Sex Selection for Non-medical Reasons
Sex Selection for Non-medical Reasons
Sex selection for medical reasons is widely regarded as acceptable because it is aimed at avoiding health risks rather than at providing the prospective parents with a child of a specific sex. However, the way in which this distinction is usually drawn seems too strict.
As acknowledged in the British HFE Act, sex selection is not 'medical' only when aimed at avoiding sex-linked diseases such as Duchenne muscular dystrophy or haemophilia, but also when chosen in the light of a risk of transmitting a non-Mendelian disorder with an unequal sex incidence. Although in such cases sex selection cannot exclude the birth of a child with the relevant disorder, it can reduce the risk of an affected child. It can of course be asked whether that is enough to justify a sex-selective procedure. This will depend on the seriousness of the disorder and the amount of risk reduction that can be achieved, but also on the burdens and costs related to the type of procedure (Pennings, 2002). If the potential health benefits are small, IVF/PGD may be disproportional, whereas this need not be the case when sperm sorting with IUI can be chosen. But the point here is that whatever the proportionality of the procedure, the motive would still be health related, rather than based on a preference for a child of a specific sex for its own sake.
A further category not accounted for in the legal distinction between medical and non-medical reasons is sex selection for reasons of transgenerational health. For instance, a couple of which the male partner is a haemophilia patient will not have affected children themselves, but because any daughters will be (healthy) carriers, their grandchildren are potentially at risk. In such cases, sex selection aimed at the birth of a boy would serve the double aim of protecting one's children from difficult reproductive decision-making and avoiding the transmission of the mutation to a possible third generation (De Wert, 2005). Another example is couples at risk of transmitting a mitochondrial DNA disorder. Whereas this risk can in certain cases be minimized for the intended child by only transferring embryos with a low mutant load, the possibility that the mutant load will rise again to a disease-causing level in a possible third generation can be excluded by ensuring that the couple has a boy (Bredenoord et al., 2010). Although not medical in the strict sense of avoiding or reducing health risks in the child to be conceived, the motive for sex selection in these 'transgenerational risk' cases would still be a concern for health. Here again, the risk to be avoided may only be small. After all, it is not certain that the next generation will want to have children, and if so, they may take preventive measures themselves. But whether a transgenerational risk is significant enough for justifying sex selection is again a question about the proportionality of the procedure, not about the acceptability of the motive. As long as sex selection is motivated by a concern for health (in this case: reproductive health), there is no reason for questioning its acceptability in principle.
A safe, cheap and fully reliable method for sex-selective insemination would be the morally preferred method for sex selection both for medical and non-medical reasons. Although the proven effectiveness of Microsort® means that preconception sex selection is no longer a hypothetical concept, this technology still has limitations that are relevant from a moral point of view. First, the still existing safety concerns raise the question whether the technology can responsibly be offered to prospective parents. Given the debate about the need for the field to proceed with greater care when introducing new reproductive technologies into clinical practice, one might argue that as long as safety concerns cannot be fully answered, flow cytometry may only be used for medical reasons, more specifically in cases where preselection can significantly add to the effectiveness of PGD aimed at avoiding the birth of a child with a serious sex-linked disease (HFEA, 2003). However, this seems too strict, given reassuring data not only from 760 children in the Microsort® trial, but also from the large scale use of flow cytometry in farm animals over more than 20 years. Centres offering the technology should commit themselves to careful monitoring and follow-up in order to provide data for assessing the longer term safety of the technology. As part of informed consent, patients (and non-patient users) should be clearly informed that safety data are still limited and that flow cytometry is not yet an established technology.
A second limitation is the imperfect reliability of the technique. In 8% of the cases where selection is for a girl, a boy will be born, and 16% of those who use the technology to have a boy, will have a girl. This need not be a problem when the technique is used as a preselection tool in the context of a medical procedure, but otherwise there is a chance of failure. If the aim is to avoid or reduce health risks, a less than complete reliability may well be acceptable, provided this does not entail a high risk of serious harm (Pennings et al., 2007). If sperm sorting were to be used for non-medical reasons, a specific concern is that a failure may have adverse consequences for the welfare of children born to parents who have gone to great lengths to have a child of the other sex. Clearly, this is an important aspect that centres offering this technology would have to address as part of pretreatment implications counselling. For prospective parents unable to cope in a responsible way with technology failure, IVF/PGD would be the better choice of method in this respect.
