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- sex selection
- reproductive liberty
- Human Fertilisation and Embryology Authority
- democratic presumption
In “Sex selection and regulated hatred”1 John Harris launches a vehement critique of the Human Fertilisation and Embryology Authority’s (HFEA) recent report Sex Selection: options for regulation, raising several issues that merit discussion.
He begins by complaining about the recommendation that because of the theoretical risk associated with the use of flow cytometry as a method of sperm sorting, its use should be restricted for the moment to cases in which a clear medical benefit is to be gained from its use. Harris objects that in this recommendation “an absurdly high standard of caution is employed”, since a theoretical risk is associated with almost all medical procedures. This objection is misplaced: as paragraph 142 of the report indicates, the phrase “theoretical risk” is to be understood here in the light of the earlier discussion of the risks arising from the fact that flow cytometry exposes sperm to laser energy, a procedure which is known to be liable to damage DNA. Since the application of flow cytometry to humans is a new procedure, the risk of human genetic defects caused this way is still only “theoretical”; nonetheless it is serious enough to warrant caution—hence the recommendation that at present flow cytometry should be available only when its use brings clear medical benefits. The HFEA has recently been criticised by some for not being cautious enough when permitting the use of intracytoplasmic sperm injection (ICSI) even though in that case there are clear medical benefits from its use. It is extraordinary that Harris should now criticise the HFEA for not throwing caution to the winds concerning flow cytometry.
Harris’ next point concerns the justification for this suggestion that preimplantation sex selection should be available only where it is undertaken for medical reasons. The obvious way to justify this would appear to be on the ground that, because of the risks involved, it is only where there are clear medical benefits that the procedure is in the interest of a child thus created. As Harris observes, however, this argument would be a mistake; because these procedures determine who exists one cannot sensibly argue that it is only where medical benefits are to be gained that their use is in the interest of the person(s) thus created. Harris, however, seems determined to attribute this unsatisfactory line of thought to the HFEA: he writes “The only way to sustain the idea that seems to be in the heads of the members of the HFEA is to argue that although exposed to greater risk, such risks are in the interests of the child exposed to them because it is that child’s only chance of existence”. This is mystifying: there is nothing in the HFEA’s report to warrant imputing this idea to the HFEA. But one thing which seems to have guided Harris here is the famous clause 13(5) of the Human Fertilisation and Embryology (HFE) Act 1990 which requires the HFEA to ensure that, in the provision of “treatment services” “account has been taken of the welfare of the child who may be born as a result of the treatment”. For Harris says that he assumes that this clause has to be interpreted in such a way that “the child” whose welfare is at issue is “the particular child calculated to be the product of the combination of choices and technology used”; and once this interpretation is in place, it may seem to follow that sex selection procedures can only be allowed by the HFEA where they advance the welfare of “the particular child …”.
The first thing to note here is that if Harris’s assumption here is right, it is the HFE Act, and, not the HFEA itself, which imposes the requirement that sex selection for medical reasons be justified as in the interest of “the particular child” etc. The second thing to say, however, is that Harris’s assumption is unnecessary; the requirement to take account of the welfare of the child can be understood as a general requirement to take account of the welfare of any children who may be born as a result of the treatment. On this interpretation sex selection for medical reasons can then be justified under the Act by the fact that, when judged by the standards of the welfare of the children who may be born, the result where sex selection is used to avoid a sex linked serious condition is much better than where it is not used, despite the risks involved.2 Towards the end of his discussion of this issue Harris himself seems to accept this: he writes “Now of course there is a sense in which the HFEA is quite right. The Authority wants to say that for parents at risk of producing a child with a sex linked disorder there is an important therapeutic advantage in sex selection”. Having conceded this, however, Harris argues that if this is the HFEA position, then, in all consistency, it should allow sex selection for other reasons as well. But there is no such implication. The welfare of the children who may be born is a consideration which justifies sex selection for medical reasons. But where sex selection is to be used when there is no risk of serious inherited sex linked conditions and is instead intended primarily to satisfy parental preferences, the appeal to the welfare of the children who may be born cannot be invoked as a justification for it. Of course, more argument is required to show that parental preference is not a sufficient justification. But in order to rebut the accusation of inconsistency that is not to the point. So Harris’s claim that there is an inconsistency in the HFEA’s judgements on this issue is entirely without foundation.
In the final part of his paper Harris criticises the way in which the HFEA, having given a “firm and consistent statement” of the liberal presumption that the state should not intervene in family life except to prevent serious harm, abandons this principle in the light of the public hostility to sex selection revealed by its consultation. This is the most important of his criticisms and in responding to it I should acknowledge that the discussion of this matter in the HFEA report is not as full as, in retrospect, was desirable. Harris begins by setting out some statements of the right to reproductive liberty from Robertson, Dworkin, and Savalescu. In doing so even he acknowledges that “there is no widespread agreement as to the nature and scope of this right”; so, on the face of it, even he should accept that he cannot just invoke this right in order to legitimate sex selection, since this is precisely an area in which there is no agreement concerning its scope. Indeed, if anything, the opposite is the case: the HFEA’s inquiries revealed very general agreement that sex selection for non-medical reasons should not be permitted. Of course, it is disputable what weight should be attached to this finding, and I shall return to this question. But it is worth emphasising here that Harris’s description of the HFEA inquiry as one which involved only “respondents to a consultation which necessarily samples a tiny fraction of the population” is misleading. As the report states, the HFEA’s inquiry had three strands: (a) several focus groups were gathered in different parts of the country (London, Edinburgh, Belfast, Cardiff, and Birmingham), involving people of different ages and from different social classes and ethnic backgrounds; (b) the HFEA commissioned a MORI poll of over 2000 adults, chosen by MORI to be as representative as possible from all across the country; (c) the HFEA itself produced a consultation document which was sent out to interested groups of all kinds and made available on the web; this attracted 641 replies, including 66 from organisations representing large numbers of people. And what were the results? Some details are in our report; more can be found in the appendices available from the HFEA’s website (www.hfea.gov.uk/Home). But, in brief, all three methods revealed deep opposition to sex selection, except where it was justifiable on medical grounds; and even that justification was often rejected. I myself was surprised by the extent of this opposition, which was by no means confined to religious groups. Even where the HFEA’s critics reject its recommendation they should at least accept this finding; it is wishful thinking to suppose otherwise.
