"We are facing an immense threat to life: not only to the life of individuals but also to that of civilization itself." (1) ~Pope John Paul II
Sex selection is a devastating practice with devastating consequences. Sex selection perpetuates gender discrimination. Sex selective abortion laws are an international law issue, affecting the United Nations global population efforts. (2) India and China have ever-widening gender gaps because male children are preferred for socioeconomic reasons. (3) According to the World Health Organization's Genomic Research Centre, sex selective abortion has existed since the 1970s. (4) Western countries are beginning to see widening ratio differences as more female fetuses are being aborted in Western Asian communities. (5)
In the United States, some Americans have begun to take notice of this practice, as indicated by recent efforts in the House of Representatives. (6) Currently, a discrepancy exists in United States law between the regulation of pre-transfer and post-implantation sex selective destruction. In pre-transfer embryo destruction, an embryo created via artificial reproductive technology (ART) is destroyed before it is implanted into a womb. (7) Abortion occurs after the implantation in the uterine lining occurs, thus ending the pregnancy.
Sex selection is creating a global demographic crisis. The average worldwide sex ratio at birth is 105 boys per 100 girls born. (8) Abnormal sex ratios have been noted in many Asian countries. (9) In some locations in northwest India, sex ratios have reached upwards of 114 to 120. (10) The fertility rate of Indian women has declined; parental and medical intervention can "increase the chance of having a son in smaller families." (11) In some provinces in China, where male children are preferred, the sex ratio has risen to 115. (12) In Lianyungang, government statisticians found a gender ratio of 163 boys for every 100 girls under the age of five. (13) In Tianmen, Hubei, that number is 176 to 100. (14) In China, one-sixth of female children are aborted or become victims of infanticide. (15) One-sixth of Chinese boys will not be able to find a wife. (16) Additionally, sixty percent of the world's sex trafficking occurs in China. (17)
Imbalanced sex ratios and sex selection should also concern Western nations. Firstly, population control efforts have introduced male-dominant developing nations to reproductive technology and abortion. Secondly, evidence of sex selection among Asian populations living in Western nations suggests that sex selection is not an isolated issue.
There is undoubtedly a need to evaluate the moral equivalency of sex selective embryo destruction outside of the womb and sex selective abortion. Although the two are morally equivalent, this note argues that this discrepancy reflects the confusion and lack of guidance concerning reproductive technology, as well as the confusion in the Supreme Court abortion framework. There is a need to analyze different aspects of the legal and moral bases for restrictions on sex-selective abortion as well as embryo destruction. (18) Sex selection occurs across all social classes and religions. (19) In fact, the highest, wealthiest social classes in India and China have the highest skewed sex ratio. (20)
This Note will explore the background and issues surrounding sex selective abortion and sex selective embryo destruction. Part I will investigate how sex selective practices are defined, as well as equating sex selective abortion with sex selective embryo destruction. Part I will further identify the underlying causes of sex selection. The current law, or lack thereof, perpetuates gender discrimination. Part II will observe the current regulations concerning sex selective practices. Although international efforts have been made to curtail the practice, the United States has avoided regulations in the area of assisted reproductive technology. Part II will also note discrepancy between the laws regarding pre-implantation, or embryo destruction, and post-implantation abortion. Finally, in Part III, this Note will ask whether or not the United States can regulate sex selection under a constitutional and judicial framework, and why sex selective embryo destruction laws are more likely to be upheld.
