Which Moral Theologians Should Care About Intersex-Selective Abortion?

Rashad Rehman
Wednesday 29 June 2022
  1. Introduction, Hypothesis, and Methodology
  2. Fields of Study
  3. Discussion: Application to Moral Theology
  4. Conclusion

1. Introduction, Hypothesis, and Methodology

1.1 Introduction

Many people, communities and countries are in favour of abortion as a healthcare right, arguing that women have a right to receive an abortion upon request. Some contexts place ethical constraints on this right, typically based on the age of the preborn child, the mother’s safety, or the circumstances of the mother (and her conceiving of her child) more generally. At the same time, intersex pediatric surgery (IPS) is being increasingly ethically challenged with many countries banning healthcare facilities from performing IPS. At first, there appears to be no relation between these two ethical issues. However, modern biotechnology such as the assistive reproductive technology (ART), preimplantation genetic diagnosis (PGD), makes it possible to screen for intersex conditions in utero, opening the possibility of intersex-selective abortion (ISA), a sub-set or instance of sex-selective abortion (SSA). What emerges is the realization that if IPS is wrong because, as its critics have argued, it wrongfully discriminates against and harms intersex lives, then ISA is much more wrong because instead of misvaluing intersex lives, it devalues intersex lives altogether. In other words, IPS might, as some have argued, discriminate by implying that an intersex child is better off being male or female but not intersex, but ISA discriminates by implying that an intersex child is better off not existing at all. Some have recognized this connection and have vainly tried to maintain both their pro-abortion commitments and their anti-IPS commitments. This has proved at best duplicitous, and at worst conceptually impossible. While it is known that a strong stance against IPS results in an inability to morally condemn ISA, with one notable exception in moral theology, this connection has not been generally appreciated.

1.2 The Theological Puzzle

Traditionally, it is perceived that liberal moral theologians have focused on the rights of those who are intersex – consider that there is an ‘I’ in ‘LGBTQI+’ – and conservative moral theologians who have focused on the issue of abortion. Regardless of the broad generalization, ISA is an issue both of abortion and of discrimination against those who are intersex. It is time for theological, theoretical, and political divides over these ethical issues to end and conversations regarding intersex-based discrimination, and the issue of abortion, to begin. Given this background, here is the theological puzzle I wish to interrogate: if there is a strong bioethical argument that morally condemning IPS requires the moral impermissibility of ISA, should conservative or liberal moral theologians care about ISA?

1.3. Hypothesis

There is a strong argument that if IPS is wrong, then ISA is wrong; if ISA is wrong, then some abortions are morally impermissible. This means that if IPS is wrong, then some abortions are morally impermissible and should be legally restricted. This generates a further dilemma. ISA, like SSA, cannot be legally indicted on the grounds of a thought crime e.g. an action becomes a thought crime when some action x moves from the non-punishable to the punishable in virtue of their motive alone. The only way to legally indict ISA without invoking thought crimes is to explain the wrongfulness of ISA in terms of violating the right to life of pre-born children, and not primarily on sex-based discriminatory grounds. Consequently, the argument is abbreviated: If IPS is wrong, ISA is wrong; however, if ISA is wrong and should be legally punishable, it requires that ISA, like all other abortions, are morally impermissible because they commit a human rights violation. If my hypothesis is correct, then moral theologians – from conservative or liberal angles – should take more seriously the moral and legal problem of ISA.

1.4 Methodology

Because of the bioethical and biotechnological novelty of this pressing moral problem, priority is given to the bioethical analysis in this paper and, consequently, the application to moral theology is only briefly sketched and discussed. This paper proceeds in two major parts. In the first part, the discussion concerns the biotechnology which makes ISA possible, the moral arguments for and against ISA, and the conceptual relationship between IPS and ISA. It is here that my central hypothesis (see above) is made. In the second part, the discussion is then applied to moral theology, interrogating specifically whether and how moral theologians should begin to think about the problem of ISA, and what kinds of theoretical advantages the ethical discussions of ISA might have for moral theologians broadly.

