1. The latest Update from the Royal Commission on New Reproductive Technologies (July, 1993) promises a release on sex preferences and the effects of sex selection, but its recommendations have not yet been made. However, the Commission’s “Framework for Decision-Making”, which articulates eight governing principles “gives priority to the mutual care and connectedness between human beings”, and includes equality and the balancing of individual and collective interests. These commitments on the part of the Royal Commission justify optimism that their recommendations will reflect the concerns presented in this paper.

2. See Vancouver Sun, August 21, 1991 at A8; (1991) 338 The Lancet 813;(1992) 28(1) Medical Post. References here are to the use of fetal monitoring techniques for sex selection; use of the newer technique of sperm separation in Canada has yet to be documented.

3. Studies quoted and referred to in Hoskins, Betty B. &Holmes, Helen Bequaert, “Technology and Prenatal Femicide” in Arditti, et al., eds, Test-Tube Women (London: Pandora Press, 1984) at 237;Google Scholar see also Thobani, Sunera, “More Than Sexist…” in (Spring, 1991) Healthsharing 10.Google Scholar

4. See Steinbacher, Roberta, “Futuristic Implications of Sex Preselection”Google Scholar in Holmes, Helen B., Hoskins, Betty B. & Gross, Michael, eds, The Custom-Made Child? Women—Centered Perspectives (Clifton, NJ: The Humana Press, 1981) at 187;CrossRefGoogle Scholar Williamson, Nancy E., Sons or Daughters: A Cross-Cultural Survey of Parental Preferences (Newbury Park: Sage Publications, 1976);Google ScholarPubMed Williamson, Nancy E., “Sex Preferences, Sex Control, and the Status of Women” (1976) I Signs 847.CrossRefGoogle Scholar

5. See Guttentag, Marcia & Secord, Paul, Too Many Women? The Sex Ratio Question,(Beverly Hills, CA: Sage Publications, 1983);Google Scholar Christine, Overall, Ethics and Human Reproduction: A Feminist Analysis, (Boston: Unwin Hyman, 1987) at 30;Google Scholar Warren, Mary Anne, Gendercide: The Implications of Sex Selection; (Totowa, NJ: Rowman & Allanheld, 1985) at 21–22 Google Scholar.I have focused on the threats to women–s equality; however, a full ethical discussion of sex selection requires a broader treatment, such as those given in Overall and Warren.

6. Overall, supra note 5 at 30; Warren, supra note 5 at 21–22.

7. Overall, supra note 5 at 23–27.

8. Warren, supra note 5 at 83–88.

9. For the development of this notion of a social practice, see Vadas, Melinda, “A First Look at the Pornography/Civil Rights Ordinance: Could Pornography Be the Subordination of Women?” (1987) 84 J. of Phil. 487.Google Scholar

10. So, for instance, if I overlook a person of colour as a possible employee so as to protect her from a hostile work environment, I have been complicitous with that racist environment, and have aligned myself with the systemic discrimination that undermines racial equality. Similarly, acts of sex selection, embedded as they are in a sexist environment, proclaim the moral inferiority of women, and are thus themselves sexist. They cannot be salvaged from this charge by the good intentions or moral innocence of the actor.

11. See supra note 2. This is not to suggest that onlyIndo-Canadians practice sex selection, nor that they alone prefer sons. The ethnocultural dimension of their preference, however-its connection to significant religious and cultural practices-poses unique problems for the attempt to defend legal remedies to sex selection.

12. Papp, Aruna, “A Matter of Gender” (Spring 1991) Healthsharing 12.Google Scholar

13. Some countries where later-stage abortion is restricted, for instance Denmark, have laws prohibiting the prior disclosure of gender information. Although I do not advocate a return to criminalizing abortion, I do advocate a non-disclosure law, although I share the misgivings of other feminist writers over forfeiting yet more control over reproduction. See, e.g., Menon, Nivedita, “Abortion and the Law: Questions for Feminism” (1993) 6 Can. J. of Women and the Law at 103.Google ScholarPubMed

14. See “The Prohibition of Artificial Conception Technologies: Is There a Right to Procreate?”, Ontario Law Reform Commission, Volume 1, Report on Human Artificial Reproduction and Related Matters (Toronto: Ministry of the Attorney General, 1985) 41.