A Brief Background of Sex Selection: Sex Selective Procedures Defined
Sex Selective Abortion
Sex selective abortion has been described as "the systematic abortion of girls because of their burden on the family and low social worth in certain cultures." (21) In other words, women seek abortions because of the gender of the fetus. According to the World Bank's World Development Report, there are four million women missing due to sex-selective abortion and high female mortality rates. (22) An interagency statement published by the World Health Organization, Preventing Gender-Biased Sex Selection, revealed that the United Nations recognized a population imbalance that occurred due to sex selection. (23) Other nations have recognized a growing need to address the issue of growing gender ratio gaps and cultural practices that disfavor women and the birth of infant females. (24)
Sex Selective Embryo Destruction
In pre-transfer embryo destruction, an embryo created via ART is destroyed before it is placed into a female's uterus. (25) Why does this occur? Generally, "sex determination is the only current method of identifying embryos or fetuses potentially affected with sex-linked disorders." (26) Sex selective screening takes place post-fertilization and pre-implantation, and involves the destruction and discarding of embryos. (27)
There are many steps to the artificial creation of embryos; for instance, sperm can be screened to favor the gametes that are most likely to produce a male child. (28) Screening for sex can occur after fertilization, or after the embryo is old enough to determine its sex. (29) Artificially created embryos through in vitro fertilization (IVF) "undergo genetic diagnosis" before transfer so that "only embryos free from defects or having the desired sex or other particular qualities are transferred." (30)
Pre-implantation genetic diagnosis (PGD) identifies genetic defects or particular genetic features, such as sex, in embryos conceived for IVF purposes. (31) Scientific techniques such as PGD and pre-implantation genetic haplotyping are being used to screen for sex selection. (32) Other procedures, such as amniocetesis, chorionic villus sampling, sperm sorting, (33) and simple ultrasounds or urine samples can also identify the sex of the unborn child. (34)
Sex selective practices are morally equivalent in that they discriminate against women. Although an abortion requires implantation to take place, sex selective embryo destruction occurs for the same reasons as sex selective abortion. In both instances, a female embryo is destroyed because of her sex. This is an act of violence towards women with global impact. Currently, "[h]alf of the countries in the world are at or below replacement-level fertility," (35) and fertility will likely continue to decline.
A Global Problem
The Genomic Resource Center of the World Health Organization reports that there are three motivations for sex selection: medical, family balancing, and gender preference. (36) It notes that there are concerns regarding the natural sex ratio and that gender preferences may "reinforce discriminatory and sexist stereotypes towards women by devaluing females." (37)
In many Asian countries, parents prefer male children, and there is a noticeable gap in gender equality. (38) A common example of this inequality is the legal restrictions on female inheritance. (39) In addition to the resulting ratio imbalance, (40) there is evidence of increased violence, human trafficking, and shared brides. (41) Other reports note that an abnormally high percentage of unmarried men leads to increased violence, war, kidnapping, and rape. (42) By the year 2020, young, unmarried men in China and India will constitute twelve to fifteen percent of the world's young adult male population. (43)
The worldwide consequences of sex selection should be alarming. Today, China and India make up forty percent of the world's population. (44) Studies have revealed increasing violent behaviors due to gender imbalance. (45) There is an undeniable global impact of disproportionate sex ratios in several other Asian nations: Afghanistan, Bangladesh, South Korea, Pakistan, Taiwan, and Iran. (46)
In 1989, South Korea had a sharp increase in sex selective abortions; the sex ratio increased with birth order. (47) For first-born children, the sex ratio was 104 boys to 100 girls; for second births, it was 113; for third births, it was 185; and for fourth births, it was 209. (48) Because of South Korea's overwhelming sex selection problem, including its rapidly declining population, its government is now enforcing abortion laws; doctors and judges are also observing the abortion bans. (49)
Other effects of sex selection have been reported, such as sharp declines in fertility. (50) But most importantly, gender discrimination against females is the primary cause of sex selective abortion. Because of gender preference, women also face possible violence, rejection, divorce, and being forced to continuously become pregnant until a male child is produced. (51)
If abortion and prenatal screening becomes more accessible in the Middle East--a region notorious for its male preference, male dominance, and unrest--it is likely to be the next region to develop a sex ratio imbalance. (52) Albania, for instance, despite its highly religious population of Muslims, Roman Catholics, and Christian Orthodox, has an official sex ratio of 115, and some estimate it is even higher. (53) Widespread and cheaper ultrasounds, along with a plummeting fertility rate, seem to be at the root of Albania's imbalanced sex ratio. (54)
In fact, the United...