2. Fields of Study

2.1 Bioethics

2.1.1 Background: Sparrow’s (2013) Defenders and Critics

Pre-implantation genetic diagnosis (PGD) is an assisted reproductive technology (ART) which “was primarily developed in response to requests for help from people at a high risk of passing on a serious genetic disorder to their children” (Harper and Serhal 2009, 259), it is also able to be used to screen for intersex traits which are not always “disorders”. PGD is also able to be used in conjunction with in vitro fertilization (IVF): “…where a family history of intersex birth exists, parents may be offered the choice of conceiving via in vitro fertilization (IVF) in order that they might then use preimplantation genetic diagnosis (PGD) to avoid the birth of an intersex child.” (Sparrow 2013, 29). As Sparrow puts it, himself a proponent for its moral permissibility, the central moral question concerns “the ethics of the use of preimplantation genetic diagnosis (PGD) to prevent the birth of children with intersex conditions/disorders of sex development (DSDs)” (2013, 29). Since Sparrow’s (2013) article in defense of some uses of PGD, there has been supportive refinement to the effect that recommendations are made “against making public policy changes to reduce or eliminate the use of PGD to avoid intersex births” (Trafimow 2013, 55) as well as criticism (Aurenque and Ehni 2013; Nisker 2013). On a practical level, the most serious criticism is arguably Nisker’s in which he argues that “if we accept the use of genetic testing [PGD specifically] to prevent children whose genitalia are along a continuum of difference [DSD], we must accept genetic testing to prevent a child of any physical characteristics not desired by potential parents” (2013, 48). Echoing Nisker’s point (2013) is Gupta and Freeman who argue against Sparrow (2013), but who resist holding that there is anything intrinsically wrong with selective termination of intersex preborn children because “whether it is ethical for prospective parents to use PGD for intersex conditions must be decided on a case-by-case basis”, “we do not believe the ethics can be settled a priori for all cases.” (2013, 50). The strength of the dehumanization, however, lies ultimately in Sparrow’s claim that the preborn intersex child cannot be harmed: “Unlike surgery, PGD will not harm the child…” (2013, 36).

2.1.2 Dissent From Sparrow’s (2013) Argument

However, there are those who dissent. Clune-Taylor – following Holmes (2008) and McRuer (2009) – has argued that “such practices [e.g. PGD to screen for intersex traits] are applied differentially in order to eliminate particular lives or populations and to promote and proliferate others” (2016, 75). The problem with prenatal selection and diagnostic technologies is their endorsement of “selective termination” (Clune-Taylor 2016, 75) or, as Holmes (2008) puts it:

…their [prenatal selection and diagnostic technologies] eugenic potential are increasingly a concern for the intersexed. At least two forms of intersex—androgen insensitivity syndrome (AIS) and congenital andrenal hyperplasia (CAH)—are detectable in a developing fetus and some clinicians propose that we ought to use prenatal diagnostic tools to prevent intersex births from occurring. (177)

While Holmes calls such a practice “eugenic” and says that “the identification of any of these syndromes [of intersexuality] fails to provide a compelling reason for terminating a pregnancy”, she nevertheless maintains her pro-abortion commitments: “My concern here is not to institute laws to impair women’s reproductive choice…” (2008, 178). However, this is at the expense of undercutting a strong argument against selective abortion on the basis of both harming intersex pre-born children and symbolically harming/indirectly discriminating against intersex persons by selecting against them by stipulating that they are better off never having been born (we will return to this in the ‘Discussion’ section).

2.1.3 Objections and Replies

Consider here three initial objections to the claim that ISA is an egregious human rights violation against intersex persons. These objections concern the formulation of the problem in terms of “moral permissibility”, whether children can be harmed in utero, and whether there is anything wrong with SSA generally.

First, the objection is that there is an assumption that the pre-born child can be harmed in utero. Sparrow writes that the intersex child in utero cannot be harmed (2013, 36). It is not easy to understand how Sparrow argues for this claim; however, Kaczor offers one way to describe it:

In coming into existence, a human being is neither benefited nor harmed, at least if benefited means being made “better off” than previously and harmed means being made “worse off” than previously. Better off and worse off are comparative terms. Unless we believe in something like pre-existing souls, prior to a human being’s coming into existence there is no state of well-being to which we may compare the present condition. But a human being is wronged not just when made “worse off,” which is impossible in the case we are considering, but also when someone does not have that to which he or she is entitled or that which human beings can reasonably expect. (2020, 21)

It might be possible to read Sparrow as putting the child in utero within this position. Since there is no born, sentient intersex child, there is no possible way in which they can be harmed. If Sparrow holds that preborn children cannot be harmed in utero, there are at least two problems. First, he needs to defend the thesis that children cannot be harmed in utero as though the comparatives “better off”/“worse off” are only applicable post-birth and not pre-birth i.e. only when there is a born intersex child. The problem is that this thesis would be not only inconsistent with measures against harming children in utero, like consuming methamphetamines during pregnancy or prophylactically preventing fetal alcohol syndrome (FAS), but would require that his article is a complete misnomer. What could the harm of PGD be if there is no intersex child to be harmed or benefitted? Is the harm of PGD only about the intersex community or parents of (non-existent?) intersex children? Second, there is no principled difference between sex-selective and intersex-selective abortions, with the result that being against sex selective abortion and for intersex-selective abortions are on a moral par. This might not be a problem for one who already accepts the former, but there is reason to reject the former (as argued in 2.1.6).

