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ROXANNE MYKITIUK

Why care less about the disabled fetus? Add to ...

In a controversial editorial on sex selection in the Canadian Medical Association Journal, interim editor-in-chief Rajendra Kale identified female feticide as an “evil” that “devalues women.” In his view, the deliberate use of ultrasonography to identify female fetuses followed by their abortion in some ethnic groups “is about discrimination against women in its most extreme form.” But why stop at gender? What about disability?

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Despite the fact that the fetus is rightly not a legal person and thus can’t be the bearer of legal rights, there’s a view shared by Dr. Kale and others that fetal sex selection, the deliberate identification of female fetuses by prospective parents and their elimination (with the result that significantly fewer girls are born, in a social and cultural context that differentially values human life on the basis of sex and reinforces practices that oppress on the basis of gender), is a form of gender discrimination. The debate is about how to stop it.

Do we, as Dr. Kale suggests, ban the disclosure of information about sex until after 30 weeks, or do we implement policies and educational strategies targeting the sexist thinking (daughters are a burden, daughters cost too much) and practices (dowry, celebration of only the birth of boys, passing down the family name only through boys) underlying sex selection?

Now consider a different characteristic. If Dr. Kale had cited evidence that a significant number of Canadians were deliberately using ultrasonography to identify fetuses with cleft palates or lips, missing limbs, spina bifida or Down syndrome, followed by their abortion, would he regard this as discrimination against some people with disabilities in its most extreme form?

I suspect not. Indeed, an ultrasound is part of prenatal screening that the Society of Obstetricians and Gynecologists believes should be offered to all pregnant women as part of surveillance for fetal anomalies. As any woman who has ever had an “undesirable” outcome after a prenatal screening ultrasound knows, abortion is one of the options discussed.

But if sex selection can be characterized as a social or cultural practice informed and perpetuated by demeaning attitudes toward women that many of us can agree is discriminatory, what about the selection of fetuses on the basis of disability? For those of us living with, or living with someone with, Down syndrome, a cleft lip or a missing limb, the selection against fetuses with these characteristics is as troubling as the selection against female fetuses.

Indeed, the act of surveillance for and selection against fetuses with these characteristics sends the message that people with these characteristics are less valuable to society, just as the selection of female fetuses sends the message that women are less valuable than men. Moreover, why should we be more concerned about discrimination against women than discrimination against people with disabilities?

Although I don’t agree with Dr. Kale’s solution of denying pregnant women ultrasound information until 30 weeks gestation, I, as both a woman and a mother of a child with an ultrasound detectable anomaly, believe that Dr. Kale’s arguments about discrimination could be extended to fetal characteristics other than the presence of female and male genitalia. In a society committed to protecting the equality rights of women and persons with disabilities, we should be just as concerned about the use of ultrasound to identify and eliminate fetuses on the basis of disability as we are about sex.

Roxanne Mykitiuk is an associate professor of law at Osgoode Hall Law School.

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