Common Ground of Feminism and Cultural Relativism in Human Rights Discourse: The Case of Sex-determination Test in India
Recently, during the world conferences organized by United Nations in Vienna, Cairo and Beijing, the human rights discourse has taken different forms and have created bitter differences among different camps. In these international conferences, feminists claim victory over cultural relativists as feminists were able to reaffirm women's human rights. (1) Feminists and cultural relativists are the two groups which are highly critical of human rights. Sometimes, feminists and cultural relativists have taken two diametrically opposite sides with regard to their criticisms of human rights systems creating a division rather than an unification. In this paper, I intend to show that there is room for common ground between the feminists and cultural relativists though there are some differences between them and there is a need for the cooperation of feminists and cultural relativists on the basis of this common ground not only at the international level but also in the context of India. To achieve this objective, first, I make a general analysis of the views of feminists and cultural relativists in the context of human rights. Second, I explain briefly the similarities and differences between these two views. Third, I analyze the issue of sex-determination test in India as my case study, among many other human rights issues, to demonstrate that if cultural relativists and feminists do not work cooperatively within this common ground, it will not be possible to apply the reproductive technology of amniocentesis in a progressive way rather than in a regressive way as it is now which is creating greater discrimination against women. In the case of India, having laws are not sufficient if they cannot be enforced due to cultural bias. Along with laws, both feminists, promoting the concept of including women's rights within human rights system and genuine cultural relativists, who believe that culture and tradition cannot be outside the scope of human rights discourse, should work together and use technology in a progressive way.
The philosophers who defend moral relativism believe that moral right or wrong, i.e., being good or bad, just or unjust, virtuous or vicious are always relative to a moral framework. So, what is morally right within one moral framework might not be right within another moral framework. And no one moral framework is objectively the true framework. With regard to human rights, moral relativists who are cultural relativists believe that human rights is the outcome of Western culture. Therefore, the so-called "universal human rights" address the needs and aspirations of western culture. Some cultural relativists argue that human rights are not compatible with the non-western culture. In non-western cultures which is collective or community rights oriented, individual rights are not given much importance unlike western culture. Many non-westerners argue that because their culture is very different from western culture, westerners should not impose their values and standards on a non-westerner. In general, then, cultural relativists reject human rights. On one extreme is the view that human rights are incompatible with the non-western culture. This kind of radical view is not followed to a very great extent. Often, conservative Muslim circles who tend to advocate this kind of radical view do not reject human rights altogether. Instead, they advocate an alternative set of human rights based on Islamic sources. Most cultural relativists either reject specific rights or reject the specific content or interpretation of those rights. For example, a culture might object to freedom of religion. Some cultural relativists might accept a right with all its components and with its general interpretation, but reject the classification of a particular cultural practice as a violation of that right. To take another example, in a culture where abortion of female fetuses in the third trimester of pregnancy is practiced, the prohibition of torture and cruel and inhuman or degrading treatment, prohibited under Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights may be completely accepted while the classification of abortion of female fetuses as such treatment is rejected. (2) This shows that these different versions of cultural relativism do not exclude non-western cultures from the human rights system. Many cultural relativists argue that the human rights system needs to be transformed by placing emphasis on communal interests rather than individual rights.
The issue of sex determination tests in India can be approached by a moral relativist as being relative to the moral framework of India. So, though it is not right from the moral framework of the western cultures, yet it might be considered as right in the context of India. It is often argued that the abortion of female fetuses is the result of the cultural background of India. It is also based on economic factors from the point of view of the women and their family who decide to have an abortion when they find through amniocentesis that the fetus is female. This is an example of a case where modern medical technology of amniocentesis is used not as a progressive method but as a regressive method. I agree with those who argue that it is essential to understand the cultural differences to understand why different cultures have different accepted practices. But at the same time, one needs to consider if the culture or tradition is improving the condition of a powerless group, namely, women in this case.