Second, the objection is that framing the issue in terms of “moral permissibility” overlooks the source of harms concerning PGD. Davis’ problem is with framing “moral permissibility” of PGD:

…what I’ve found in my research is that a major source of the social and psychological harm originates in the medical profession and could be prevented with open, honest, and accurate communication and information. I therefore find it problematic to frame the use of PGD as “morally permissible” in addressing – or worse, avoiding – the problems associated with intersex traits… (2013, 53)

While it is true that much of the social and psychological harm is mitigated by better medical care and has historically been sourced in the medical profession, it is false that this accurately sources why PGD, and consequently ISA, is harmful. The direct harms are against intersex persons themselves in utero. It is thus pertinent that the issue does not frame itself around anything but PGD and ISA, since these are directly related to intersex persons themselves and not peripheral concerns which are not at stake in this present context i.e. adjudicating whether PGD and ISA are moral is not contingent on “open, honest, and accurate communication and information.”

Third, the objection from the moral permissibility of SSA. The problem is that ISA is just a sub-set of SSA which stands in a morally symmetrical relationship. If there is nothing wrong with SSA, then there is likewise nothing wrong with ISA, and vice versa. Williams argues that “if we are committed to a pro-choice stance with regard to selective abortion for disability, we will be unable to justify the prohibition of sex-selective abortion (SSA)” (2012, 125). Blackshaw (2020) argues that the liberal pro-choice paradigm of Williams can be applied “to selective abortion based on other traits pregnant women may decide are undesirable. These include susceptibility to disease, level of intelligence, physical appearance, sexual orientation, religious belief and criminality—in fact many traits attributable to some degree to a genetic component” (2012, 445).

To answer how SSA is not “genocide” (literally the killing of a certain kind), Blackshaw (2020) resorts to Williams’s answer that “if performed on pre-sentient fetuses, [SSA] does not involve the violation of any fundamental human right.” (2012, 451). The problem is twofold. First, while sentience might be a criterion for personhood, humanity is never predicated upon sentience. It would make for a strange position that one’s status as a member of the natural kind ‘human’ was contingent upon being sentient rather than on other facts about being human. Second, and following the first point, if the fetus in the womb is ‘human’ (fetuses, it will be recalled, belong to natural kinds), then by performing SSA a human rights violation is taking place.[1]

Salvulescu (2001) argues that parents have a moral responsibility to “select the child, of the possible children they could have, who is expected to have the best life, or at least as good a life as the others, based on the relevant, available information.” As Blackshaw reads Salvulescu, while “he is primarily referring to preimplementation genetic diagnosis”, “Salvulescu is clear that this principle could be extended to termination of pregnancy” (2020, 453).  However, those who are against IPS have explicitly stated what is wrong with ISA (which applies equally as much to SSA); however, and here is where the argument begins, they have not taken their rejection of IPS to imply a thesis regarding ISA.

2.1.4 Failing to Take Seriously IPS’ Relation to ISA

Here is the evidence that those who are against IPS have admitted the moral relation to ISA, but have failed to appreciate the counterpart legal relation to ISA. The most plausible reason that the advocates against IPS do not take a full legal stance against ISA concerns not the morality of ISA, but the criminalization of ISA. The complete decriminalization of abortion appears to be inconsistent with the criminalization of ISA.

Here are three of the most explicit cases from three of the most ardent academics against IPS:

  1. Holmes writes that “the identification of any of these syndromes [of intersexuality] fails to provide a compelling reason for terminating a pregnancy.” The inconsistency: “My concern here is not to institute laws to impair women’s reproductive choice…” (2008, 178). The problem is that reproductive choice in this context means or logically entails permitting ISA which is far worse than IPS on Holmes’ account. Holmes (2008) herself thinks that IPS is bad enough to be outlawed; and if ISA is far worse, then consistency demands outlawing ISA.
  2. Orr’s position is encapsulated in her article in which the title reads Abortion is always essential medical care (2020b). In her writing on intersex surgeries she writes that “these surgeries” (by which she means IPS) “take place in Canada and across the globe because of the cultural investments in the belief that all human beings must be exclusively male or female, in terms of both biology and identity” (2020a). Presumably this is a constitutive element – among many others she lists – to the wrongfulness of IPS; it wrongfully discriminates against those who are intersex on the basis of their sex i.e. their inability to fit within the ‘male’/‘female’ binary. However, if it is an act of wrongful discrimination on the basis of sex to force a child into the ‘male’/‘female’ binary, then it stands to reason that preventing a child from existing or selectively terminating a preborn intersex child simply because they are intersex is not much more overtly discriminatory (requiring legal anti-discrimination laws to protect pre-born intersex children).
  3. Clune-Taylor (2016) has argued that “such practices [e.g. PGD to screen for intersex traits] are applied differentially in order to eliminate particular lives or populations and to promote and proliferate others” (2016, 75). This is why she rejects IPS (2019). However, in arguing against the normality of heterocoital intercourse (and the consequent wrongful pathologization in infertile intersex persons) (2016, 181), she qualifies her stance: “…[the] use of reproductive technologies from medications that facilitate ovulation to IVF has led to a radical reconceptualization of reproduction in both the medical and popular spheres…Reproductive technologies [i.e. IVF] have not only divorced reproduction from heterocoital intercourse (and the desire for it), they has [*have] redfined [*redefined] Reproductive Function and subsequently, infertility as impairment in reproductive function such that I suspect few who have utilized such technologies would think of themselves as infertile…fertility is not an all-or-nothing thing, particularly in a context where reproductive technologies are available” (2016, 181-2). It is unclear how she maintains consistency between morally and legally indicting IPS as discriminatory, while also maintaining that the reproductive technology which makes possible harm to intersex lives i.e. ISA, is (presumably) morally permissible.