Although a reliable sex selection technology, PGD is burdensome, costly and may raise ethical concerns related to the use of embryos. Because of these material and immaterial costs, IVF/PGD is, in many countries, only available for parents at risk of transmitting a serious genetic disease, which excludes its use for securing a parental sex preference. Even so, professionals may still be confronted with requests for 'additional sex selection' from prospective parents with a medical indication for IVF/PGD. As indicated, developments in the context of PGS may provide wider occasion for such parental requests. Ethically, this is a different situation than where 'social sexing' would be the reason for doing IVF/PGD (ASRM, 1999). As no extra medical procedures are needed, there can at least be debate about why it would be wrong to fulfil such requests. However, in countries with legislation banning sex selection, the question arises whether doctors performing PGD or PGS for medical reasons are legally allowed to do so. This will depend on the precise formulation of the relevant law in each country. Even if additional sex selection (not involving any extra procedures or use of techniques) is not against the letter of the law, it may still violate its spirit. A practical solution would be to leave the selection of the embryos for transfer to a professional who is not aware of the couple's preference.
Sex selection for non-medical reasons through prenatal diagnosis followed by abortion in case of a fetus of the 'wrong' sex is widely regarded as morally problematic, precisely because it entails a termination of pregnancy. This is indeed the method most often used in countries where sex selection has led to a distorted sex ratio. Attempts to forbid the use of prenatal diagnosis and abortion for sex selection (other than for medical reasons) have had the adverse effect of making safe medical abortion less easily available for women who need such procedures for whatever reason (WHO, 2011). In Western countries, abortion does not seem to be widely used as a means of sex selection, reflecting the lack of a strong sex preference. But as with the new technology of NIPT, information about fetal sex can be obtained in a risk-free manner in the early stages of pregnancy; this would also allow sex-selective abortion to be performed much earlier. And since many persons regard early abortions less problematic than later ones, the advent of NIPT may make sex-selective abortion a more acceptable method for those who would currently not contemplate an abortion just for sex selection.
The categorical prohibition of sex selection for non-medical reasons as adopted in many Western countries has been described 'as a surrogate campaign to eliminate sexist discrimination' (Dickens et al., 2005). Until now, this legislation has indeed largely been of symbolic value, as there was no preconception method of proven effectiveness, and as the prohibition of social sexing through PGD does not add anything to regulations that in many countries already bind the use of this technology to strictly medical indications. As a result of the developments described in this document, this may be subject to change.
First, flow cytometry is now applicable with IUI such that those who want to use a preconception method for choosing the sex of their (next) child are effectively deprived of what for them may be a worthwhile option. As for those who would want to use it for this purpose, this method is currently only available in Mexico and North Cyprus, the prohibition of sex selection may add to the growing stream of those seeking reproductive treatment abroad.
Secondly, in the scenario where new approaches currently developed for PGS would lead to such screening becoming a routine part of all IVF treatment, this will provide many IVF patients with the option of asking the doctor to preferentially transfer a female or male embryo in cases where the choice is not fully determined by medical criteria. Assuming that the legislators have meant to also forbid additional sex selection, this is a further area where the ban may lose its symbolic nature and come to deprive people of a reproductive option that they would want to pursue.
At the same time, the advent of NIPT as a safe method for reliable sex determination in the early stages of pregnancy may provide those who want to select the sex of their next child with an easy alternative on which the law has no grip. As, in most countries, the ban on sex selection applies only in the context of assisted reproduction, it does not specify anything about sex-selective abortion. Pointing to this legislative lacuna, the recent Council of Europe reports on sex selection calls for additional legal measures to close this gap (Council of Europe, 2011). However, that may not be easy, as it might readily interfere with women's rights to ask for an abortion on 'social grounds'. One option that has been proposed is the withholding of test results that would provide information about fetal sex, at least for so long as an abortion would still be legally possible. However, both ethically and (in many countries also) legally, this would be difficult to maintain as the prospective parents would have a right to this information. Moreover, it is not morally acceptable to systematically treat pregnant women as suspects in this regard.
