In 2015, The National Health and Medical Research Council was accepting public submissions regarding sex selection in IVF procedures. It has previously prohibited non-medical sex selection.

This is one of two responses we’ve published on our website. Don’t agree with Julian? Check out Tamara Kayali Browne‘s piece, which argues that IVF sex selection is unethical.

Current NHMRC guidelines prohibit non-medical sex selection by any means. Victoria, Western Australia and South Australia have specifically legislated to ban sex selection using assisted reproduction.

The guidelines are now under review, providing the Australian public, the NHMRC and professionals an opportunity to re-examine their opposition to sex selection.

Opposition to the legalisation of non-medical sex selection illustrates a misunderstanding of the role of law in civil society. If A wants to do X, and B wants to assist A to do X for a price, the sole ground for interfering in their freedom is they will harm someone. Moral disapproval is not a ground for a legal ban.

Who would be harmed by allowing sex selection?

The most obvious candidate is the child. Call him John. The basis of most legislation in assisted reproduction is that the best interests of the child must be paramount. However, it is not against the interests of John to be conceived by sex selection. Indeed, if IVF and sex selection were not performed, John would not exist. John owes his very existence to the act of sex selection.

There is another kind of harm often invoked in these kinds of debates – a moral harm. John is being used as a means to his parents’ ends of having a child whom they have stereotyped goals for. John is being used as an instrument.

People intuitively believe that children should be “gifts”, not valued for particular characteristics, such as sex, intelligence or athletic ability. We ought to give them their own opportunity to make their own life. That is, they should have a right to an open future.

Enter Immanuel Kant

Such objections are best expressed by German philosopher Immanuel Kant, who said people should always be treated as an end, and never a means.

But what Kant actually said is never treat people merely or solely as a means. We treat people as a means all the time – shopkeepers, salesmen, repair people and doctors. We respect adults by obtaining their consent to treat them as a means.

It is not possible to obtain consent from children – particularly not regarding their creation. What then does it mean to treat a child merely as a means?

People have children for all sorts of reasons – to be a sibling, to hold a marriage together, to care for parents, to be a companion, to realise the parent’s dreams, to take over the family business or to be king of England. Ethically, these reasons aren’t important. What matters is how well they treat their child once it is born, whether male, female, disabled, tall, short, come what may.

Something like this kind of “instrumentalisation” objection might be behind the NHMRC’s policy:

A conditional life

The Australian Health Ethics Committee believes that admission to life should not be conditional upon a child being a particular sex.
Equality of all people should not be conditional upon any characteristic, such as their sex. But there is a distinction between continued existence and coming into existence. Continued existence should not be conditional on sex.

It might be thought the same follows for admission to life. But the NHMRC does allow medically motivated sex selection to guard against certain diseases and disabilities. This suggests admission to existence can be “conditional” upon being healthy and non-disabled.

What “conditional” means here is “based on reasons”. One can have children for reasons, such as being of certain sex, having certain abilities, being healthy or not disabled. As long as one loves the child, gives the child an open future and good life, having reasons to have that child is perfectly ethically acceptable.

For example, a father wants to have a son to take to football matches. He therefore moulds the child to his needs by sex selecting. He can still treat the child, once born, as an end by respecting the child’s own decision to pursue an interest in music instead.

Harmful sexist stereotypes

The final alleged harm is to society, either by reinforcing sexist stereotypes or disturbing the sex ratio. In some parts of India and China, there are six males to five females.

Such harms could be real and might be a legitimate basis for interfering in liberty. But another basic principle is that the least liberty-restricting (least coercive) means should be adopted to prevent harm.

The present ban on non-medical sex selection is very wide-ranging and coercive. Are there less coercive means that would allow some sex selection but not reinforce sexist stereotypes and disturb the sex ratio? There are at least three better policies:

  1. Sex selection only in favour of girls.
  2. Sex selection for family balancing. That is, sex selection for the second or third child, when the existing children are all of one sex and the preference is for the opposite sex. In Australia, this is the most common reason for sex selection and a little more than 50 percent select girls.
  3. Incidental sex selection. A couple having IVF and genetic diagnosis for infertility and screening of disorders, could be allowed to express a preference over the healthy embryos, at the discretion of their doctors.

Each of these strategies is less liberty-restricting and would protect the public interest.

There are no good grounds for the blanket ban on sex selection. Sex selection does not harm the child and any collateral harm (due to discrimination) can be controlled in better ways. A blanket ban is unethical, excessively restricting procreative liberty.