2.1.5 The Connection Between IPS and ISA

Here is the claim I seek to make: if IPS is wrong for the reasons stipulated by its critics, then ISA is wrong. There are two pertinent moves to motivate this argument. First, the motivation for the “mere difference” account (as a thesis regarding intersex nomenclature and the moral impermissibility of IPS) generates a strong argument against ISA. Second, if there is a moral case against SSA, and ISA is a sub-set or specific instance of SSA, then ISA is morally impermissible.

First, consider the initial motivation for the “mere difference” account: being different or having a medical disorder does not imply a negative moral evaluation of the intersex person themselves. This was evidenced in the case of intersex medical nomenclature and as an argument against IPS. In terms of the former, it will be recalled that this was why the 2006 consensus statement (Hughes et al. 2006) was criticized especially in its use of “disorder” (featured in (1)) in favor of “difference”, “divergence” or “variation” (2) and (3), as well as a rejection of allegedly pathologizing terms used in definitions of DSDs such as “atypical”, “abnormal”, “anomaly”, etc. (Johnson et al. 2017; Delimata 2019; Malatino 2019). If being “different” need not yield surgical implications, then it should not yield the evaluative judgement that it would be better for one not to exist as having a particular intersex difference than existing with one. Relatedly, in Holmes (2008) we see a style of argument used by philosopher Elisabeth Gedge (2008),[2] whose focus is that of the symbolic harms of intersex surgery, namely, those harms which are derivative from what our practices not only do, but also what they say, that is, the message they send. Her argument is that IPS is wrong because of these symbolic harms. Another way of expressing this is to say that the symbolic harms of IPS are indirectly discriminatory (Altman 2020). The message being sent in ISA is not merely (as critics have argued of IPS) that a child would be better off within the sex binary of male or female, but that they would be better off never having been born at all. It would be better to fail to exist as an intersex person than it would be to exist as an intersex person. The motivation for the “mere difference” account, applied to IPS, yields the conclusion that ISA devalues intersex lives.

Second, consider SSA again. If SSA discriminates on the basis of sex, then there ought to be a legal restriction on those abortions i.e. as anti-discrimination laws protect against wrongful discrimination. However, one might object that there is nothing wrong with ISA for the same reason that there is nothing wrong with SSA. If there is nothing wrong with SSA, and consequently ISA, then there should be no criminalization of either of the two and abortion should remain unrestricted. In reply, to see that there is something morally wrong with ISA, consider the moral case against SSA. If there is a strong case against SSA, then there is a strong case against ISA – since the former is a sub-set or specific instance of SSA. It is here that I argue that there is such an argument against SSA.

2.1.6 The Argument against SSA

Kaczor (2008) argues that sex-selective abortion is always morally impermissible. There should be a distinction between arguing against all abortions and arguing against some kinds of abortions. As such, there are three kinds of sex-selection. First, “prior to conception by sperm separation”, second “after conception but before implantation through genetic diagnosis of IVF embryos”, and third “after implantation by abortion” (2008,565). Kaczor aptly notes that “many people who describe themselves as pro-choice nevertheless oppose sex-selective abortion” (566). The problem is that being pro-choice and being against sex-selective abortion, while not explicitly logically contradictory, is a difficult conjunction of theses: “…from a pro-choice perspective, there is some difficulty in explaining why fetal killing for gender [i.e. sex] preference should be wrong” (566).

Kaczor writes that Rogers, Ballantyne and Draper give arguments against sex-selective abortion (SSA). Their arguments are that “sex-selective abortion practiced in countries with a strong preference for a son is not an autonomous choice” (2007, 567), that it causes “perpetuation of discrimination against women, disruption to social and familial networks, and increased violence against women” (567), and finally that “there are bad consequences of sex-selective abortion” (568). Kaczor notes that the arguments in favor of this thesis by the above authors are not convincing, but that they are nonetheless right in thinking that SSA is morally impermissible. For spatial purposes here, I will focus on the argument that SSA “is wrong because it is a form of unjust discrimination” (567). Kaczor notes that any argument for SSA, should it want to maintain broader commitments to holding that all abortions are morally impermissible, should be careful to say that the unjust discrimination targets the child: “…against whom is this unjust discrimination practiced? Given the denial of fetal personhood, the discrimination in question cannot be against the human fetus herself or himself. Discrimination is only problematic when practiced against persons who merit equal and just treatment. To discriminate between non-persons – plucking the red roses but leaving the white, for example – is not ethically problematic in itself, since these plants do not have rights nor equal respect as persons. Since the human fetus is not a person on the typical pro-choice view, concerns about discrimination against the human fetus should not be relevant in considering actions taken against humans prior to birth” (568). In reply, Rogers, Ballantyne and Draper argue that it is not the child that is harmed but the perpetuation of “a discriminatory and oppressive practice”, “that fails to accord women the respect they deserve” (2007, 568). However, there are two reasons to reject this as a plausible reply. First, this does not consistently target what makes sex-selective abortion wrong. If a case of SSA were to promote the opposite goal e.g. that women are more valued rather than less valued (568), then no harm has been performed by selectively terminating a preborn child on the basis of her sex. However, consistency demands that all cases are accounted for since this is what is supposed to make SSA wrong. Second, Kaczor offers what appears to be a reductio: “…if the female fetus is not a person, then presumably one can respect the rights of adult female human beings and nevertheless kill fetal female human beings” (568).[3]

