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WELCOME

Everyone be welcome to the second journal paper discussion of our new Bioethics Journal Club.

The topic is why sex-selection should be legal. The sex-selection, under discussion, is specifically defined as occuring prior to implantation by techniques available in recent years. The morality issues are not directly debated. The paper deals with sex-selection as part of reproductive liberty.

The citation to the article is included below and also a direct internet link to the abstract of the paper. Following that are the reviews written by members of our journal club. Read at least the abstract first and then click on your browser's BACK button to return to this page to read the reviews.

Followups by our members and comments by the visitors is located as a section below the reviews titled "Followup Comments" and is formatted so that the most recent dated comments are at the top of the section.

We invite visitors who would care to join and participate in these reviews, adding to our club membership, to do so and write me a bit about yourself to share with our other members. Please also let me know if you have any suggestions for this club.

I would like to inform our visitors that Joe Russo, a current graduate student who suggested the development of this journal club, is our moderator.

Now let's get on with the second paper! ..Maurice

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Why Sex Selection Should be Legal

By David McCarthy, University of Bristol, UK

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J Med Ethics 2001; 27:302-307

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CLICK HERE TO LINK TO THE ARTICLE ABSTRACT

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I read with interest, the article by David McCarthy regarding the legality of sex selection. In this article, Dr. McCarthy proposed arguments for the legalization of sex selection for non-medical reasons. In the abstract, Dr. McCarthy states "reliable medically assisted sex selection which does not involve abortion or infanticide has recently become available". Then, in the article, he speaks of post conceptual genetic diagnosis and reimplantation. My biggest problem with the arguments put forth is that post conceptual genetic diagnosis and reimplantation would likely involve infantcide on an embryonic level. Many people believe that life begins at conception. If a couple were to choose implantation of embryos that are of one sex, what would happen to the embryos of the opposite sex. They would likely be discarded (as unused embryos frequently are in many currently accepted fertility practices). Discarding an embryo is not morally acceptable in the minds of many (myself included) and doing so violates the right of the discarded embryo to live. So, the foundational concept that this method of sex selection does not carry with it the moral unacceptability of abortion is not valid.

Beyond this, I am also concerned with the costs of the procedure. Dr. McCarthy did address this issue to a degree. If there were some guarantee that public funds would never be used to fund such a procedure, there would be little place to argue the social justice of persons paying for this procedure privately. However, I believe that it is inevitable that those on public assistance will cry 'foul' and argue that they are being denied an accepted medical procedure that gives them reproductive choice. This will eventually lead to public funding of this procedure. Ignoring this eventuality at the beginning of this debate is just going to lead to more problems when this issues surfaces later.

While Dr. McCarthy makes some good arguments for legalizing sex selection, I feel there are some foundational issues that need to be addressed before his other arguments can be seriously considered.

My thoughts are that the answers to the questions "when to have a child?" and "if to have a child?" are quite different than the question "which gender child?" The answer to the first two questions can be reasonably answered by the couple barring any reproductive abnormalities in either partner, thus typically neither of these two questions relies heavily on modern technology in particular to exercise this reproductive liberty. The third question is answered only by preference and can be made manifest almost exclusively based on laboratory based technology. Only parents within the past decade have ever dreamed of being able to choose with any degree of certainty the gender of their children. Basic liberties seem to be liberties that don’t require access to high technology or anything other than the environment in which the individual is in. Therefore it doesn't seem that the whole reproductive liberty scheme needs to be attacked in order for sex selection to be restricted as the author suggests. This does weaken his argument, however his basic premise of the need for irrefutable evidence against the practice of sex selection does stand in light of legality.

It doesn't seem that without further study of the practice to note trends in sex selection and how they may play out in our society that it should be restricted. Sex selection should probably be legal in those areas in which it is currently illegal on a trial and highly limited basis until it has been shown to have no ill effects. However, given that it seems that the author's major point does not stand in that we need not totally restrict all aspects of reproductive liberty (such as when and if to have a child) in order to restrict sex selection, once any trend is shown that sex selection is being used improperly at all it will be easier to restrict it.