It was certainly not the HFEA’s view, however, that this finding was by itself decisive; this claim is explicitly rejected in the report (in paragraph 147). But it did play an important role in our deliberations. Before explaining this role, however, I need to return to the issue of “reproductive liberty”. This liberty, like any other, is constrained by the requirement that its exercise should not pose a risk of harm to others, in particular to the children thus conceived; and it is worth noting that J S Mill remarks that for this reason the application of the principle of liberty to family life is not straightforward3:
It is in the case of children, that misapplied notions of liberty are a real obstacle to the fulfilment by the State of its duties. One would almost think that a man’s children were supposed to be literally, and not metaphorically, a part of himself, so jealous is opinion of the smallest interference of law with his absolute and exclusive control over them.
Thus it is here that most critics of unrestricted sex selection seek to make their case, arguing that where sex selection is undertaken without medical justification there is a likelihood of harm to children whose sex is thus determined.4 Harris, however, dismisses these arguments as mere “prejudices”, and, having thus dismissed them, he criticises the HFEA for invoking the public support for them as a reason for suggesting that sex selection should be restricted to cases where there is a serious medical reason for it.
But is Harris right to be so dismissive of public anxieties concerning this issue? The practice of sex selection for non-medical reasons would bring something altogether new to human reproduction, namely the possibility for parents to make a positive selection, for non-medical reasons, of the kind of child they are to have. Sex selection for medical reasons is typically negative: it is undertaken to enable parents to avoid having a child with a sex linked serious condition.5 The importance of the switch from negative to positive, and from the medical to the non-medical, is that it brings into focus the anxieties which attach to the term “designer baby”. Although there is no practical necessity which connects sex selection to selection for other characteristics which parents might seek, there are no good reasons for treating sex selection as a unique case. So the issue of sex selection has great symbolic importance in this context.6
A common theme of many of the responses the HFEA received was that the relationship between parents and their children would be distorted if parents were able to determine the sex of their children. Sometimes this point was expressed as the claim that sex selection would threaten the child’s “otherness”, its independence, and this claim points to a concern that motivated much of the public opposition to sex selection. The best elucidation of it that I know of is provided by Jürgen Habermas in his book The Future of Human Nature.7 Habermas argues that an essential ingredient of our conception of ourselves is that we should be able to regard our embodied character (Leibsein) as a natural phenomenon, and not something which has been, in some respect, deliberately imposed upon us by others, even by our parents. Of course, we must also recognise that in many ways we have been formed by the genes we have inherited from our parents; these genetic predispositions are, however, our bodily inheritance and there is no way in which a human being can be created without some such genetic inheritance. But where a fundamental characteristic such as one’s sex has been deliberately selected for things are different: a central aspect of the character of such a child has been deliberately chosen by the child’s parents—that the child be a girl or a boy. Unless its manner of conception is kept secret, which is itself ethically objectionable, the child will come to learn that it was deliberately created in a way which ensures that it is a certain kind of person—in a way which is so intimate and bodily that it cannot repudiate this mode of being, however much it might wish to do so. Thus there is an inescapable but alien intrusion into its subjective sense of itself.
One might well object that if this argument works at all it proves too much. For does it not imply that there is something objectionable about sex selection for medical reasons? Habermas, if I understand him correctly, does indeed draw this conclusion. But I think the implication can be rejected; for in such a case a daughter can internalise her parents’ wish that they should avoid having a child with a serious disease (for example Tay–Sachs), and accept that as a result she had to be a girl, without feeling thereby that she was selected because her parents had some positive preference for girls for their own sake. It was her parents’ choice that their child should be a daughter and in that sense her femininity is indeed imposed on her, but only as the consequence of an understandable negative choice. So she need not experience her feminine bodily character as the result of someone else’s positive design.
In drawing on Habermas in this way my aim has been to show that the objection to the exercise of reproductive liberty in this area is not just a matter of disputable empirical harms. The issue goes much deeper and concerns the child’s subjective sense of itself. Of course this too remains disputable. But when the matter is addressed on this level it is much less clear where the balance of argument lies between the proponents of reproductive liberty and the defenders of the independence of the child, and there was in fact no consensus among the members of the HFEA on this matter. Instead there was agreement that this is an issue where there are powerful arguments on both sides of the case, but also that neither side can seriously maintain that immediate serious harm is in prospect: this area of reproductive liberty is not fundamental to liberal democracy, as Harris ludicrously maintains; equally its exercise is not comparable to child abuse. Hence, with all the evidence described earlier which showed public opinion very largely on one side of the argument, the HFEA accepted that it was reasonable that public policy should be guided by this public consensus until the argument is further resolved. To do this was not to lamely capitulate to the “tyranny of the majority” in the way that Harris alleges; for the proponents of reproductive liberty among the HFEA did not share his elitist contempt for the grounds of public opposition to it as mere prejudice. We all felt that there is here a difficult judgement to be made as to which value should have priority—reproductive liberty or protection for the independence of the child; and since we found no way of resolving this issue dialectically, we recommended that public policy should for the moment be guided by the value which commands the support of the clear majority of the public.8