It is here that I supplement Kaczor’s argument by posing a dilemma for those who maintain that sex-based violence against adult female human beings is wrong and that SSA is morally permissible. Concede first that killing adult female human beings is wrong because it is sex-based violence against women. The claim cannot be in the abstract “against women generally” but must be against particular women. For example, what makes it wrong to kill Sarah is not primarily that it perpetuates to other misogynistic killers that it is okay to kill other women, but fundamentally that it kills Sarah. This shows that it is not the holding/perpetuation of the belief that “killing adult female human beings on the basis of their sex is morally permissible” that makes sex-based violence harmful. Rather, it is the act of sex-based violence towards her itself  that primarily harms her. Even if the discriminatory belief is a necessary condition for the wrongfulness of killing Sarah (e.g. we can imagine the killing would not happen barring the belief that it was morally permissible) or a necessary result of it (e.g. example above), it is not a sufficient condition. It is not sufficient because the wrongfulness of killing Sarah (because she is a female) is not because the belief is wrong per se (even though it is wrong), but the action predicated upon that belief i.e. it wrongfully kills Sarah.

Consider an analogy. Suppose one lists the reasons why sexual assault is harmful against women. Suppose someone, as I was once told[4], says that sexual assault is wrong because it is illegal. Perhaps this might be supplemented by other considerations e.g. that there is something wrong with perpetuating beliefs which ruin the social order. This would completely miss why the sexual assault was wrong. It was wrong, if for no other reason, than because it was a fundamentally unjust act against a particular human being. To deny this would be to say that it was not wrong if it were not illegal (which is absurd). By extension, if the wrongfulness of killing adult female human beings on the basis of their sex is explained by its perpetuation of the belief that it is not wrong, then if it were not perpetuated it would be morally permissible (which is absurd). Back to SSA, the wrongfulness of SSA is explained by it killing a fetal female human.[5]

It follows that SSA is wrong because it is sex-based violence against female human beings in utero. Consequently, since ISA is a sub-set or specific instance of SSA, ISA is also sex-based violence against intersex human beings in utero. Here the problem of criminalizing ISA arises.

2.1.7 The Problem of Criminalizing ISA

ISA cannot be criminalized under the explanation that is given by the critics of IPS (even if it explains in part what is morally wrong with ISA). This is because of an ingenious argument by Bedi (2011). Bedi has argued that “criminalizing sex selective abortions in the way current and pending legislation does amounts to a thought crime. It deems a woman’s bias—punishing her sexist character—not just relevant but sufficient to remove an act from the domain of the non-punishable to the punishable” (2011, 359). Bedi’s argument leaves her reader within a dilemma: either SSA is permitted because thought crimes generally are problematic, or SSA is not permitted and the legal system introduces thought crime laws. This is a problem for those who are against SSA – such as those against a sub-set of SSA i.e. ISA. As Bedi writes: “While the reasons for curtailing sex selective abortions may be quite compelling, we ought to be careful in deploying thought crime laws to achieve that result” (2011, 359). Here is the case for why a criminalization of SSA on the basis of sex-selective motivations amounts to a “thought crime”:

The motivation—here a desire not to have a female child—is sufficient to take the act from the domain of the non-punishable to the punishable. In light of this consider the following two scenarios:

(1) A woman procures an abortion during the early stages of pregnancy, because she cannot afford to take care of a child at this point in her life. The fetus happens to be female.

(2) A woman procures an abortion during the early stages of her pregnancy, because she discovers the fetus is female. She is disposed to thinking that a female child is inferior to a male one.

Again, I assume a jurisdiction where (1) is not punishable. Criminalizing sex selective abortions in the manner that the federal bill outlines would render (2) but not (1) a crime…A woman’s sex related bias in (2) suggests or points to a sexist character trait, an attitude that considers a female child to be less valuable than a male one. A criminal prohibition on sex selective abortions, then, renders this bias sufficient to make her act of abortion a crime (Bedi 2011, 357).