15. Communitarianism, in this context, refers not to the strong ontological thesis that individual selves are socially constructed, or that they bear natural social obligations (see Sandel, Michael, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982),Google Scholar but to the weaker thesis that there are shared goods that are irreducible to, and may indeed be weighed against, the satisfaction of individual interests. Although articulated somewhat differently, the idea of a shared good is developed by Wolff, Robert P., The Poverty of Liberalism (Boston: Beacon Press, 1968) 167–80;Google Scholar Green, Leslie, The Authority of the State (Oxford: Clarendon Press, 1988) 206–09;Google Scholar and Taylor, Charles, “Cross-Purposes: The Liberalism-Communitarian Debate” in Rosenblum, Nancy L., ed., Liberalism and the Moral Life (Cambridge: Harvard University Press, 1989) 159 at 167–69.Google Scholar

16. This account of the Charter’s communitarianbias must withstand objections from collectivists. The “collectivist” objection arises from some observations of Kallen, Evelyn (“Multiculturalism, Minorities, and Motherhood: A Social Scientific Critique of Section 27” in Canadian Human Rights Foundation, Multiculturalism and the Charter: A Legal Perspective (Toronto: Carswell, 1987).Google Scholar Kallen criticises the Charter for failing to make explicit collective rights of ethnocultures, and for its individualistic language, which sits ill with the communitarian self-concepts and decision-making practices and procedures of many Canadian ethnocultures. But Kallen’s objections can be met, first, by recognising the purposive nature of Charter interpretation, (see The Honourable Fogarty, Kenneth H., Equality Rights and Their Limitations in the Charter (Toronto: Carswell, 1987) at274;Google Scholar and Mahoney, , “The Canadian Constitutional Approach to Freedom of Expression in Hate Propaganda and Pornography” (1992) 55 L. and Contemp. Problems 83)Google Scholar and, second, by recognising the power of section 27. The Charter, viewed purposively, allows the courts to interpret the listed rights in light of the content of the interests they are designed to protect. Thus, section 27’s commitment to multiculturalism, although not explicitly acknowledging collective rights or listing provisions for cultural preservation and enhancement, nevertheless, by the logic of an ethnoculture and the exigencies of its survival, may issue in effective recognition of both (see Joseph Eliot Magnet, “nterpreting Multiculturalism”, Canadian Human Rights Foundation, this note, at 145—for an account of the radical nature of the multicultural commitment, given his analysis of structural ethnicity). Second, section 27’s immunity to defeat by section 33, combined with its potential for shoring up section 15 claims, bode well for the success of collectivist aspirations (see Clare F. Beckton, “Section 27 and Section 15 of the Charter”, Canadian Human Rights Foundation, this note, at 1).

17. Lessard, Hester, “The Idea of the ‘Private’: A Discussion of State Action Doctrine and Separate SphereIdeology– in McBride, Boyle, & Yogis, , eds, Charterwatch: Reflections on Equality (Toronto: Carswell, 1986).Google Scholar

