Can Liberals Support a Ban on Sex Selection?

Australia essentially bans sex selection, except to prevent babies being born with serious sex-linked disorders. The National Health and Medical Research Councils also prohibits it in its guidelines.

A couple in the state of Victoria is currently appealing to the Victorian Civil and Administrative Tribunal to allow them to access IVF and to deliberately have a girl. The couple have had three boys naturally and lost a daughter soon after birth. They recently had IVF which resulted in a twin pregnancy. The twins were boys. They aborted the pregnancy.

I argued over 10 years ago there are no good reasons to oppose sex selection in countries like Australia.

According to the father of liberalism, John Stuart Mill, the sole ground for interference in liberty is to prevent harm to others. As Gab Kovacs pointed out in that article and I pointed out 10 years ago, nobody is harmed by this couple’s decision to have a girl. The ban on sex selection is a blatant abuse of state authority.

It is instructive to look at the objections that people did raise to this case. First, let’s start with the “expert” from the opposing side, Gene Ethics director Bob Phelps.

I’m sorry they lost their daughter but, in the interests of society as a whole, they should seek some counselling for their grief and look for another way of getting a daughter into their family.

Mr Phelps said he was concerned that making an exception in this case could open the floodgates and raised concerns about skewing the male-female balance of the population.

There is no evidence that the sex ratio would be changed in a country like Australia. People’s preferences are divided equally and most requests are for “family balancing” as in this case, where couples seek to have a child of the opposite sex to the ones which they have already. If one were seriously concerned about the country’s sex ratio, one should adopt the least liberty restricting option, not the most liberty restricting option. The least liberty restricting option would be to allow free selection and simply monitor the sex ratio. If it did show signs of worrying disturbance, this could easily be corrected – by then allowing only sex selection for the minority sex. That is, if too many boys were produced, sex selection could be restricted to choosing girls for a time. Or a slightly more liberty restricting option would be to only allow sex selection for second and subsequent children and only for the sex opposite to the existing children.

But this is not the reason why most people are concerned with sex selection. One has only to glance through the correspondence on this issue to see what the real concern is. Evidently, people employ what Leon Kass described as the “wisdom of repugnance” or the “wisdom of the gut”. I have again discussed this kind of “ethical reflection” and its invalidity. In the first 30 or so responses, I read, “Appalling”, “Sick”, “Disgusting”, “Horrifying”. Virtually every response expressed strong condemnation (except for a rather thoughtful response from an IVF mother.) Here is one typical response:

These people are disgusting. Grieving for there dead daughter, but happy to murder (oh, I mean ‘terminate’) two boys? IVF sex selection should be for medical reasons only, such as gender-specific genetic disease. Not for people who want to replace a lost child. Frankly I don’t think people this emotionally unstable should be having any more children. They need counseling, not help to medically manufacture a replacement baby.

In the background of virtually the opposition was that this couple should not kill two healthy male foetuses for this reason. In a somewhat interesting twist on this argument, one journalist used this as an argument in favour of sex selection:

No, it’s the babies lost that must be our real concern here and for that reason alone the law must change so that no more will we see parents disposing of one child to make way for another.

Can the “babies lost” be a reason for liberals to oppose sex selection, or support it?

At the extreme end of this argument is the full blooded pro-life position, held by the Catholic Church, that the fetus and embryo are persons with a full right to life. Obviously, if that view were correct, sex selection would be wrong. But so would the 100 000 social terminations which occur in Australia every year, IVF which involves disposing of spare embryos, laws like those in Victoria which require destruction of excess IVF embryos, the use of the IUD and even the use of the oral contraceptive which can result in failure of embryo implantation. Such a view is wildly inconsistent with Australian life, society and values. It is not the basis for any kind of legislation.

