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Is Gender Based Abortion Legal? Sweden Says Women Can Get Abortion Based on Baby's Sex

By Javier Lavagnino, Esq. | Last updated on

Swedish health authorities have ruled that gender based abortion is legal. In other words, in Sweden it is okay in the eyes of the law to decide to get an abortion based on an unborn baby's sex. First of all, for those wondering, sex selection abortion is not that unusual in many parts of the world, particularly in Asian countries such as China and India where cultural norms come into play leading to numerous instances of female feticide (sons are preferred). Noteably, female feticide happens even if abortion based on gender is illegal in those countries. Still, many people who read about Swedish authorities' decision are probably shocked, and could very well believe abortions based on gender are clearly illegal here in the United States. Or are they?

The issue here in the U.S. has typically been framed at an entirely higher level, in other words, should abortion itself be legal? If so, at what point in time during a pregnancy do we draw the line, and what methods are prohibited for performing an abortion? Rarely, however, do the reasons behind an abortion itself get looked at. The only exceptions to this have been where concerns over the health of the mother become involved, which can be a reason for allowing an otherwise impermissible abortion (another exception being rape cases).

The reality is that at the federal level, there is no law at this time prohibiting anyone from getting a gender based abortion. However, attempts have been made to address the issue, although proposed legislation has targeted both gender- and race-based abortions. For example, lawmakers recently introduced the Susan B. Anthony/Frederick Douglass Prenatal Nondiscrimination Act, which would "prohibit discrimination against the unborn on the basis of sex or race." Although the language targets "discrimination" against the unborn, the Act explains it really is targeting abortions made on that basis, and also suggests that female feticide is a real issue here in the United States.

The Act points out that, at the moment, states (who have their own abortion laws) really have not addressed the issue making the federal "discrimination" law necessary. Specifically, "Sex-selection abortions are not expressly prohibited by United States law and the laws of 48 States." States are usually left to their own devices in regulating abortions, and the issue of gender-based abortion may end up being legislated at that level. For example, one bill proposed in West Virginia "would prohibit an abortion if the woman seeking it does so solely on account of the gender of the fetus". However, at the moment, the laws on the issue remain relatively undeveloped and laws that criminalize the decision-making behind an abortion raise a host of issues.

As noted above, such decision-making behind an abortion is usually not scrutinized at all, and maybe there's a good reason for that. After all, abortion is, to say the least, a highly polarizing issue in and of itself. But once the motivations for an abortion start to be looked at, perhaps it would open the door to countless other difficult scenarios and questions aside from gender or race. For example, were gender to be considered an illegal motivation for having an abortion, what about other frivolous reasons, such as, say, having a family vacation already planned? Would lawmakers end up having to make a list of acceptable motivations for an abortion? Further, how would they classify the crime of an improperly motivated abortion?

Last but certainly not least, what about enforcing such rules? This would almost certainly be difficult (as other counties with experience can attest to), considering people would certainly learn to make up viable reasons. More updates on this issue are likely in the near future.

NOTE 6/8/09: Corrections to this post were made to reflect Swedish authorities, as opposed to a Swedish court, made the ruling.

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