ARTICLES (NOT) REPRODUCING THE CULTURAL, RACIAL AND EMBODIED OTHER: A FEMINIST RESPONSE TO CANADA'S PARTIAL BAN ON SEX SELECTION Maneesha Deckhal I. INTRODUCTION Western feminist attention to reproductive rights and their repercussions for female bodies has primarily concentrated on gender issues shaped by sexism.2 Other equality dimensions of reproductive issues have been less quick to appear within femi- nist discussions and thus within larger debates about the ethics of a particular reproductive practice. When we think of what "re- productive rights" signifies, many of us think of the right to "choose" abortion, which has been a priority for white, middle- class women, rather than forced sterilization or treatment or the right to access to abortion services, which disproportionately af- fect low-income and racialized women as well as women with dis- 1. Assistant Professor, Faculty of Law, University of Victoria. This Article has benefited from its presentation at the Feminist Legal Theory Workshop on Genetic Manipulation and Enhancement Technologies, Emory Law School, January 27-28, 2006, the Feminism & Law, Diversity & Law, and Health Law & Policy Workshop Series, University of Toronto Faculty of Law, February 25, 2005, and the Canadian Journal of Women and the Law Junior Scholars Feminist Workshop, May 3, 2005. I wish to thank the organizers and participants at these workshops for their comments as well as Shannon Elliott and Layli Antinuk for research assistance. 2. An important element of postcolonial analysis is to interrogate liberal legal- ism's adoption of the West/non-West binary and the corresponding assumptions of superiority and inferiority that attach to it. See, e.g., RATNA KAPUR, EROTIC JUS- TICE: LAW AND THE NEW POLICS OF POSTCOLONIALISM 23 (2005). In using the terms "West" and "non-West," "Western" and "non-Western," I do not mean to entrench this dichotomy, but rather to locate sex selection as an issue influenced adversely by this paradigm. UCLA WOMEN'S LAW JOURNAL [Vol. 16:1 abilities.3 Even with respect to analyses of the abortion debate in the West, feminists have focused on ensuring legal access to abor- tion as a fundamental right for women and precondition for their personhood, by highlighting the perils of criminalizing it. They have not, despite the sullied roots of the pro-choice movement in race-based and eugenics campaigns, 4 also included as central a story about racism or classism, for example, in structuring that access.5 Feminists need to provide more responses to reproduc- tive rights and regulation that examine the intersectional aspects of various reproductive issues. This Article attempts to provide such an analysis by applying an intersectional feminist perspec- tive to pre-implantation sex selection. By "intersectional femi- nist perspective," I mean a feminist perspective that does not prioritize gender over other socially constructed differences such as disability, culture, race, age, class, etc., but instead understands all these social constructs as interactively constitutive of women's experiences of autonomy, agency and injustice.6 Pre-implantation sex selection is a category that refers to several procedures. It can refer to various techniques used to manipulate the sex chromosomes to increase the chance that an egg, once fertilized, will be a zygote of a certain sex. It can also refer to selecting embryos created in vitro for implantation into a woman's womb on the basis of the embryo's sex. The issue of pre-implantation sex selection is a current one because of the Ca- 3. See generally Angela Davis, Racism, Birth Control and Reproductive Rights, in FEMINIST POSTCOLONIAL THEORY: A READER 353 (Reina Lewis & Sara Mills eds., 2003); Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 HARV. L. REV. 1419 (1991); Sunera Thobani, From Reproduction to Mal(e) Production: Women and Sex Selection Tech- nology, in MISCONCEPTIONS: THE SOCIAL CONSTRUCTION OF CHOICE AND THE NEW REPRODUCTIVE AND GENETIC TECHNOLOGY 138, 149 (Gwynne Basen, Margrit Eichler & Abby Lippman eds., 1994) (analyzing the colonial assumptions about cul- tural differences that informed gendered debates about reproductive technologies in Canada). 4. Margaret Sanger, widely viewed as the founder of the pro-choice movement in the United States, distanced herself from her Marxist roots and adopted race- based arguments supporting the role of abortion in quelling non-white reproduction and maintaining white superiority. See, e.g., Davis, supra note 3, at 358-61. 5. For an influential example of feminist analysis that does attend to race and class, see DOROTHY ROBERTS, KILLING THE BLACK BODY: RACE, REPRODUCTION, AND THE MEANING OF LIBERTY (1997). 6. See generally Kimberl6 Crenshaw, Demarginalizingthe Intersection of Race and Sex: A Black Feminist Critique of AntidiscriminationDoctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139; see Kimberl6 Crenshaw, Map- ping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1244 (1991). 