Rather, at the basis of most of these folk objections is the view expressed that IVF and embryo selection can be used for serious diseases but not for mild disorders or for selecting the sex of one’s offspring. Over 10 years ago, Lach De Crespigny and I surveyed the attitudes of Australian practitioners working in clinical genetics and obstetrical ultrasound on whether termination of pregnancy (TOP) should be available for conditions ranging from mild to severe fetal abnormality and for non-medical reasons. We compared these for terminations at 13 weeks and 24 weeks. One striking finding was that these professionals who were routinely involved in termination of pregnancy were much more prepared to facilitate a termination, even at 13 weeks, for a normal pregnancy than for one involving a cleft palate.

This displays the dominant tendency of both professionals and the public to evaluate the reasons for a person’s choice to have a termination or to destroy an embryo. As I argued there, such a view cannot be sustained by liberals. Either the fetus or embryo has a right to life, in which case all killing is wrong, for whatever reason, or the fetus/embryo does not have the moral status of a person, in which case killing it for any reason is permissible, just as killing other living things with no moral status is permissible.

In fact, the dominant community position that killing for disability is permissible but not for reasons of sex selection is an example of objectionable eugenics – devaluing the lives of some, that is, those with a sex linked or other disorder.

The public and professionals are confused about the value of life and moral status. Either the embryo has a moral status or it does not. At present, it is permissible to destroy an embryo if

  1. It has haemophilia, or
  2. It is normal but excess to requirements for IVF

But it is not permissible to destroy an embryo because its sex is the same as 3 preceding children. This represents a wholly unsupportable account of the status of human life.

People with haemophilia, a sex linked disorder, have lives which are very worthwhile and worth living. The reason why it is permissible to destroy embryos with haemophilia is because embryos are not the kinds of beings which are harmed by being destroyed.

Liberals will at some point have to bite the bullet and embrace the implications of the values that they adhere to.

It is time to revise our irrational, harmful and illiberal opposition to sex selection.

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9 Responses to Can Liberals Support a Ban on Sex Selection?

  • Matt Baum says:

    Thanks Julian, for this interesting post. I find it particularly poignant that one could argue the case that allowing sex selection would actually minimize the “babies lost” in most cases. In this case, twin boys were terminated (legally) b/c a girl was wanted; yet allowing the couple to select a girl during that same IVF would have resulted in a sustained life (with the same number of embryos lost in IVF in both cases). Similarly, even in cultures unlike Australia, where one sex is preferred, allowing sex selection would minimize termination or abandonment of unwanted children, again minimizing lives lost. Any position against sex selection, therefore, should be founded on something other than simply “babies lost.” Myself, I would support sex selection for purposes of family balancing, which might manifest itself in policy the way you mention above, with selection permitted for the 2nd+ child in the direction opposite.

  • Irene says:

    A round of IVF is approx £5000 in private practice (according to the NHS) and would presumably be more expensive if sex screening was required. Running £5000 through the calculation in your post How Many Lives Should I Save? produces 78 lives saved- not fetal lives whose moral status is in doubt, but actual lives. You found it difficult to justify not giving what we can. Obviously, giving at the level Toby suggests requires personal sacrifices. This would seem a good place to start.

  • Julian Savulescu says:

    Thanks for these comments. Irene, £5000 would also be one term’s private school fees, 1/10 of a luxury car, one expensive overseas holiday, etc. Maybe they should give this money to charity. But what is the abuse of state power is a law preventing them from spending the money in the way that they wish. Maybe we should not buy expensive cars or send our children to private school. But I don’t want to live in a society that has laws preventing people from doing that. Yet that is precisely the society we live in when it comes to the reproductive world, a world constructed on the morals and opinions of the self-appointed morally superior, at the cost and exclusion of liberty. I have no problem with do-gooders telling this couple that morally they should adopt or give their money to charity. What I do object to is the existence of laws preventing them doing what they should be free to do.

  • Irene says:

    Fair enough!