Feminists argue that women should be included in the human rights protection system. They criticize that human rights proponents look at the interest of the dominant male sex to the exclusion of the female sex. Declaration of human rights are framed in the language of men and reflect men's needs and aspirations. All the strands of feminism aim at the inclusion of women in the human rights dialogue though the ways they achieve this aim can vary. For example, liberal feminists (3) are concerned with equal rights for both men and women. So, in general, liberal feminists write about ways in which women's voice can be given equal importance to men's voice. Some liberal feminists bring out those areas where women's rights have been neglected under the human rights protection system. Others focus on the improvement of the present institutional structure which will allow the enforcement of the human rights of women. Other feminists highlight the differences between men and women and propose different measures for including the female difference approach to the human rights system. One of the major difference between men and women is the biological difference. As women are comparatively weaker physically than men, women are more vulnerable to acts of violence, more specifically to acts of sexual violence. Due to her childbearing capabilities, she takes the role of child-rearer which places more responsibilities on her at home. Carol Gilligan in her book In a Different Voice and others have argued that woman's psychological structure is also different from man's. Some cultural feminists call for the reorientation of human rights towards the concrete. They do not claim that the existing human rights framework should be rejected. But on the other hand these feminists advocate the revision of existing human rights framework by considering woman's differences. They propose that reproductive rights, sexual autonomy rights and similar other rights need to be added to the existing framework. The dichotomy between the public and the private ought to be eliminated because women's oppression takes place in the private context. The public or political sphere is viewed as male and the socioeconomic sphere which is related to women's advancement is not viewed on the same level. Feminists are interested in taking women's actual experiences within their full contexts.
There are certain similarities between the claims of feminism and cultural relativism though there are differences also. First, both believe that the liberal concept of human rights have been developed by the dominant group and they exclude the feminist and cultural relativistic perspective. Feminists and cultural relativists advocate different strategies. Feminists accuse human rights discourse as not being universal as it does not include concerns of women. Cultural relativists, on the other hand, rejects the universality of human rights as they exclude the perspective of non-Western cultures.
Second, another similarity between feminists and cultural relativists is that both believe that social and economic rights should be viewed on the same level and given equal importance to civil and political rights. The concrete needs of women and non-Western people must be given importance and not view people or individuals as abstractions. (4)
Third, both feminists and cultural relativists argue that human rights system must be changed in a way which incorporates gender and culture. The word "human rights" should include the rights of all human beings irrespective of culture and gender. To achieve this goal, human rights must not be gender blind or culture blind. Some feminists (5) state that one needs to be careful so that gender and culture blindness do not lead us into the trap of essentialism or absolutism as both feminists and cultural relativists concentrate on one specificity, of gender in the case of feminists and culture in the case of cultural relativists. Women's "different voice" includes many different voices class, culture, race, sexual orientation etc. (6)
Last, another common ground of feminists and cultural relativists is that both focus on a group, feminists on the group of women and cultural relativists on cultural groups rather than on abstract individuals. (7) Cultural relativists view this in a positive way by recognizing the importance of collective rights in the human rights discourse, whereas feminists view it negatively by pointing out how a group is the target of oppression and are critical about this kind of oppression of a group.
The comparison between the feminist and cultural relativistic critiques of human rights, as analyzed in the previous section shows that the conflict between these two groups is not as great as it seems at first sight. In this section, by analyzing the specific issue of sex-determination test in India, I would demonstrate the need for both groups of feminists and cultural relativists to join hand in achieving their similar goals not only at the international level as shown above but also in the context of India where tradition plays a significant role in the lives of people .
In Indian culture, tradition plays a major role in different aspects of life. I am specifically interested in the issue of sex-determination test by women through amniocentesis to find out if the fetus is female or not. Both women and men are culturally oriented to believe that male fetuses are preferable to female as males can continue the family line and will be economically beneficial to the family whereas females are economic burden because it is the parents' responsibility to marry their daughters and during marriage bride's parents are expected to provide the groom's family with dowry which can take monetary form or commodities like jewelry, cars and other varieties of material goods. So if a mother gives birth to several female children, later on during their marriage, the family will be required to pay dowry, in many cases, beyond their means. So families calculate that it costs them much less if they abort the female fetus after they find out through amniocentesis that the fetus is female. Legalized abortion and gender preferences together put female fetuses at great risk. As has been pointed out by many scholars, (8) there are two causes of this problem of aborting of female fetuses, namely, cultural conditioning and economics.
The practice of aborting female fetuses detected through amniocentesis can be considered as one of the major reasons why the sex ratio of female to male is declining in India. Cultural conditioning of determining women's social worth by the number of male children they bear is the primary cause of this adverse sex ratio. In 1901, the sex ratio was 972 females per 1000 males. Sex ratios were 930, 934 and 929 per 1000 males in 1971, 1981, 1991 respectively. This statistics demonstrates a steady decline of females throughout the 20th century. Adverse sex ratio has far reaching negative implications for Indian society as a whole and also for women, in particular. For the society as a whole, with the decrease of females, it creates socio-cultural perversion of natural or biological requirement. In any society, biological reproduction requires more women than men as a woman typically bears only one child at a time and men can impregnate many women. It is the woman who contributes the most to the continuation of species as well as for the survival of the child by carrying the baby in the womb, providing the fetus with the tissues and nutrients from her own body and breastfeeding after birth. For the women, sex-determination test through amniocentesis has been used as an instrument of discrimination against the female fetus. The abuse of the technology of amniocentesis has made the situation of women worse in relation to sexual equality. There is no doubt that this is a violation of women's rights.
