Assessing responsive state action in the conflict between disability rights and reproductive choice

The emergence of prenatal screening and disability-selective abortions have presented a double-edged sword within the field of human rights. Whilst arguments could be raised that they amplify reproductive choice, parallel concerns have surfaced with regard to their effects on persons with disabilities. Accordingly, my project examines the conflict between the rights of persons with disabilities and women's reproductive choice, attempting to strike a balance between the two in terms of disability-selective abortions. It argues that an analysis based on the vulnerability approach (Fineman, 2008) and relationality (Harding, 2017; Nedelsky, 2011) is best suited to address this issue, by assessing the extent to which responsive state action towards disabled people and other relational factors affect reproductive choice.

The expressivist argument (Asch, 1999), claims that disability-selective abortions express discriminatory attitudes about disabled people. One of the primary concerns for disabled people is that the promotion of disability-selective abortions may heighten the stigma surrounding them, on the grounds that their existence represents a liability to society (Steinbach, 2016). They may also increase feelings of being discriminated against (Nuffield Council on Bioethics Report on the Views of People with Down Syndrome on NIPT, 2017). However, complete elimination of prenatal screening and the right to abort on grounds of genetic abnormalities would lead to a deprivation of the right to access safe abortions, thereby inhibiting reproductive choice. This gives rise to a challenging dilemma: how do we safeguard the rights of persons with disabilities, whilst securing reproductive choice for women?

Using Martha Fineman's Vulnerability Theory (Fineman, 2008) my project argues that, in the context of disability-selective abortions, the conflict of rights dilemma could be tied to the presence of a responsive state. Whilst the term 'vulnerability' has commonly been associated with victimhood and dependency, Fineman argues that the term can actually be used to describe a universal, inevitable, and enduring aspect of the human condition. Consequently, vulnerability could be used as a powerful conceptual tool to further define an obligation for the state to ensure a richer guarantee of equality.

Accordingly, this project seeks to assess whether state responses towards disabled people are ableist, and whether there is a lack of state support for persons with disabilities. It will analyze how this contributes to discourse that termination is the only viable choice when a fetus tests positive for a genetic abnormality. This absence of a 'responsive state' may consequently 'nudge' (Thaler and Sunstein, 2008) pregnant mothers towards termination, which in turn inhibits not only the rights of disabled individuals, but also women's reproductive choice. Adopting a combination of documentary and doctrinal analysis of relevant laws and policies, as well as qualitative interview research, I will further examine the myriad of social, legal, and relational factors that influence a decision to terminate when a fetus tests positive for a genetic abnormality.

Through this approach, I hope to adequately answer the question of how to marry the vitality of addressing the risk posed by disability-selective abortions to the disabled community, with the need to protect the right to reproductive choice.