Why do I object to making a decision regarding the sex of the child? For me the problem is one of need. Unless it can be proved that there is a significant need to select the sex of a baby then I see no reason to permit that selection to take place. The primary reason for this is the cost of the procedure. If it is to be conducted under the NHS (or available under Medicaid or some other state funding system) then the pressure placed on the resources of the system require at least that there should be some medical/psychological need for the treatment to take place. There is a requirement for those responsible for spending money to be able to justify that spending to those that have paid for the service. If it is not to be funded in that way then there is the question of justice invovled with making such a procedure available only to those who can afford it. If it really is the case that this is a basic liberty then we cannot allow the protection of this liberty to be dependent on ability to pay. I suggest that David's position demands (at least in the UK I cannot really comment on the US or others) public funding of sex selection. I believe this is unnacceptable unless there is a provable need. After all the NHS will not fund cosmetic surgery purely on cosmetic grounds (i.e. unless there is a medical/psychologial need).

I also feel that the treatment given to the slippery slope arguement misses a couple of important points. Firstly, where should we draw the line? What sorts of decisions should parents be allowed to make if we allow them to choose the sex of their child? David mentions height, but what about hair colour or eye colour? Secondly, if we permit sex selection and it becomes very popular, we can imagine that the balance of sexes in society might be seriously changed. David considers this but does not give it due weight. What might be the consequences of a society in which 70% of people were female? What if the proportions were even more outrageous? If this happened society may be forced to take away this 'basic liberty' in order to re-establish the balance between the sexes. I believe that the slippery slope argument is much more persuasive than David gives credit for especially concerning the problem of where to draw the line.

In summary, I believe that David's argument is flawed in three ways. Firstly he is wrong to say that the liberty to select the sex of one's baby is constituent in the basic liberty of reproduction. Secondly, he is wrong to say that this liberty would not harm society, there would in fact be significant social costs (financially at least). Thirdly he does not give adequate weight to the slippery slope argument and does not show how the right to select the sex of a child might differ from being able to select the height, eye colour or hair colour of a child.

In many ways I was a little disappointed with the article. I was excited by the question I thought David might be addressing which concerned how the law should deal with a question in which there is so much moral disagreement. It is inevitable that by forcing the law to make a decision regarding the legality of a certain act, it is also judging on the morality of that act. For example, judging that abortion should be legal is also judging that it is not morally unacceptable. In the same way judging that sex selection should be legal is suggesting that the law should regard it as morally acceptable. As David acknowledges there is an amount of disagreement regarding this question and so we should ask whether the law should make such a judgement, and whether in such cases we might prefer the law to permit or forbid actions which are so morally controversial.

I thought I might come back with a further couple of brief comments.

I just want to clarify my position with regard to the issues here.

Firstly, I agree with John that the important thing in the cases of aborting (that is, altering the fate of) a) a foetus with a severe disability and b) the wrong gender is that the outcome will be the same (there will be no birth). In that sense of course the actions are the same. I feel that I place a greater emphasis on ensuring the reasons behind the action are appropriate than John might (in other words I feel John is more consequentialist than I am). In the case of a severely disabled foetus I believe that deciding that it would be inappropriate to give birth can be justified either in terms of the harm to the foetus or in terms of the immense strain put on the family and carers of the child (I would also put some importance on issues for the state, but I know John would object to that so I am happy to pass on those). In the case of the foetus aborted because it is the 'wrong' sex the reasons behind the action are surely no more than a preference decision on the part of the parents.

With regard to the place of ethics in society...I would not wish to argue that ethicists should sit in 'ivory towers' and pass judgment on society and decree what should and should not be done. I see the role of an ethicist as a facilitator of informed and thoughtful discussion. This is of course very important in a democracy where it is the people who should have the final say (even if it is indirectly carried out through their Representatives). To that end, I think that John and I agree, perhaps I did not explain myself clearly enough.

As a final comment I would like to say how stimulating this sort of debate is. The only way one can really learn about and clarify one's own views on subject like this is through discussion with others. I for one would welcome a similar sort of discussion on any matter. Bring on the next article and let's all make a New Year's resolution to really help the journal club lift off.

Will

Thanks Will for your reply. To my way of thinking there nothing worse for a writer than silence. You have saved me from that malaise. I'm most grateful.

