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Selective Abortion. Sex and Disability

‘Hard Cases’

Some abortions of a very particular nature have presented unique difficulties in abortion ethics and policy. These are so-called ‘selective’ abortions. Selective abortions are characterized by the fact that they are carried out not in order to avoid pregnancy or parenthood per se, but to prevent the birth of child with a particular, unwanted, characteristic. The two characteristics I focus on here are sex and disability. Not only are selective abortions on the basis of sex and disability the most politically relevant kinds (since other characteristics either are not typically tested for or cannot be detected during pregnancy), moral attitudes towards them have also been harnessed in interesting ways in the wider battle over abortion rights. Sex selective abortions (SSA) and what I will call ‘fetal abnormality abortions’ (FAA) are therefore worthy of special attention.

SSA and FAA are alike in that both have been propounded as examples of ‘hard cases’ of abortion by one side of the abortion debate for the other. Fetal abnormality abortion is commonly presented as a hard case for those who oppose abortion rights, since even those who support significant restrictions on abortion may, we think, find it difficult to justify abortion prohibitions in circumstances where fetal abnormality will result in the birth of a seriously disabled child. Conversely, SSA has been characterized as a hard case for those that are generally supportive of abortion rights. Abortions carried out because of the sex of the fetus are widely perceived to be morally repugnant and indefensible even by those who defend the morality of abortion in general. As we will see in more detail, the problematic nature of SSA has much to do with its connection to wider problems of ‘gendercide’ and sex inequality.

On the conventional view, then, FAA is a hard case for opponents of abortion rights, and SSA is a hard case for supporters of them. This conventional view that FAAs are among the most morally defensible kind of abortion and SSA among the least morally defensible is reflected both in regulation and in public abortion debate. The British Abortion Act of 1967 provides for an individual ground of abortion where there is a ‘substantial risk’ that the child born would suffer from a ‘serious handicap’—what is typically known as the ‘disability ground’ for abortion.1

1 Abortion Act 1967, s 1(1)(d).

Arguments about Abortion: Personhood, Morality, and Law. First Edition. Kate Greasley. © K. Greasley 2017. Published 2017 by Oxford University Press.

The disability ground is not time-limited. Aborting defective fetuses is legally permissible all the way up to birth. The ground is therefore grouped with ‘grave risk of permanent physical or mental injury’ and risk to life of the pregnant woman as one of the only permissible grounds for abortions post-twenty-four weeks of pregnancy.

The implication of this is very clear. The statute communicates the common view that fetal abnormality is a special justification for abortions at a stage too late to be ordinarily permitted. This view is shared even by many people that are hostile towards abortion rights across the board. In this respect, popular opinion about FAA bears similarities with opinion about abortions carried out where pregnancy is the result of rape. Calls for reform of Ireland’s restrictive abortion regulation, which currently allows abortion only to prevent risk to the pregnant woman’s life, have centred on fetal abnormality as one of the few conditions under which the law should be liberalized.[1] And Sally Sheldon and Steven Wilkinson have noted that opinion polls in Britain ‘have consistently found that people consider termination more acceptable in the presence of a disability’.[2]

In stark contrast, a British newspaper sting operation which claimed, in 2012, to reveal evidence of abortion clinics’ willingness to carry out SSA was met with widespread consternation and calls for a tightening of the law.[3] [4] In the wake of the alleged scandal, the Health Secretary ordered a mass inspection of abortion clinics to determine the extent to which sex selection was practiced in abortion clinics, and politicians debated introducing amendments into the Abortion Act to explicitly outlaw abortion for reasons of fetal sex.5

SSA and FAA hence sit on completely different ends of the spectrum of conventional abortion morality, despite sharing a striking feature which is not true of abortion generally. This feature is, of course, their selectiveness. In selective abortion, it is a specific fetus that is being terminated because of a characteristic it possesses. But while this discriminating aspect seems to render abortion more reasonable (in the eyes of most) in the case of fetal abnormality, it has the opposite effect when it comes to sex selection. In the latter case, the fact that the pregnancy would be wanted but for a particular characteristic belonging to the fetus seems to make the abortion far more morally problematic than it would be otherwise.