The introduction of thought crime laws is a high cost of condemning SSA, and her paper ends without discussion of how else SSA might be condemned without introducing thought crime laws. I take it for granted here that the introduction of thought crimes into the legal sphere is not a desirable answer to the dilemma. One plausible way out of the dilemma Bedi does not accept, and that is to argue that sex-selection is necessary but not sufficient for the wrongfulness of SSA; sex-selection might make an abortion more wrong than it already is, but the wrongfulness of abortion is act-based and not motive-based e.g. it is primarily because an abortion violates an objective fundamental human right that it is wrong. Bedi lays out a position similar to the one just described:

…a regime that criminalized abortions could treat a sex selective abortion as it does a hate crime: increasing the penalty for a woman who procures an otherwise punishable act on sexist grounds. In that case, a sex selective abortion would be a genuine hate crime. (357, my italics).

However, we need not accept the proposal to reduce SSA to a hate crime, nor must we think only in terms of legalization questions (since our present discussion is a moral discussion); rather, all that is required to get out of the dilemma is to hold that abortion is wrong for reasons other than sex-selection e.g. violation of fundamental human rights, but with the caveat that sex-selection does moral, explanatory work in explaining the wrongfulness of SSA e.g. in the same way that murdering an person because they are old is primarily wrong because it is murder and secondarily wrong because of the age-based discrimination. Of course, Bedi disagrees because she holds that “in the absence of a sex related bias in procuring an abortion, the act of aborting would not be punishable” (357) – but this will be at the cost of not being able to explain the wrongfulness of SSA without resorting to introducing thought crimes into the legal sphere. Now, one might simply reject that there is anything wrong with SSA. The problem is that those against ISA do hold that there is a case of SSA which is wrong: ISA. The ideal scenario would – as Bedi herself says (359) – be a model on which SSA is morally worrisome and does not introduce thought crimes.

Dissent might arise here at this point because of the obvious consequences of my proposal (which is that abortions are wrong for reasons other than, and more fundamental than, the discrimination of sex-selection). The problem is that denying this comes at the cost of being able to explain how SSA – including ISA – should be criminalized without introducing thought crimes. But it is possible that one – like Holmes (2008) – will bite the bullet and not be moved by decriminalizing SSA and consequently ISA because of her desire to maintain a woman’s bodily autonomy and choice. The problem is that this move will not work for two reasons. First, my two earlier arguments (from “mere difference” and the analogy to SSA) showed that if IPS was wrong, then ISA was also wrong. We saw that if IPS’ wrongfulness was sufficient for criminalization, then it would be difficult to explain (to put it mildly) why ISA should not be criminalized as well. Second, if ISA is an egregious human rights violation which harms the preborn intersex child, and moreover harms the already marginalized intersex community, then legalizing ISA comes at high costs which are not clearly proportionate to the value of preserving unrestricted bodily autonomy and reproductive choice.

However, as a final note on unrestricted bodily autonomy and reproductive choice, note that if ISA is wrong as the critics of IPS have identified (see 2.1.4), then there are further implications not explored in this paper but which merit further attention since they cast doubt on the morality of abortions generally – and consequently on unrestricted bodily autonomy and reproductive choice. For example, if ISA is wrong because it is sex-based discrimination against intersex preborn children, then what is being asserted is that (i) there is a preborn human being in utero, (ii) the preborn human being has rights to not be discriminated against and (iii) discrimination against the preborn human being is sufficient to make the abortion morally impermissible. If true, then all abortions which discriminate on the basis of categories (including but not limited to ‘sex’) e.g. age, abilities, size, sex, level of development, environment, etc. are morally impermissible. ISA, by the critics’ premises, is merely one form of discrimination among many others, and are sufficient to cast into doubt the morality of these abortions.

3. Discussion: Application for Moral Theology

3.1 Implications for Moral Theology

It is often perceived that the abortion debate is at a stand-still; however, ISA is a case in point in which the moral and legal problem of abortion and discrimination against those who are intersex interact and collide.[6]

If my thesis is correct then moral theologians – liberal and conservative – thinking and writing on abortion should consider using ISA as a conversation-starter to address the issue of abortion, since it cuts across theological, theoretical and political divides, getting to the heart of the issue of abortion and intersex-based discrimination. However, to avoid generalization, what is meant by “liberal” and “conservative” moral theologians requires explanation. Lofgren explains that while “liberal” and “conservative” are not perfect terms and unfortunately resist nuances, there is a broad, meaningful distinction between the two:

Thus thinkers who argue for an anthropology that leads to a support for contraceptive methods, same-sex unions, abortion rights, ecclesial divorce and remarriage, a plurality of sex/gender alignments, and sex-gender fluidity, or even those thinkers who advocate for one of these with great enthusiasm, are given the label ‘liberal’…those who argue for the impermissibility of contraceptive methods, the reservation of marriage to opposite-sex couples, the value of life from fertilization, the indissolubility of marriage, the coincidence (or at least connection) of sex and gender, and the stability of sex and gender, are labeled ‘conservative’. (Lofgren 2020, 2)

In this methodological division that Lofgren has so aptly articulated, the divide between “liberal” and “conservative” – applied to moral theologians – is short-sighted in the discussion on pertinent moral issues with theological significance. However, ISA is one of the most pressing bridge issues. While this has not been appreciated by moral theologians generally, one notable exception is made.