Regarding your first comment, where you distinguish between altering the fate of a fetus, unwanted because of disease or deformity on the one hand, and on the other hand, altering the fate of a fetus, unwanted because of gender...frankly, I see these two cases as ethical and practical clones. In both instances, someone has decided they don't want an embryo or a viable fetus, for one or the other reason. It's the fact that they are unwanted, or inconvenient that makes the cases identical, in my opinion. And that is the case in the vast majority of "unwanted pregnancies"... a euphemism, of course, for unwanted embryo/ fetus/child/responsibility/ trouble. I don't claim that any of these decisions are "wrong" or bad, or unethical; my position is that no one is better able to make these determinations than those immediately responsible for the outcome. In my view no one else is so capable of making these decisions, because those others are unable to take the responsibility for the outcomes. If an excess of boys or girls results, ( or a scarcity of people, or Downs children), I believe individuals are capable of reacting more effectively and appropriately philosophers or central planners... or even, forgive me please, bioethicists, or you, or I.

In view of the foregoing, you'd be right to suspect that I’m not a Statist, or Collectivist, which bears on my thoughts about health care. I quite agree that when the State attempts to guarantee health care to all, priorities must be set; by whom? by the State. Many would claim that the State is, in fact, all of it's members; or that, in a democracy, the State’s actions reflect the will of its members. But history reveals that States, whether religion driven or secular, are subject to error, to decay, to greed, to corruption, to deceit, as are individuals. The problem is that when the State errs, the results are hugely harmful, while if individuals err, the effect slowly accumulative and more easily reversed and is far less catastrophic. As to the NHS, in a democracy government far too often over-reaches in its promise to provide for members, in order to retain power. The result is: the need for more state power and restriction and control. The NHS may not be affected by this process yet, but in time i expect it will be. So, in a way, i agree with you... IF, to stay in power, a government must promise health care to all, then rationing is unavoidable. It's unfortunate, but people will never be content with less than their neighbor. If the State provides, more will be demanded of the State. If individuals provide, more will be demanded of each. In the former situation all become equally deprived of expensive health care; in the latter all have equal opportunity to expensive care, even though all will not attain it. I expect you and I shall never quite agree on which is the better, the more humane, or the more efficient and beneficial system. ( or non system!) Maybe, the only mutual consolation we can offer one another is that both "systems" are imperfect, but perfectly reflect human nature.

Regarding ethics, or bioethics, maybe we are making chicken vs. egg statements. One of my favorite authors, now long dead, is Lancelot Hogben. Could he be anything other than a Brit!? ( for that matter, my name derives from Loughbourough, another name that could have only one geographic locus!) I particularly like two of Hogben's not so well known books... "The Mother Tongue"; and more to the point, "Math for the Millions" . Through many historic examples, he points out very convincingly and cogently, that great breakthroughs are almost never the result of people sitting down and reasoning, or philosophizing; they are, rather, the result of people having to DO something; in all cases the uncommon common people who must resolve a practical life problem. I refer you to that book for a much more extensive treatment that i can give here... but for example, geometry didn't start with Euclid et al sitting down and reasoning. It began when people had to decide how to mark off agricultural fields and tracts so as to know their value. Numbers began when people had to keep track of sacks of millet or such. So it is, i'd say, with ethics. It is very stimulating to believe that the proper role for ethicists is to sit down and reason together and come up with instructions for society to follow. Perhaps, as you say, there are countless cases in history where peoples Beliefs (I use your choice of words, beliefs) are later found to be "wrong". I'd counter: It's more common that the beliefs based on reasoning and discussion among experts, are revealed to be erroneous by events, whether those events are stunning scientific discoveries or just the findings of outsiders, like Jenner, Lister, or Einstein. The usefulness, the importance, of ethicists, in my view, is not in question. We cannot survive in the world today without the State. Nor can we do without an ethic, and those who interpret and define and redefine the rationality of our ethics. What I question is the primary role you assign to us. And to the Collectivist State, of course! But perhaps we will be able to agree to disagree, and watch things unfold.

I was raised in many parts of the world, nurtured in several languages, and cultures, and came to believe that the highest honor one person can pay to another is to disagree, and say so honestly, frankly, and respectfully. In other words: to be considerate enough to disagree. Once again, Will, I thank you for that!