Some people argue that the problem of overpopulation can be resolved, to some extent, by aborting female fetuses through sex-determination tests. The rate of increase of population in India has not declined since 1911. (9) So, the intended effect of slowing the rate of the growth of population has not been achieved. In addition, there are other morally preferable ways of reducing the overpopulation problem with extensive program of social change, improved medical care by reducing infant and child mortality, governmental funded social security for the elderly, providing educational opportunities for girls and women, delaying the age of marriage, educating women about family planning measures, to name a few in general, a move toward more equal social, legal and economic status for women.
In 1988, the state of Maharashtra has passed an act called the "Maharashtra Regulation of use of Pre-natal Diagnostic Techniques Act" to prevent the misuse of amniocentesis. (10) Under this act, licensed gynecologists can perform activities relating to pre-natal diagnostic techniques with the help of procedures such as amniocentesis, chronic villi sampling or any other pre-natal diagnostic technique only under the condition that the woman is above 35 years, has a history of two or more abortions, there is a history of exposure to potentially teratogenic drugs, radiation, infection or hazardous chemicals, there is a family history of mental retardation or physical deformities.
This act is definitely an achievement but there are loopholes to this act which allow doctors to perform amniocentesis at clinics and hospitals on women who supposedly make a choice to abort female fetuses. I believe that in a society where women are socially and culturally conditioned to accept that their social worth is dependent on being able to bear a male child, woman's choice is greatly influenced by fear. The so-called choices are the result of powerlessness and oppression of women.
Women's movements in India have moved beyond the social and ethical realm to the political level but feminists are faced with tremendous obstacles due to religious, traditional and cultural orientation of the Indian society. As pointed out in the previous section, laws are not sufficient if it cannot be enforced. I believe that in the case of India, if cultural relativists join hands with the feminists in the human rights front by asserting the rights of women, on the one hand, and on the other hand, trying to change that aspect of culture which violates a certain group's right without completely giving up the tradition and culture which has kept India united in the face of diversity of caste, custom, religion and ethnic background, then laws can be enforced to improve the status of women.
In conclusion, by analyzing the conflict between feminists and cultural relativists within the human rights discourse at the international level and explaining the similarities and differences between the two, I have showed that there is a common ground between these two currents. Then, I have taken the case study of sex-determination test of India to prove that the common ground of feminism and cultural relativism can be applied at the national level of India in solving the problems of aborting female fetus and in a larger scale balancing the female to male ratio.
(1) Analysis of the UN conferences is beyond the scope of this paper. For a good general analysis of the UN world conferences, see Eva Brems, "Enemies or Allies? Feminism and Cultural Relativism as Dissident Voices in Human Rights Discourse," Human Rights Quarterly, Vol. 19 number 1 (1997) 150-154.
(2) See International Covenant and Political Rights, art.5, supra note 3.
(3) See Mary Becker et al., Cases and Materials on Feminist Jurisprudence: Taking Women Seriously, 17-26 (1994).
(4) V. Spike Peterson, "Whose Rights? A Critique of the "Givens" in Human Rights Discourse," Alternatives, Vol. 15 (1990), supra note 111.
(5) See Claude Ake, "The African Context of Human Rights," Africa Today, Vol. 32, number 5 (1987)
(6) Hilary Charlesworth, "What are Women's International Human Rights"?, Human Rights of Women, supra note 25, at 617.
(7) See Shashi Tharoo, "The Universality of Human Rights and their Relevance to Developing Countries," Nordic Journal of International Law, Vol. 142 (1990
(8) See Radhika Balakrishnan, "The Social Context of Sex Selection and the Politics of Abortion in India," Power and Decision: The Social Control of Reproduction, by Gita Sen and Rachel C. Snow, 266-283; Amartya Sen, "The Economics of Life and Death," Scientific American, (May), 40-47.
(9) See the growth of population chart in Amulya Ratna Nanda, Census of India, 1991, Series-1, Registrar General & Census Commisioner, India, Statement 2, 21.
(10) Bombay Case Reporter, 20:3, (1988) 2-7.