  • Michelle Hutchinson says:

    “Either the fetus or embryo has a right to life, in which case all killing is wrong, for whatever reason, or the fetus/embryo does not have the moral status of a person, in which case killing it for any reason is permissible, just as killing other living things with no moral status is permissible.”
    This might be an over-simplification of the case, and in conflict with society’s other beliefs. It seems to imply that beings must fall into one of only two categories – having an absolute right to life which cannot be infringed under any circumstances, and their lives having no moral value at all. Our society seems to see animals as a counter-example to this – we allow animals to be killed for some reasons (food, clothing), but not for others (the ban on fox-hunting). It might be thought that a fetus had some right to life, but that the right was defeasible, and more easily defeasible than a human’s right to life. For example, it might be defeated by its having a disability which would make it hard for the parents to look after it. Hence, the reason for a termination might be important. And moreover it need not be differences in the fetus itself which makes the reasons significant. Allowing people to act on certain motivations might lead them, or others in society, to develop harmful dispositions, even if the action they perform is not in itself harmful. This seems to underpin the common objections that allowing certain embryos to be killed for their gender (as opposed to killing the same embryos for other reasons) will lead to people disrespecting people of a certain gender, or to humans lacking the humility they ought to have.

  • Julian Savulescu says:

    Thanks, Michelle, for the provocative comment. The idea of fetus as a fox, and sex selection as like fox hunting, are original and intoxicating ones. However, if the fetus were like a fox it might prove too much. After all, those who take seriously the moral status of animals argue that it is all or none. They argue it is wrong to kill animals for food and clothing. If the fetus were like a fox, all abortion and embryo destruction would be ruled out. More importantly, a right to life is not generally taken to be defeasible. It is all or none. Even though the value of lives might differ, the right not to be killed is a threshold right. Thus, while differences in value might give different reasons for saving, they do not generate different reasons for killing. Thus we might prefer to save the life of 20 year old rather than a 70 year old, but that does not imply we are entitled to kill the 70 year old. And finally, even if you were right that the fetus’ right to life were defeasible, this would not establish an argument against sex selection. Your premise that allowing people to sex select will lead to the development of harmful dispositions, leading “to people disrespecting people of a certain gender, or to humans lacking the humility they ought to have” is an empirical one without evidence. We have to have good evidence of harm or very strong reason to believe that it would occur to infringe liberty, not empirical speculation. How could family balancing display any vice? Boys and girls are different and it is reasonable to wish to experience the different kinds of parenting associated with each. Even in countries where there is widespread prejudice against women (not like Australia or the UK), that prejudice is already present and the result of cultural and religious traditions and histories. In those countries, sex selection would be the symptom, not the disease. And in the UK and Australia, there is not even a disease to cause symptoms, at least in the case of family balancing.

  • Peter Wicks says:

    Before dismissing opposition as “irrational, harmful and illiberal”, perhaps we should try harder to understand where it comes from. Michelle has hinted at one possible driver, namely the concern that it could lead people to develop harmful dispositions such as gender bias or hubris. Another way to put it is that it expresses a natural reticence of the population in the face of technologies that, precisely by expanding our choice, is disturbing our comfortable notions of what is possible, what is sacred, and what it means to be human. Abortion has been around for ever: you like it or you don’t like it, but it’s not something new and scary. The same cannot be said for sex selection by IVF.

    Ultimately I think I agree with Julian’s conclusion, but the argument would, for me at least, be stronger if it took these (in my opinion legitimate) concerns a bit more seriously.

  • Matt says:

    “Either the fetus or embryo has a right to life, in which case all killing is wrong, for whatever reason, or the fetus/embryo does not have the moral status of a person, in which case killing it for any reason is permissible, just as killing other living things with no moral status is permissible.”

    Michelle has already commented on this, but why must the fetus/embryo have the moral status *of a person* for killing it to be impermissible? Clearly, there are things in between ‘moral status of a person’, and ‘no moral status’.

    “After all, those who take seriously the moral status of animals argue that it is all or none. They argue it is wrong to kill animals for food and clothing. If the fetus were like a fox, all abortion and embryo destruction would be ruled out.”