3.2 One Notable Exception

3.2.1 Cornwall on ISA

Liberal moral theologian Susannah Cornwall at the University of Exeter has spent her career as a constructive theologian writing on – among other topics – sex, gender and sexuality i.e. with a strong focus on intersex persons. In one of her recent articles, in which she argues for an Abrahamic construction of life as a gift from God to promote the well-being of intersex persons, she writes:

Legal recognition of intersex, and especially its discussion alongside torture, sends a strong message about the gravity of the abuse experienced by many people with intersex characteristics to date, including involuntary sterilization and non-consensual genital surgery, and the termination of foetuses with intersex characteristics. (Cornwall 2021, 535, my italics)

Cornwall here identifies the “termination of foetuses with intersex characteristics” (2021, 535) as a form of “abuse experienced by many people with intersex characteristics.” Putting her language slightly differently, the human rights violations of pre-born intersex children have yet to be fully appreciated. While the testimonies of the intersex are beginning to be heard regarding their marginalization and trauma, those who cannot testify to such harm are now being further harmed under the pretence of unrestricted reproductive choice and bodily autonomy. There are three lessons from Cornwall’s recognition of the problem at hand. First, the “liberal” and “conservative” divide, while a meaningful distinction, has caused the discussion to become  short-sighted concerning abortion and intersex rights concerns. Second, it is feasible to be, as Lofgren  put it, “great[ly] enthusias[tic]” (2020, 2) about issues which are more hospitable to a “liberal” theoretical framework, while nonetheless nuancing the position to have agreement within a conservative theoretical framework. Third and finally, we learn from Cornwall (indirectly) that what matters for moral theology are the issues themselves, and that despite differences in methodologies, traditions and divides, there should be common ground where possible.

Despite Cornwall’s novel admission that ISA is a moral problem that directly harms intersex lives, her work leaves open the moral theological work to establish that conclusion, and to explore what follows from it. It is also noteworthy that Cornwall’s approach to intersexuality more generally misunderstands what “intersex” is and consequently what it implies.[7]

In the above section (specifically 2.1.1-7), I have argued on secular grounds i.e. philosophical argumentation without appeal to divine revelation or authority, why ISA is a moral problem far more serious than IPS. However, more needs to be said regarding implications for healthcare, healthcare professionals, families, intersex individuals, et cetera. In lieu of the methodology I have sketched in 1.4, I now turn to encouraging the methodological approach of Fr. Eric Lenhart who, complementing Cornwall, has done significant, instrumental work in the sphere of intersexuality from the perspective of moral theology.

3.2.2 Lenhart’s Methodology Moving Forward

I wish to conclude this brief discussion with a model of discourse for those working on ISA from the perspective of moral theology. The work of Fr. Eric Lenhart (2015; 2016) has been instrumental in the crafting of a pastoral and intellectual response to ethical questions concerning intersex, bypassing theoretical, political and theological divides. Himself rooted in the Catholic intellectual tradition, he approaches intersex by following Urbano Cardinal Navarrete who, as Lenhart reads him, admits that “there are extraordinary cases unanticipated by our norms, customs, and laws. In these cases, the good of both the community and the person should be prudently pursued as the priority. This stance provides a better foundation for practical theology and medical care to support the dignity and autonomy of a person born with an IC [intersex condition] or DSD [difference/disorder of sexual development]” (2015, 458). Lenhart’s methodology proceeds by way of a prudent prioritization of the community and the person, nested within the best empirical and testimonial information available. The result of this is his article “People Born with Intersex Conditions” (2015).

Here is one practical, paradigmatic example of Lenhart’s methodology at work, which I argue is instructive for approaching ISA. Without forgoing moral principles and abandoning orthodox tenants of the Catholic faith, Lenhart instead uses “Catholic theological ethics”, in which “the virtue of prudence” is able “to refocus our efforts on caring for the patient rather than focusing on the sociocultural norms of biological sex” (460). Lenhart here follows Cornwall and others who argue that there are various sociocultural norms of biological sex. This is no small concession: conservative positions hold sex to be a binary biological reality, without appreciating the sociocultural norms surrounding biological sex. Lenhart carefully distinguishes these two theses. He is careful to not deflate the admission of sociocultural norms surrounding sex to the claim that sex is nothing but sociocultural norms (see Rehman 2022; Byrne 2020, for the argument that sex is a binary biological reality). It is here that I think Lenhart and not Cornwall’s approach is ultimately to be commended, since the latter makes this false inference. In his review of Cornwall’s book Intersex, Theology, and The Bible (2015), Lenhart praises most of the book for its contribution to a theology of intersex despite having significant disagreement with it in the area of human sex. He writes that “while intersex conditions make it difficult to determine sex at birth, it may be premature to conclude that sex is not ultimately binary…two other questions should be considered. First, is evolution guiding us toward or away from binary sex?…Second, how do intersex people view themselves?…From our current level of knowledge, might it be more plausible to conclude that people with intersex conditions show that there is more variety within the categories of male and female than to conclude that intersex represent something outside the binary?” (2016, 350). Lenhart, without dogmatically asserting the sex binary, carefully distinguishes between sociocultural norms of sex and the nature of biological sex. Because Cornwall reduces the latter to the former, her moral theology of intersex suffers from an inadequate account of human biological sex, and consequently does not justify the non-binary theological anthropology – and sexual ethics – she has sought to develop in her work.