Specific Ethical Considerations
The Distinction Between Medical and Non-medical Reasons
Sex selection for medical reasons is widely regarded as acceptable because it is aimed at avoiding health risks rather than at providing the prospective parents with a child of a specific sex. However, the way in which this distinction is usually drawn seems too strict.
As acknowledged in the British HFE Act, sex selection is not 'medical' only when aimed at avoiding sex-linked diseases such as Duchenne muscular dystrophy or haemophilia, but also when chosen in the light of a risk of transmitting a non-Mendelian disorder with an unequal sex incidence. Although in such cases sex selection cannot exclude the birth of a child with the relevant disorder, it can reduce the risk of an affected child. It can of course be asked whether that is enough to justify a sex-selective procedure. This will depend on the seriousness of the disorder and the amount of risk reduction that can be achieved, but also on the burdens and costs related to the type of procedure (Pennings, 2002). If the potential health benefits are small, IVF/PGD may be disproportional, whereas this need not be the case when sperm sorting with IUI can be chosen. But the point here is that whatever the proportionality of the procedure, the motive would still be health related, rather than based on a preference for a child of a specific sex for its own sake.
A further category not accounted for in the legal distinction between medical and non-medical reasons is sex selection for reasons of transgenerational health. For instance, a couple of which the male partner is a haemophilia patient will not have affected children themselves, but because any daughters will be (healthy) carriers, their grandchildren are potentially at risk. In such cases, sex selection aimed at the birth of a boy would serve the double aim of protecting one's children from difficult reproductive decision-making and avoiding the transmission of the mutation to a possible third generation (De Wert, 2005). Another example is couples at risk of transmitting a mitochondrial DNA disorder. Whereas this risk can in certain cases be minimized for the intended child by only transferring embryos with a low mutant load, the possibility that the mutant load will rise again to a disease-causing level in a possible third generation can be excluded by ensuring that the couple has a boy (Bredenoord et al., 2010). Although not medical in the strict sense of avoiding or reducing health risks in the child to be conceived, the motive for sex selection in these 'transgenerational risk' cases would still be a concern for health. Here again, the risk to be avoided may only be small. After all, it is not certain that the next generation will want to have children, and if so, they may take preventive measures themselves. But whether a transgenerational risk is significant enough for justifying sex selection is again a question about the proportionality of the procedure, not about the acceptability of the motive. As long as sex selection is motivated by a concern for health (in this case: reproductive health), there is no reason for questioning its acceptability in principle.
Ethical Aspects of Specific Methods for Sex Selection
A safe, cheap and fully reliable method for sex-selective insemination would be the morally preferred method for sex selection both for medical and non-medical reasons. Although the proven effectiveness of Microsort® means that preconception sex selection is no longer a hypothetical concept, this technology still has limitations that are relevant from a moral point of view. First, the still existing safety concerns raise the question whether the technology can responsibly be offered to prospective parents. Given the debate about the need for the field to proceed with greater care when introducing new reproductive technologies into clinical practice, one might argue that as long as safety concerns cannot be fully answered, flow cytometry may only be used for medical reasons, more specifically in cases where preselection can significantly add to the effectiveness of PGD aimed at avoiding the birth of a child with a serious sex-linked disease (HFEA, 2003). However, this seems too strict, given reassuring data not only from 760 children in the Microsort® trial, but also from the large scale use of flow cytometry in farm animals over more than 20 years. Centres offering the technology should commit themselves to careful monitoring and follow-up in order to provide data for assessing the longer term safety of the technology. As part of informed consent, patients (and non-patient users) should be clearly informed that safety data are still limited and that flow cytometry is not yet an established technology.
A second limitation is the imperfect reliability of the technique. In 8% of the cases where selection is for a girl, a boy will be born, and 16% of those who use the technology to have a boy, will have a girl. This need not be a problem when the technique is used as a preselection tool in the context of a medical procedure, but otherwise there is a chance of failure. If the aim is to avoid or reduce health risks, a less than complete reliability may well be acceptable, provided this does not entail a high risk of serious harm (Pennings et al., 2007). If sperm sorting were to be used for non-medical reasons, a specific concern is that a failure may have adverse consequences for the welfare of children born to parents who have gone to great lengths to have a child of the other sex. Clearly, this is an important aspect that centres offering this technology would have to address as part of pretreatment implications counselling. For prospective parents unable to cope in a responsible way with technology failure, IVF/PGD would be the better choice of method in this respect.