JL

I have two main issues to tackle. First is a response to the comments John made regarding my initial discussion of the piece. Second are some more general comments about the role of (bio)ethics in society.

In my comment on the original article I highlighted a difference between allowing parents to chose whether or not to have a baby born with Down's syndrome (following diagnosis of the condition) and allowing parent to chose the sex of their baby. I would like some more detail about John's particular concern regarding my comments but I will try to explain my position more clearly. If one is to permit the selection of a foetus (either in vitro or through selective abortion) then I believe that this should be based upon more than the preference of the parents. For example I would argue that it is perfectly acceptable to choose not to give birth to a child with a severe disability (and whether Down's syndrome counts as severe enough is a matter for another discussion). This is more than simply a matter of preference or choice. On the other hand, choosing not to give birth to a child simply because it is the wrong sex is something completely different.

I would extend the argument I made in my original comments regarding the cost of the procedure. Of course in a system such as the NHS (in the UK) financial cost is a primary concern but I would also like to highlight another cost. The time spent by doctors/nurses/other staff members on this type of selection (even in vitro) is time they cannot be doing other things. I hope that those of you who are directly involved with providing health care would agree that prioritizing time spent on patients is very important. To this end, I argue that this sort of procedure must come very low down on the list of priorities (even if it can be shown to be ethically acceptable).

John makes some comments about the role of ethics which I would also like to disagree with. He indicate that he believes "ethics and law typically react to, rather then drive, change". This may be factually true, especially in the case of the law. For me this is a most undesirable situation. It should be the case that discussions of the type that we have in this group, and that are held by those who regularly think about (bio) ethics should drive change in society. This is especially true in the case of new technologies such as those that will enable us to select the sex of babies in vitro. Rather than allowing society to make up its mind and then describing why that is acceptable I think we should discuss the pertinent facts and issues and take these to society trying to show why we believe that x should be the case. There are countless cases throughout history when the commonly held beliefs of society have later been shown to be wrong/unfounded/dangerous/discriminatory. It is the role of ethics in general to drive change in these areas rather than waiting for society to drive change in ethics.

Will Thomas

I found the topic, and the foregoing comments [in the Review Section] interesting, particularly Joe Russo's nice distinctions between whether to have a child, and choosing gender. It seemed to me that Will Thomas' conflict between wants and needs of individuals too easily deferred to the needs of the omniscient State as Payor and Arbiter of Equality. And there is no doubt that this kind of sex selection involves discarding the unwanted embryo, as Debra Buckler points out. Yet I do think, that as a practical matter, in vitro sex selection will become an acceptable, (read legal and ethical), option. It is just one, admittedly new, way that people are able to alter the genetic makeup of a progeny, and therefore change not only their own life, but that of society. A primitive form of gender selection consisted of killing unwanted, usually female, infants; in its time and place it was acceptable to society. The mythic attempts to foil fate by killing the newborn are the stuff of many fine Greek plays, though the ultimate tragedy condemned the procedure theatrically. So it seems to me that rather than a "slippery slope" this more modern way to determine sex is just part of a process in which humanity recreates itself.

It seems that ethics and law typically react to, rather than drive, change. Relatively simple and reliable birth control has changed the fate of women and therefore of us all, including the right and wrong of it all. Abortion of a fetus likely to be abnormal, as determined by amniocentesis, sonography, or other means has become legal in the face of technology, though formerly forbidden, by church and state. If the genetic determinants of Downs Syndrome can be corrected, is there any doubt that this genetic manipulation would be as ethically or legally acceptable as termination of a trisomy pregnancy? Humankind has not been "natural" for a long , long time. Surely no one in the developed world lives within the confines of nature, when we land on the moon, seek solace in climbing a mountain, write, speak, or live homeless in the city ! Our human condition is artificial in nearly all essential respects. Unless we begin to follow a Kaczynskian dogma, which I find unlikely, we will continue to create and recreate ourselves, even though the risk/ benefit ratio is uncertain, as is the ultimate outcome.

I believe discussions like these are critically important, though my orientation is this: bioethics is the art or the science of interpreting and enunciating the way society adapts to technologic development, rather than determining its direction or limit. Congratulations on the Bioethics Journal Club, as well as the whole site. I'm delighted to see it.

John Loofbourow