The fact that moderate sensibilities support the view of FAA as paradigmatically ‘good’ abortions and SSA as paradigmatically ‘bad’ ones make both cases useful rallying points in the wider discussion about the morality of abortion. In the academic discourse, supporters and opponents of abortion rights both seek to gain an argumentative advantage by attempting to show that their opponents’ positions cannot consistently be brought into line with moderate sensibilities about either SSA or FAA. Defenders of abortion choice are charged with being unable to explain why we should make an exception of SSA and prohibit it specifically. Conversely, the broad anti-abortion position will seem, to many, to be considerably weakened if it cannot allow for exceptions even in the event of serious fetal abnormality.

The most robust line of defence from either side would be to argue, counterintuitively, that that selective abortion on grounds of sex or disability are not in fact hard cases. Thus, defenders of abortion rights may be moved to argue that sex selection is as permissible as any other kind of abortion and raises no special problems. Equally, opponents of abortion rights might be tempted to argue that fetal abnormality does not render abortion any more morally permissible than it is generally—that it is not a special case.

Because of the resistance these replies are likely to face, the more appealing approach might be for each side to explain why the problem case of selective abortion can be treated as an exception to a general moral or legal position. This will require explaining how the exception can be made consistently, without compromising anything in the wider argument. One question of interest to me here is to what extent this is possible. In other words, can exceptions be made in either case that are not of the sort which undermine the general case for or against abortion rights? Another question I wish to attend to is what the arguments concerning our proper attitudes to the one kind of selective abortion imply about the acceptability of the other kind. If it is permissible to selectively terminate on the grounds of fetal abnormality, why not also on the grounds of fetal sex? Or, if sex selection abortion ought to be banned, why not also abortions that select against disability? In order to better examine these problems, let us look more closely at some specific issues arising out of sex selective and fetal abnormality abortion.

  • [1] See Fiona de Londras, ‘Constitutionalizing Fetal Rights: A Salutary Tale from Ireland’ (2015) 22Michigan Journal of Gender and the Law 243, 248, 280. De Londras chronicles that an Irish Times/Ipsos MORI poll held in October 2014 revealed that 68 per cent of those surveyed were in favour ofholding a referendum on whether to allow abortion in cases of rape and fatal fetal abnormality.
  • [2] Sally Sheldon and Steven Wilkinson, ‘Termination of Pregnancy for reason of foetal disability: Arethere grounds for a special exception in the Law?’ (2001) 9 Medical Law Review 85.
  • [3] Holly Watt, Claire Newell, Zahra Khimji, Available on demand—an abortion if it’s a boy youwanted’, Daily Telegraph, 23 February 2012, 4—5 http://www.telegraph.co.uk/news/health/news/9099925/Abortioninvestigation-Available-ondemand-an-abortion-if-its-a-boy-you-wanted.html (lastaccessed 15 October 2016).
  • [4] See Kate Greasley, ‘Is Sex-Selective Abortion Against the Law?’ (2016) Oxford Journal of LegalStudies (online first, http://ojls.oxfordjournals.org/ content/early/2015/11/26/ojls.gqv031 .abstract).Although the Abortion Act does not provide a specific ground for sex selective termination, there is alegal argument to be made that an abortion carried out upon revelation of the fetus’s sex can nevertheless be lawful if two doctors believe, in good faith, that the sex of the fetus means that the pregnancyplaces the woman’s physical or mental health at risk, pursuant to ground 1(1)(a). Part of the backlashfrom the sting operation included calls to amend the law so as to exclude this interpretation of thestatute. See also Ellie Lee, ‘Recent Myths and Misunderstandings about Abortion Law’, in BritishPregnancy Advisory Service document, ‘Britain’s Abortion Law: What it Says and Why’ (2012), 10—13and Emily Jackson, ‘The Legality of Abortion for Fetal Sex’, in the same volume, 19—21. http://www.reproductivereview.org/images/uploads/Britains_abortion_law.pdf (last accessed 15 October 2016).
 
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