A key theme in public debate over abortion in many countries over the last few years has been the morality and legality of sex-selective terminations. Now the use of an early prenatal testing technique in the UK has led to further concerns.
The Non-Invasive Prenatal Test (NIPT) is being fully introduced on the NHS this year, as a safe method of detecting Down’s Syndrome and other genetic conditions. But it has been internationally available from private providers for a number of years, and, as a 2017 report noted, is often offered as a sex-determination test. This has raised concerns that the test may be used to facilitate sex-selective abortion – particularly within communities where women can be subject to strong cultural and familial pressure not to have girls. The current legal status of this practice in the UK is a matter of some controversy.
The BBC’s Victoria Derbyshire recently reported online discussion among British women about using NIPT to abort female foetuses. In response, the Labour Party announced a policy of banning the use of NIPT for sex determination. Labour’s equality and women’s spokesperson, Naz Shah, described sex-selective abortion as “incredibly unethical”.
Shah’s view – that sex-selective abortion is morally wrong, and that the law ought therefore to prevent it – is widely shared, including among those who otherwise identify as pro-choice. Similar sentiments were expressed by politicians in 2012, when an undercover investigation by the Telegraph found a number of doctors that appeared willing to perform sex-selective terminations.
But if you propose to deprive women of facts about their pregnancies, or interfere with choices they might make about their own bodies and futures, you must do more than allege wrongdoing. Articulation of a clear and compelling moral objection is required.
So: what kind of objections can be made in this case?
Sex-selective abortion is often dismissed as an abortion chosen due to a trivial preference, like a preference for one consumer product over another. And it would be natural to infer that it is therefore a classic case of unjust discrimination. What could be more obvious than that it is wrong to treat someone – in this case a foetus - less favourably simply on the arbitrary grounds of sex?
This characterisation of the practice is, however, dubious. Take first the thought that sex-selective abortion cannot be motivated by serious reasons. In fact, women who seek such abortions can have purposes that are just as weighty as those of women seeking non-selective terminations. They may be justifiably afraid, in particular, that the gender of their child may lead to the failure of their marriage, or their being left destitute. Cases described by the organisation Jeena International, for instance, show that it would be a mistake to assume that women in countries like the UK are necessarily immune to these risks. Yet, while Jeena International advocates the prohibition of sex selection, it is precisely when women face precarious circumstances like these that the option of abortion seems most crucial.
Consider next the suggestion that sex-selective abortion constitutes unjust discrimination against the foetus. This casts the foetus as having a right to be treated as our equal. But that idea undermines the case for abortion rights in general, not just sex-selective abortion.
In order to avoid providing tacit support for a pro-life position, ethical critics of sex selection often argue that the practice’s victims are not foetuses, but existing persons in society. There are number of versions of this position, pointing to a variety of anticipated bad social consequences. The question is whether any are strong enough to justify abridging choice in an area of such deep personal importance as procreation.
One immediate fear is that, if sex-selective abortion is available, it could lead to harmful unbalancing of the sex ratio. This seems a fairly remote possibility in a country like the UK, at least, where strong son-preference is not widespread.
But another common rationale for prohibiting sex-selective abortion may be more applicable. It appears, for instance, to have been part of the motivation behind an (unsuccessful) attempt to change the law on sex selection by Fiona Bruce MP in 2015. On this view, a ban is needed to protect women from being coerced by their families or spouses into having the procedure.
Domestic coercion is undoubtedly a matter of grave concern. But it is unclear that prohibiting sex-selective abortion is the right remedy. This is because vulnerable women are at risk of being coerced into unwanted abortions generally. In all such cases, the appropriate policy is arguably instead to tackle domestic oppression directly, giving women meaningful exit options, while leaving abortion open to those who need it.
Yet another argument focuses on the message that allowing sex-selective abortion allegedly transmits. As one columnist evocatively puts the point: “I don’t want my daughter to learn that a girl’s life is worthless.” The suggestion here is that the existence of the practice vividly expresses the inferior status of women, making the struggle for gender equality still more difficult. But this case for prohibition can also be questioned on an ethical level.
One reason is that it is analogous to an argument that some disability rights advocates have made, to the effect that prenatal testing likewise broadcasts a hurtful, disrespectful message about the value of disabled lives. If someone were to argue, on these grounds, that selective abortion for disability is not only ethically problematic but ought to be banned, pro-choice people would no doubt reply (a) that there is no intention to express any such message, and (b) that in any case preventing women from obtaining needed abortions is not an equitable way of pursuing justice and equality for the disabled. These replies seem applicable in the case of sex selection too.
All this indicates that the ethical case for prohibition is less straightforward than one might expect. We can agree, of course, that much more progress needs to be made towards a world without the pervasive sex inequalities that lead some women to choose sex-selective abortion in the first place. But our problem is what to do here and now, while those inequalities persist. The dilemma is that, while such abortion can plausibly be seen as reinforcing relevant inequalities, prohibiting it arguably involves a perverse shift of the burdens of achieving gender justice onto vulnerable women themselves.