By Prof. Jaime S. King, Hastings College of Law, Non-Resident Fellow, Center for Law and the Biosciences:

Last week, HRC Fertility, a leading fertility clinic on the West Coast, announced its new educational website – www.gender-baby.com – aimed at helping hopeful parents choose the sex of their child – for medical or personal reasons.

When performed for medical purposes, sex selection has generally been considered ethically appropriate.  Physicians offer patients with a family history of an X-linked genetic disorder information on the sex of the fetus or preimplantation embryo to enable them to select against male fetuses who would have a 50% chance of having the disorder. However, in many countries, the technologies that enable sex selection for medical purposes have been quickly adopted for other uses – including family balancing (selecting a boy when the parents already had a girl and vice versa) and parental preference. The use of medical technology, including ultrasound, amniocentesis, sperm sorting, or even preimplantation genetic diagnosis (PGD), for non-medical sex selection has been more controversial. For many, non-medical sex selection seems to simultaneously support the drive toward “designer babies” and emphasize the relevance of the differences between the sexes.

But let’s face facts – as the HRC website makes sure to point out – sex selection for social purposes has been occurring for centuries. Globally, it’s not a new phenomenon. And its use by ART clinics in America is also not new. A survey of U.S. ART clinics published by the Genetics and Public Policy Center in 2006 found that 39% were willing to provide non-medical sex selection in the absence of another reason to undergo PGD, and just under 10% of the PGD procedures performed in the surveyed clinics were for non-medical sex selection. So what makes HRC Fertility’s new website worthy of consideration?

Two things really.

First, HRC Fertility takes a clear stance in favor of patients opting for non-medical sex selection as a valid exercise of their reproductive autonomy. It provides numerous justifications for why parents might choose to engage in non-medical sex selection. One consistent theme is the idea that parents in today’s society have smaller families and want the ability to parent children of both sexes. HRC Fertility has the technology to help them do just that. All parents must do is undergo IVF and PGD (which are expensive, carry significant risks for the mother, and are largely unpleasant (again for the mother)) – but it’s worth it to get the perfect child you want, right?

In many places the website purports to acknowledge both sides of the debate over sex selection by posting references to consensus statements by professional societies or non-profit organizations that oppose non-medical sex selection. But, these statements are then followed up by comments that subtly and not so subtly refute these recommendations in a presumed effort to make potential patients still feel comfortable having sex selection. For instance, HRC Fertility’s website acknowledges the guidelines issued by the Ethics Committee of the American College of Obstetricians and Gynecologists (ACOG), which counsel strongly against non-medical sex selection, “because they may ultimately support sexist practices.”  The website’s Ethical, Moral and Social Issues Section references the ACOG guidance, but then immediately dismisses it through a quote by Dr. Daniel A. Potter, an ACOG fellow, stating:

“ACOG purports to support a woman’s right to reproductive autonomy, including abortion for any reason…. To oppose family balancing because it ‘may’ support sexist practices is absurd. … The issue here is reproductive autonomy … a decision that should be made privately by the patient and her physician.”

Did I mention Daniel A. Potter works at HRC? Yup. He’s one of the eleven physicians they have on staff.

It was only a matter of time before Fertility Clinics in the U.S. stopped quietly ignoring professional society guidelines and started blatantly disregarding them. Too much money is potentially on the table from both domestic and international wannabe parents. HRC Fertility’s website demonstrates the overall ineffectiveness of professional standards as a method of regulating the assisted reproduction and reproductive genetic testing, and offers a strong incentive to consider regulating the practice of ART in the U.S.

The second striking feature of the website is its clearly stated willingness to offer sex selection services to women from countries with high male to female ratios where sex selection is prohibited. In response to an anonymous question regarding whether HRC will take patients from countries where sex selection is illegal, Dr. Tourgeman states:

“Gender selection is legal in the United States. Living in a country where gender selection is not legal does not preclude you from becoming an HRC patient and making use of our advanced technology. In addition, HRC is very adept at finding and working with physicians and fertility clinics in your country so that you can be monitored close to home.”

The website openly discusses the historical preference for boys and offers explanations of “Why Men want Sons” and “Why Women want Daughters.”  Overall, the website seems to generally support the use non-medical sex selection to ensure the birth of a son, even when based on cultural biases favoring males.

It is time for America to examine the issues and take a stance on sex selection. And let’s be clear – not doing anything is a policy decision. What role do we want to play in the future of sex selection? Moreover, what role do we want to play in the burgeoning field of reproductive genetic selection? Do we want to be the global destination for parents who want a boy in spite of the societal harms beginning to develop in countries with high male to female ratios in their home country? What about at home? Do we think that non-medical sex selection is an appropriate exercise of reproductive autonomy, which should be protected by the 14^th Amendment – or do we feel that the ability to determine the sex of a child does not rise to the level of importance of a constitutionally protected decision, such that a state could regulate the practice?  How do we feel about other genetic conditions and characteristics?

What do you think?

Jaime King