20071 SEX SELECTION nadian federal government's recent initiative on this bioethical issue. In March 2004, Canada finally legislated in the realm of assisted reproduction after a decade or more of public inquiries, consultations, and attempted legislation, enacting the Assisted Human Reproduction Act ("the Act"). 7 Section 5 of the Act pro- hibits reproductive-related technologies, including pre-implanta- tion sex diagnosis for sex selection and pre-conception sex selective techniques. In this Article, I undertake a feminist critique of this provi- sion from an intersectional point of departure. While I do not endorse sex selection, I argue that the current partial prohibition is problematic from an intersectional feminist perspective and that feminist support for the provision must therefore be tenta- tive at best. In Part II of this Article, I explain the scope of the Act's prohibition and the types of procedures it targets. In Part III, I map the intersectional dimensions of pre-implantation sex selection. Building from this discussion, Part IV then provides a critique of the provision as a compromised route to a feminist vision of women's equality. The aim of this section is to caution against an embrace of this provision as a "victory for women" for feminists who are against sex selection. Lastly, Part V offers a brief comparison of the Canadian provision with the current reg- ulatory scheme (or absence thereof) in the United States. The paper does not engage the debate of whether a total ban on sex selection would be ethically problematic from a feminist or gen- der equality perspective and, if so, whether the general right to reproductive freedom should be curtailed on this one dimension. 8 7. Assisted Human Reproduction Act, R.S.C., ch. 2 (2004) (Can.). 8. Some argue that it is impossible for feminists to be both pro-choice and anti- sex-selective abortion. One could argue that the same feminist principles could un- derlie both positions. A feminist sensibility entails a commitment to ending the sub- ordination, exploitation, and oppression of women. Many feminists believe that the denial of abortion rights is a glaring manifestation of the oppression of women, thus motivating them to adopt a pro-choice stance. Feminists also view the preference for males over females as sexist, whether that preference takes place in decisions regarding admission to universities, hiring for particular jobs, or, as is the case here, what children to bring into this world. See, e.g., Lynne Marie Kohm, Sex Selection Abortion and the Boomerang Effect of a Woman's Right to Choose: A Paradoxof the Skeptics, 4 WM. & MARY J. WOMEN & L. 91, 115-17 (1997) (discussing the responses of various feminist organizations); April L. Cherry, A Feminist Understanding of Sex-Selective Abortion: Solely a Matter of Choice?, 10 Wis. WOMEN'S L.J. 161, 212- 222 (1995) (arguing that liberal feminist understandings of a woman's right to choose in all situations do not lead to feminist results when that choice expresses a desire for males over females in reproduction). 4 UCLA WOMEN'S LAW JOURNAL [Vol. 16:1 A skeptic might assert that opposition to sex-selective abortion is fundamen- tally condescending to women and therefore cannot be reconciled with a feminist pro-choice position. Just as feminists criticize governments for not trusting women to make the decision to abort by regulating these decisions, the skeptic might claim that a ban on sex-selective abortion holds women's decision-making capacities in the same poor regard. Moreover, the ban condescendingly tells women what values they should hold with respect to having children, and it uses the coercive power of the law to ensure that they do not fall victim to their false consciousnesses by abort- ing female fetuses they may not wish to have. It is true that preventing sex-selective abortion constrains the reproductive choice of women, but to the extent that the choice to abort female fetuses violates the ethic of equality, it may be reasonably curtailed under feminist logic. Hence, feminist opposition to sex selective abortion does not necessarily contradict feminist arguments supporting the right to abortion. Rather, it explicitly recognizes the same principles that these pro-choice arguments typically underscore - the devaluation of female personhood and the oppression of females. Although the logic can be consistent, the agency/cnoice concern is one of the problematic aspects of the provision, which I explore later in this paper. For gender equality arguments against sex selection, see DRUCILLA CORNELL, THE IM- AGINARY DOMAIN: ABORTION, PORNOGRAPHY & SEXUAL HARASSMENT 86-88 (1995); Dorothy C. Wertz & John C. Fletcher, Sex Selection Through PrenatalDiag- nosis: A Feminist Critique, in FEMINIST PERSPECTIVES IN MEDICAL ETHIcs 240 (Helen Bequaert Holmes & Laura M. Purdy eds., 1992); Elisabeth Boetzkes, Sex Selection and the Charter,7 CAN. J.L.