    Well, this is wrong. People who take seriously the moral status of animals have a wide range of views, and ‘all or none’ is not a particularly common one from my experience. Many people think that animals have a moral status which entitles them not to be inflicted with unnecessary suffering, but not sufficient to grant them a right to life (e.g they will happily eat animals, provided they were brought up in good conditions).

    Others will grant them a right to life *except* in particular situations, e.g. if there is no other food source, in which case self-preservation may be deemed sufficient to overrule the animals right to life. Or alternatively, if an animal is suffering intensely, someone may deem the animals right not to suffer is sufficient to overrule its right to life. These arguments even apply to persons. Self-preservation justifies killing in self-defence (i.e the attacker’s right to life is not inviolable in this situation), and if someone is seriously suffering in hospital, doctors may justify giving them an overdose of a drug in order to relieve the suffering, even if they know it will likely kill them.

    So from these perspectives, if the human fetus were like a fox, one could justify killing it
    a) on the grounds of self-preservation of the mother (and given the risks of pregnancy/childbirth, this could well be a valid reason
    b) if the fetus was highly likely to suffer intensely

    As for the main topic, I very much agree with Julian. Though, as Peter says, there are perfectly understandable reasons why people fear changes in technology/society, especially reproductive technology. People are often scared of change, because it represents something they do not understand. People like security, and familiarity. We like to feel that we have lived their life according to ‘good’ values, and when something comes along and suggests our values are wrong, it is essentially saying we have not lived a good life. That can be hard to stomach.

  • Arif says:

    I think that the intuition underlying the “gut” issue may be that normalising sex selection would change our relationship to our society, our children, our parents and ourselves. I’ll try to express this intuition. I don’t think this is my considered view, but just thinking through the other side of the coin to the one you present, Matt.

    At a mundane level, what would it mean for a child to know that their parents aborted male fetuses to have a girl because they like their home to have a girly atmosphere, or to replace another golden daughter who died early or whatever reason, but the child itself is a “tomboy” or somehow does not fit in with their parents’s view of femininity? This is just an extension of current banal family dynamics in one sense, but … it is also new. Who gets blamed when the designer baby does not live up to expectations?

    If I am now faced with choices about sex of child to have, what is the responsible, or more moral choice? Are we to start saying that it is more responsible to choose a male child when certain criteria are met and female in other circumstances? Would the fact that gender selection has skewed gender ratios mean you have a moral responsibility to redress this in your own choices? How to avoid too many people doing so and thereby causing the ratio to overshoot in the other direction?

    If morality is scrupulously kept out of decisions in sex selection, then how do we process the fact that “I was born a boy because my mummy likes the colour blue” when our sex is such a profound aspect of our selves once we are conscious?

    I am not arguing that these are good reasons to stop sex selection, but that any specific sex selection probably should have a good reason. To claim it is illiberal to restrict something where there is no necessary harm just doesn’t seem to apply in the same way to this situation as to paradigm situations of no harm to others. We are not discussing the rights of people to continue living as they have been, or to experiment with living their own lives to new rules. But the right to do what has previously not been possible with wider ramifications for society as a whole. In this case there is no coherent justification in terms of improving human wellbeing. Maybe there is no coherent reason to oppose it either, just fear of needless change. But if social prejudices on the relative value of males and females are not ruled out as reasons for sex selection, is that necessarily liberal? In a patriarchal society (which you may deny Australia as being) it may enable prejudices to intensify the devaluing of some citizens relative to others.

    For liberals concerned with harm, apart from constructing harm to embryos, as some do, there is the possible harms both to the individuals born to a more intensely gendered expectation and to the society which has to maintain itself more consciously where previously gender ratios were naturally regulated. Perhaps actions to alter gender ratios and lay gendered expectations on children could be seen as a form of pollution, with others bearing unquantifiable costs for parents’ new gratifications and entitlements. While actions to select a sex for health reasons strike a better balance.