18. Ibid, at 134. The whole “legal remedies” approach to equality, anticipated by Lessard and defended in this paper, is hotly contested in feminist scholarship. Some feminist critics have drawn attention to the incompatibility between the liberal “rights” model (with its appeal to notions like privacy) and the pursuit of women’s equality. Rights-talk may pit individual women against one another (Nivedita Menon, supra note 13 at 105; appeals for the recognition of women’s rights based on privacy and autonomy reinforce the language and conceptual structures by means of which women have been oppressed (see Smart, Carol, Feminism and the Power of Law (London: Routledge, 1989);CrossRefGoogle Scholar or rights challenges may simply deflect attention from important policy matters ( Fudge, Judy, “What Do We Mean by Law and Social Transformation?” (1990) 5 Can. J. of L. and Soc. 47)CrossRefGoogle Scholar. Thechallenge of these sceptical views can partly be met, I believe, by citing the rationale for Charter decisions that, while favourable to the cause of women’ s equality, have not appealed to privacy or autonomy. Although progress in equality decisions is not uniform (see Majury and Lepofsky, cited infra notes 19 and 20), optimism is justified, 1 believe, by reviewing some recent cases—notably R. v. Keegstra, [1990] 3 S.C.R. 697 and R.v. Butler, [1992] 1 S.C.R. 452—where what Kathleen Mahoney calls a “harm-based equality approach” isused (Mahoney, supra note 16 at 77). Mahoney comments “Recently, a series of decisions by the Supreme Court of Canada has articulated some alternative perspectives on freedom of expression that are more inclusive than exclusive, more communitarian than individualistic, and more aware of the actual impacts of speech on the disadvantaged members of society than have ever before been articulated in a freedom of expression case....” (at 78) The outcome of Butler extends the approach here identified by Mahoney, focusing on the harms of pornography, undertaking an “impact” analysis, and allowing the individual’s right to free expression to be trumped by the pressing social objective of women’s safety, equality and dignity. Such an outcome, in my view, goes far to vindicate the viability of the “legal remedies approach” for feminists.

19. Majury, Diana, “Equality and Discrimination According to the Supreme Court of Canada” (1991) 4 Can. J. of Women and the Law at 407.Google Scholar

20. Lepofsky, M. David, “The Canadian Judicial Approach to Equality Rights: Freedom Ride or Rollercoaster?” (1992) 1 Nat’l. J. of Con. L. 315.Google Scholar

21. R. v. Andrews, [1989] 1 S.C.R. 143; R. v. Turpin, [1989] 1 S.C.R. 1296 at 1331–32.

22. Andrews, ibid.; Janzen v. Pharos Restaurant, [1989] 1 S.C.R. 1252; R. v. Keegstra, supra note 18.

23. Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; R. v. Nguyen (sub nom. R. v. Hess), [1990] 2 S.C.R. 906.

24. Brooks, ibid.

25. Janzen, supra note 22.

26. The approach names two principles identified by Majury as earmarks of a feminist approach to equality and discrimination.

27. See McAllister, Debra M., “Butler. A Triumph for Equality Rights”, (1993) 2 Nat’l. J. of Con. L. at 118.Google Scholar

28. For the classic exposition of the liberal position, see Hart, >H.L.A., Law, Liberty and Morality (Stanford: Stanford University Press, 1963),Google Scholar and Feinberg, Joel, The Moral Limits of the Criminal Law (New York: Oxford University Press, 1984–88).Google Scholar

29. See Annas, George, “Fairy Tales Surrogate Mothers Tell” in Gostin, Larry, ed., Surrogate Motherhood: Politics and Privacy (Bloomington: Indiana University Press, 1988);Google Scholar Clark, Lorenne, “Sexual Equality and the Problem of an Adequate Moral Theory: The Poverty of Liberalism” in Cragg, Wesley, ed., Contemporary Moral Issues, 2nd ed., (Toronto: McGraw-Hill Ryerson, 1987) 311 at 322;Google Scholar Shiner, Roger, “Pornography and Freedom of Speech” in Maher, Gerry, ed., Freedom of Speech: Basis and Limits (Stuttgart: 1985) at 23;Google Scholar and Melinda Vadas, supra note 9, at 508.