In sum, Lenhart’s pastoral and intellectual approach which uses virtue as a starting point (e.g. prudence), does not make the mistake of rejecting the sex binary and consequently building a moral theology of intersex predicated upon a false premise. We learn from Lenhart’s methodology that a moral theology of ISA requires both pastoral care and intellectual diligence, and cannot rely on false presuppositions regarding human biological sex. This is why I have argued for the wrongfulness of ISA on purely secular grounds before turning to the development of a moral theology of ISA. By giving the former the pastoral and intellectual diligence it deserves, we who are working on ISA are in a better position to do justice to the issue at hand and promote the welfare of all intersex lives.

4. Conclusion

To conclude, it was found that there was a strong argument that if IPS is wrong, then ISA is wrong; if ISA is wrong, then some abortions are morally impermissible. This means that if IPS is wrong, then some abortions are morally impermissible and should be legally restricted. This generated a further dilemma. ISA, like SSA, cannot be legally indicted on the ground of a thought crime e.g. an action becomes a thought crime when some action x moves from the non-punishable to the punishable in virtue of their motive alone. It was argued that the only way to legally indict ISA without invoking thought crimes is to explain the wrongfulness of ISA in terms of violating the right to life of pre-born children, and not primarily on sex-based discriminatory grounds. Consequently, the argument is abbreviated: If IPS is wrong, ISA is wrong; however, if ISA is wrong and should be legally punishable, it requires that ISA, like all other abortions, are morally impermissible because they commit a human rights violation. If my hypothesis was correct, then moral theologians – from conservative or liberal angles – should take more seriously, as they have begun to, the moral and legal problem of ISA. While Cornwall’s indictment of ISA is commendable, Lenhart’s methodology should be adopted moving forward in the development of a moral theology of ISA.

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Notes

[1] Of course, one might reject that the child in the womb is in fact a human being with rights; however, it is very difficult to understand, if this is true, why SSA would be wrong. If SSA is wrong, then it is plausibly explained (at least in part) by a right to not be discriminated against on the basis of sex. In other words, one might deny this claim at the cost of not being able to morally indict SSA.

[2] Gedge uses this style of argument in her “Genetics, Disability and Symbolic Harm” (2008) where she argues that certain reproductive genetic practices e.g. pre-implantation genetic diagnosis (PGD) has within itself a “symbolism” which “sends a message” to (or which is able to) harm a group.

[3] An objection here might be that this requires the assumption that both have rights and/or equivalent moral status. The problem is that should rights/moral status be denied by the fetal female human being, Kaczor’s point still holds; there is a difficulty in explaining, if we can kill a fetal female human being because they are female, what reason we have for respecting the rights of adult female human beings (without also introducing age-based discrimination).

[4] I once attended a seminar on the importance of consent in undergraduate universities, in which a video played with various individuals sharing why they personally thought that sexual assault was wrong. Of course, one key reason was the violation of consent; however, one man said what I wrote above: “Sexual assault is wrong because it is illegal.”

[5] Note too the moral irrelevance of “fetal”: fetus is from the Latin “young one, offspring” and is an age-ranged term, not a species-specific term e.g., there are dolphin feti. Losing moral status in virtue of age alone is formally age-based discrimination.

[6] One caveat is that SSA could have served this bridge role as well; however, ISA is peculiar in that it the discrimination taking place is more complicated e.g. it is sex-based discrimination and potentially ability-based discrimination. Given that sex-based equality, intersex justice and disability rights activism have dominated public consciousness, ISA – in including all of these issues – is ripe as a conversation-starter which spans theoretical divides.

[7] For such an argument against her sexual polymorphism, see Rehman (2022) and Byrne (2020). For the argument that a plausible moral theology of intersex is consistent with sex binarism (and not contradicted by it), and consequently sex binarism theological anthropologies and the sexual ethics predicated upon them, see Lofgren (2020).

Cite this article

Rehman, Rashad. 2022. “Which Moral Theologians Should Care About Intersex-Selective Abortion?” Theological Puzzles (Issue 10). https://www.theo-puzzles.ac.uk/2022/06/29/rehman2/. 

Contact the author

Rashad Rehman
Email: [email protected]

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