Reverse Legal Transplants

Abstract

In early modern history, laws often moved in one direction—from imperial nations to their colonies. In the contemporary era, we would expect legal solutions to move in many directions, including from economically weaker countries (“Global South” countries) to economically more developed ones (“Global North” countries). The legal transplant literature, however, documents relatively few transplants from Global South countries to Global North countries. There is also little critical analysis in the literature about why there is a paucity of “reverse legal transplants”—transplants from Global South countries to Global North countries.

This Article presents a case study of a reverse legal transplant—the movement of restrictions on abortion from India to the United States. U.S. statutes restricting women from terminating their pregnancies on the basis of the predicted sex of the fetus have been enacted in nine states and introduced in over half of all state legislatures and the U.S. Congress. The U.S. Court of Appeals for the Seventh Circuit found those prohibitions to be unconstitutional. The U.S. Supreme Court suggested that it would consider adjudicating the constitutionality of the statutes after more appeals courts ruled on them. Many lawyers, advocates, and others who oppose restrictions on abortion have failed to analyze sex-selective abortion statutes correctly. Instead of a human rights approach that proposes universal legal solutions, a comparative methodology is more appropriate because it leaves room for distinct legal solutions across jurisdictions.

This Article fills several gaps in the transplant literature. First, through an analysis of the literature, it finds that scholars have documented few reverse legal transplants. Second, it exposes the lack of rigor around the concept of transplants and attempts to create relevant definitional boundaries for it. This analysis informs the methodology of the literature review and allows us to identify the case study as a reverse legal transplant. Third, this Article contributes to the refinement of comparative methodologies to evaluate legal transplants. Articles evaluating transplants have measured success after the transplantation has already occurred. By limiting their analysis to whether a transplant was properly implemented in the reception country, authors have neglected to examine whether the law was appropriate to transplant in the first place. This Article proposes a multi-directional and contextual approach that can be useful in identifying whether a specific law should a priori be transplanted or not.

Keywords: legal transplant literature, legal transplant, abortion, predicted sex, U.S. Court of Appeals, U.S. Supreme Court, sex-selective abortion, human rights, universal legal solution, transplant literature