Although a reliable sex selection technology, PGD is burdensome, costly and may raise ethical concerns related to the use of embryos. Because of these material and immaterial costs, IVF/PGD is, in many countries, only available for parents at risk of transmitting a serious genetic disease, which excludes its use for securing a parental sex preference. Even so, professionals may still be confronted with requests for 'additional sex selection' from prospective parents with a medical indication for IVF/PGD. As indicated, developments in the context of PGS may provide wider occasion for such parental requests. Ethically, this is a different situation than where 'social sexing' would be the reason for doing IVF/PGD (ASRM, 1999). As no extra medical procedures are needed, there can at least be debate about why it would be wrong to fulfil such requests. However, in countries with legislation banning sex selection, the question arises whether doctors performing PGD or PGS for medical reasons are legally allowed to do so. This will depend on the precise formulation of the relevant law in each country. Even if additional sex selection (not involving any extra procedures or use of techniques) is not against the letter of the law, it may still violate its spirit. A practical solution would be to leave the selection of the embryos for transfer to a professional who is not aware of the couple's preference.
Sex selection for non-medical reasons through prenatal diagnosis followed by abortion in case of a fetus of the 'wrong' sex is widely regarded as morally problematic, precisely because it entails a termination of pregnancy. This is indeed the method most often used in countries where sex selection has led to a distorted sex ratio. Attempts to forbid the use of prenatal diagnosis and abortion for sex selection (other than for medical reasons) have had the adverse effect of making safe medical abortion less easily available for women who need such procedures for whatever reason (WHO, 2011). In Western countries, abortion does not seem to be widely used as a means of sex selection, reflecting the lack of a strong sex preference. But as with the new technology of NIPT, information about fetal sex can be obtained in a risk-free manner in the early stages of pregnancy; this would also allow sex-selective abortion to be performed much earlier. And since many persons regard early abortions less problematic than later ones, the advent of NIPT may make sex-selective abortion a more acceptable method for those who would currently not contemplate an abortion just for sex selection.
Beyond Symbolic Legislation
The categorical prohibition of sex selection for non-medical reasons as adopted in many Western countries has been described 'as a surrogate campaign to eliminate sexist discrimination' (Dickens et al., 2005). Until now, this legislation has indeed largely been of symbolic value, as there was no preconception method of proven effectiveness, and as the prohibition of social sexing through PGD does not add anything to regulations that in many countries already bind the use of this technology to strictly medical indications. As a result of the developments described in this document, this may be subject to change.
First, flow cytometry is now applicable with IUI such that those who want to use a preconception method for choosing the sex of their (next) child are effectively deprived of what for them may be a worthwhile option. As for those who would want to use it for this purpose, this method is currently only available in Mexico and North Cyprus, the prohibition of sex selection may add to the growing stream of those seeking reproductive treatment abroad.
Secondly, in the scenario where new approaches currently developed for PGS would lead to such screening becoming a routine part of all IVF treatment, this will provide many IVF patients with the option of asking the doctor to preferentially transfer a female or male embryo in cases where the choice is not fully determined by medical criteria. Assuming that the legislators have meant to also forbid additional sex selection, this is a further area where the ban may lose its symbolic nature and come to deprive people of a reproductive option that they would want to pursue.
At the same time, the advent of NIPT as a safe method for reliable sex determination in the early stages of pregnancy may provide those who want to select the sex of their next child with an easy alternative on which the law has no grip. As, in most countries, the ban on sex selection applies only in the context of assisted reproduction, it does not specify anything about sex-selective abortion. Pointing to this legislative lacuna, the recent Council of Europe reports on sex selection calls for additional legal measures to close this gap (Council of Europe, 2011). However, that may not be easy, as it might readily interfere with women's rights to ask for an abortion on 'social grounds'. One option that has been proposed is the withholding of test results that would provide information about fetal sex, at least for so long as an abortion would still be legally possible. However, both ethically and (in many countries also) legally, this would be difficult to maintain as the prospective parents would have a right to this information. Moreover, it is not morally acceptable to systematically treat pregnant women as suspects in this regard.