhuman,” and have pledged to help their followers shun the practice. Sudha Ramachandran, New Technologies, Old Prejudices Blamed For India's Vanishing Girls, Panos Features, Sep. 15, 2001, at http://www.panos.org.uk/newsfeatures/featureprintable.asp?id=1036. Matching legal edicts have been forthcoming. In rejecting a claim by a couple that the ban on pre-conception gender selection violates the couple's liberty rights, the Mumbai High Court reasoned as follows: Sex selection is not only against the spirit of the Indian Constitution, it also insults and humiliates womanhood. It violates a woman's right to life. This is perhaps the greatest argument in favour of the ban on pre-natal sex-determination tests in India. Gender Selection Akin to Murder, Says Mumbai Court Upholding Ban, InfoChangeIndia.org, Sep. 7, 2007, at http://www.infochangeindia.org/ChildrenItop.jsp?section_idv=4. See also Manhoff, supra note 61 (arguing that India should both vigorously enforce its proscription of sex selection and take measures to increase the value of women in society); Patel, supra note 47 (arguing that the shortage of girls in India is not merely a sociological phenomenon, but rather demands changing the mindset of doctors and patients to create a socio-cultural milieu conducive to the survival of Indian girls).

  • 137

    Suzanne Leigh, Reproductive Tourism, Health and Behavior USA TODAY May 2, 2005, http://www.usatoday.com/news/health/2005-05-02-reproductive-tourism_x.htm (quoting bioethicist Arthur Caplan).

  • 138

    See, e.g., Shopping For The “Right” Gender: Wealthy Foreign Couples Are Traveling To The U.S. To Choose Their Child's Sex, CBSNews.com, June 14, 2006, at http://www.cbsnews.com/stories/2006/06/14/health/main1711564.shtml (“Well-off foreign couples are getting around laws banning sex selection in their home countries by coming to American soil, where it's legal, for medical procedures that can give them the boy, or girl, they want.”); Peta Hellard, $40,000 for their Designer Daughter, Herald Sun (Australia) (Feb. 14, 2007) at http://biopoliticaltimes.org/article.php?id=3390 (reporting on an Australian couple who traveled to Los Angeles to have the sex selection process performed, a process illegal in Australia).

  • 139

    Human Fertilisation and Embryology Authority (HFEA), supra note 129. HFEA is a statutory body created in 1991 under the Human Fertilisation and Embryology Act (1990). Id.

  • 140
  • 141

    The Fertility Clinic Success Rate and Certification Act requires all clinics performing ART in the United States to annually report their success rate data to CDCP, which publishes an annual report detailing the ART success rates for each of these clinics. This suggests a measure of agency expertise and prior Congressional confidence in the CDCP. See Fertility Clinic Success Rate and Certification Act of 1992 [FCSRCA], Section 2 [a] of P.L.102-493 [42 U.S.C. 263 (a) -1]); ART Report, supra note 5, at http://www.cdc.gov/ART/ART2004/faq.htm#3.

  • 142

    The President's Council On Bioethics, U.S. Public Policy and the Biotechnologies That Touch the Beginnings of Human Life: Draft Recommendations, Sep. 2003, at http://www.bioethics.gov/background/bpprecommend.html.

  • 143

    Id.

  • 144

    Id.

  • 145

    Id.

  • 146

    Pre-Natal Diagnostic Techniques Act, supra note 116, at http://www.medindia.net/Indian_Health_Act/PNDT/PNDT94_chap3.asp.

  • 147

    Id.

  • 148

    Id.

  • 149

    Convention on Human Rights and Biomedicine, supra note 128, Art. 14.

  • 150

    It is at least arguable that supporters of broad abortion rights will concede the inappropriateness of gender-linked abortion, and that opponents of abortion will concede the partial success of their efforts implicit in the same measure.

  • 151

    Manhoff, supra note 61, at 905.