Recently, feminist scholars have expressed doubts about aligning themselves with communitarians. So, Alison Jaggar comments, “Because of feminism’s essential interest in social transformation, it is hard to see how feminists could be content with the parochial conventionalism or conservatism often associated at least with the communitarian tradition of contemporary moral relativism.” ( Jaggar, Alison M., “Feminist Ethics: Projects, Problems, Prospects” in Card, Claudia , ed., Feminist Ethics (Lawrence: University Press of Kansas, 1991) 78 at 95).Google Scholar Jaggar’s objection raises deep issues in moral epistemology and feminist praxis, which cannot be dealt with here. However, I hope to show that communitarianism need not be antithetical to the promotion of women’sequality.

30. Shiner, supra note 29 at 23.

31. Ibid, at 27.

32. R. v. Keegstra, supra note 18 at 747.

33. R. v. Butler, supra note 18 at 457 [in headnote]. My italics.

34. R. v. Morgentaler, Smoling and Scott, [1988] 44 D.L.R. (4th) 385.

35. McCallum, Margaret, “Men, Women, and the Liberal Ideal: An Historian’s Reflections on the Morgentaler Case” (1989) 96 Queen’s Quart. 298 at 308.Google ScholarPubMed See also references to privacy, supra note 18.

36. Lessard,supra note 17 at 134.

37. See, for example, McDonnell, Kathleen, “Not An Easy Choice: A Feminist Re-Examines Abortion” in Cragg, Wesley, ed., Contemporary Moral Issues,3rded., (Toronto: McGrawHill Ryerson, 1992);Google Scholar Moen, Elizabeth, “What Does ‘Control Over Our Bodies’ Really Mean?” (1979) 2 Internat. J. of Women’s Studies 129.Google Scholar

38. Raymond, Janice, “Sexual and Reproductive Liberalism” in Leidholdt, Dorchen & Raymond, Janice G., eds, The Sexual Liberals and the Attack on Feminism (New York: Pergamon Press, 1990) at 110.Google Scholar

39. Aruna Papp, supra note 12 at 12, reports on a study of “ …wife abuse in the South Asian community living in Scarborough, Ontario. Of the 100 women interviewed, 22 said that they had been unable to produce a son and this was the main causeof abuse in their marriage. The other 78 stated that until they had given birth to a son they had lived in constant fear and uncertainty.... Seventeen of the 22 women without a son had been in the hospital receiving psychiatric care at one time or another.... In cases where police or other social service agencies have become involved, often the abuse has escalated. When the agency was able to assist the woman to leave and go to a shelter, the anxiety about the future, the concern that no South Asian man will marry a divorced woman’s daughter, the lack of financial and emotional support from relatives, and the lack of social support systems usually forced a return to the family. Their state of mind is unimaginable.” It is important to note, however, that neither spousal pressure for sons, nor spousal abuse, is limited to South Asian Canadians. Furthermore, the women in the study felt “they are not only the victims of their religion and culture, but of the racist and misogynist Canadian society they live in.”

40. Morgan, Kathryn Pauly, “Of Woman Born? How Old-Fashioned!—New Reproductive Technologies and Women’s Oppression” in Christine, Overall, ed., The Future of Human Reproduction (Toronto: The Women’s Press, 1989) 60 at 71.Google Scholar

41. For further discussion of the role of racism in exacerbating the suffering of South Asian Canadians, see Sunera Thobani, supra note 3 at 10–11.

42. For a sensitive discussion of the interpretive problems in assessing women’s stake in cultural traditions,see Spelman, Elizabeth V., Inessential Woman: Problems of Exclusion in Feminist Thought (Boston: Beacon Press, 1988),Google Scholar especially Chapter 5(“Gender & Race: The Ampersand Problem in Feminist Thought’” at 114).

43. Thobani, supra note 5 at 13.

44. Feminist commentators have explored the significance of being heardfrom the ethics of care ( Sheppard, Colleen, “Caring in Human Relations and Legal Approaches to Equality” (1993) 2 Nat’l. J. of Con. L. 305,Google Scholar from humanist liberalism ( Okin, Susan, “Humanist Liberalism” in Rosenblum, Nancy M., ed., supra note 15 at 39),Google Scholar and from the Habermasian 'ideal speech' model ( Benhabib, Seyla, “Liberal Dialogue Versus a Critical Theory of Discursive Legitimation”, ibid, at 143.CrossRefGoogle Scholar For a poignant presentation of a relevant case study, see White, Lucie E., “Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G.” in Bartlett, Katharine & Kennedy, Rosanne, eds, Feminist Legal Theory: Readings in Law & Gender (Boulder: Westview Press, 1991) at 404.Google Scholar

45. Oakes, [1986] 1 S.C.R. 103 at 136.

46. Williams, Bernard, “The Idea of Equality” in Bedau, Hugo A., ed., Justice and Equality (Englewood Cliffs, NJ: Prentice-Hall, 1971) at 116.Google Scholar

47. James, William, Talks to Teachers on Psychology: and to Students on Some of Life’s Ideals (New York: Henry Holt & Co., 1899) at 294.CrossRefGoogle Scholar

48. We do not, of course, have an equal share of this potential. If equality is to ground respect for persons, some account must be given to the effect that unequal shares of potential for zestful pursuit of personal meaning do not defeat the universal demand. For an interesting “pragmatic” defense of the demand for equal respect, see Haksar, Vinit, Equality, Liberty and Perfectionism (Oxford: Oxford University Press, 1979), Ch.3.Google Scholar

49. Nielsen, Kai, Equality and Liberty: A Defense of Radical Egalitarianism (Totowa, NJ: Rowman & Allanheld, 1985).Google Scholar

50. Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).Google Scholar

51. Nozick, Robert, Anarchy, State and Utopia (New York: Basic Books, 1974);Google Scholar Narveson, Jan, The Libertarian Idea (Philadelphia: Temple University Press, 1988).Google Scholar

52. Norman, Richard, Free and Equal: A Philosophical Examination of Political Values (Oxford: Oxford University Press, 1987).Google Scholar

53. Ibid, at 77.

54. Why are the principles of equality “appropriate to” co-operative communities, according to Norman? Because participants in them are voluntarily committed,and therefore patterns of power distribution must be defensible to them, as rational beings. Why would the cooperative community be so defensible? Because it is effective in promoting their goals (but,of course, so might be the coercive or exploitative association); and because it respects them as persons. Thus, rational beings will commit themselves to cooperative communities on both moral and pragmatic grounds. See Norman, supra note 52 at 77–88. However, it seems clear that rational beings might agree (more or less voluntarily) to some ine-galitarian political arrangement because their options are limited, and some of their projects require coordination with others. Presumably, while rational, such associations are less desirable to human beings than communities to which they could “commit’, that state of mind distinctive of participants in Norman’s cooperative community. Since the notion of commitment plays an important role in distinguishing Norman’s position from other neo-Rawlsians, he owes us a more comprehensive account of it.

55. Ibid, at 73.

56. Ibid, at 70.

57. Ibid, at 126.

58. Benhabib, supra note 44 at 155.

59. Clark, Lorenne, “Liberty, Equality, Fraternity—and Sorority” in Bayefsky, Anne ed., Legal Theory Meets Legal Practice (Edmonton: Academic Printing & Publishing, 1988) at 261;Google Scholar Okin, Susan Moller, “Humanist Liberalism” in Rosenblum, Nancy L., ed., supra note 44 at 39.Google Scholar

60. Littleton, Christine, “Reconstructing Sexual Equality” in Bartlett, & Kennedy, , eds, supra note 44 at 35.Google Scholar

61. I acknowledge the vagueness of the notion of “medical relevance.” Too broad an interpretation of what is medically relevant will draw the teeth of any regulatory policy; too narrow an interpretation will lack sensitivity to patient needs. However, I don’t believe “medical relevance” is impervious toconsistent and sensible interpretation, particularly where ethics review boards are working under common guidelines.

62. Christine Overall, supra note 5 at 33.