An Overview of Gender Selection
Gender selection is a term used to refer to the process of gaining control over whether an embryo, fetus, or baby will be male or female. Some people believe that selecting the sex of a future child is unethical. Others think the technology should be used to help prevent certain sex-linked or genetic diseases.
Currently, sex selection is easier than ever thanks to IVF (In Vitro Fertilization) and Preimplantation Genetic Testing (PGT). IVF is a process where an egg and sperm are combined to create an embryo and placed directly into the uterus at the time of embryo transfer. There are two types of IVF procedures; conventional insemination is where a mature egg is fertilized by a sperm without assisted reproductive technology, and intracytoplasmic sperm injection (ICSI), considered part of IVF, — where an egg is fertilized by injecting a single sperm into the cytoplasm of an egg .
PGT testing can be used in both IVF and ICSI. With PGT, embryos are screened and tested for specific chromosomal abnormalities (PGT-C) or sex-related genetic abnormalities (PGT-SR).
Separating the chromosomes so that you may choose the sex of your child is controversial. It is no surprise that many people do not agree with or support the process. Coupled with the fact that the process is expensive and not guaranteed, most people who select an embryo using IVF and PGT do it for a specific medical reason. For example, if there are sex-linked diseases running in a family. Others may consider the methods for family balancing – one boy, one girl, etc.
Legal Considerations for Gender Selection
Currently, there are no federal laws that specifically outlaw gender selection. However, several states, including New Jersey and Pennsylvania, have gone above and beyond the federal regulations and explicitly prohibit gender selection for non-medical reasons. In these states, physicians who offer gender selection services for non-medical reasons may lose their medical licenses.
States that do not have explicit prohibitions do have anti-discrimination laws, which may provide states an avenue to ban gender selection. For example, California is currently in litigation over gender selection. Until this litigation is resolved, California law is unclear.
Federal law addresses gender selection only to the extent that newly approved treatments must be proven safe and effective before they can be covered by Medicare and Medicaid. But neither Medicare nor Medicaid cover IVF, which is the only way that some gender selection methods can work. Thus, there is no federal law in the United States that restricts gender selection.
Ethics and Gender Selection
As with many cutting-edge procedures in modern healthcare, gender selection is not free of controversy. For some, the ethical debate can be summed up in one word: nature. Proponents of leaving behind the debate argue, however, that the decision of whether to intervene in a 50-50 process is purely up to an individual couple with the assistance of medical professionals. Michelle Loudis Becker, an attorney in New York who specializes in genetics and reproductive law, insists that allowing couples to choose the gender of their child should be an individual decision because every couple has their own definition of family. To them, Becker says, that could mean "having one girl and one boy, having two girls, or having two boys." Some in the medical community, however, argue that bias towards daughters or sons could create an imbalance in the population, making gender a desirable trait in the same way physical characteristics are now viewed. Others have claimed the medical community’s influence on families in areas such as in-vitro fertilization and stem-cell research has been too great, and that allowing gender selection will take medicine one step further into territory that should remain in the domain of nature. Doctors point to one study conducted in China, Pakistan, India and South Korea that showed a 3 to 10 percent disparity between the number of males and females at birth, and argue that the problem with this technology is that if it continues at a rate we’ve seen in recent years, there could be a result of 160 million more males than females in the next 20 years. The World Health Organization has reported that these same nations are witnessing a decade-long decline in gender equity in young women. Becker argues, however, that the technology is still very much voluntary, and that any such disparity is a public health issue where gender selection is not the cause. She points to no reports that gender selection is solely responsible for this disparity. If anything, Becker cites South Korea as a country implementing policies that have begun to shift the culture away from a preference for males. South Korean authorities recently announced a ban on ultrasound gender determination tests in order to combat bail preference. Critics of the technology, however, are arguing not against the technology itself but how it will be put to use by those in positions of power. Some allege that it will only be available to the wealthiest (or Middle and Upper-Middle classes) putting it out of reach of those of lower socio-economic status. Some claim that it will encourage larger families, particularly among the wealthy, while others predict it will worsen disparities. In the U.S., the American Society for Reproductive Medicine cautions against the use of gender selection technology for no medical reason other than to choose the sex of the child. Right now, however, the use of this technology comes down to two things: choice and money. Latest estimates place the average cost of the process anywhere between $15,000 to $20,000 per cycle and vary by clinic. If a couple has all the cash on hand, then they have the choice to make the decision.
Recommended Medical Practices for Gender Selection
When it comes to gender selection, the medical community is unified in position: it is ethically permissible in many situations. In fact, professional medical groups have been passing resolutions approving the use of gender preselection techniques in certain cases since they were first introduced in the U.S.
Back in 2001, the American Society for Reproductive Medicine and the Practice Committee of the American Society for Reproductive Medicine issued a revised consensus statement on gender preselection for nonmedical reasons. It stated: "The revised consensus statement [reaffirms] that gender preselection by at least a gender-linked method has been found to be ethically permissible when done for nonmedical reasons. In this context, both PGD [preimplantation genetic diagnosis] and sperm sorting are permissible. Similarly, ART specialists may perform these procedures when requested by patients primarily because they desire to increase their chances of having a child of a particular sex. With regard to sperm sorting, when such methods are employed, physicians and clinics should provide counseling on the potential risks and benefits associated with the use of the procedure, and they should ensure that the methods are performed in an FDA [Food and Drug Administration]-approved facility, if applicable."
In September 2004, the ASRM and the American Society for Reproductive Medicine published a statement also emphasizing that "the use of gender preselection for nonmedical reasons is ethically permissible."
Elsewhere, the American Institute of Ultrasound in Medicine has also been supportive of gender selection. "A recent opinion from the AIUM asserts that gender preselection is supported for those who desire a male child." Another study referenced by the ASRM report on the use of gender preselection concluded "that the use of sex preselection specifically to select an offspring of a particular sex was ethically defensible."
According to these professional organizations, the use of gender selection for medical reasons – such as to avoid passing on a genetic disease, to serve as replacement embryo for an unsuccessful cycle with the same sex – are also allowed, although ethical considerations in specific cases apply.
In any case, the group recommended that all clinics offering gender selection offer counseling to either the mother or the family.
Social Opinions and Cultural Influences
Gender selection has a rich variety of societal and cultural factors and historical background. In the West, as in most of the world, male children have been most valued for their ability to contribute significantly to family support and expansion. Evaluation of female children was less, and use of gender selection to avoid birth of females may have originated in this context, although use of technology to choose gender was nonexistent. In modern times, parents in the west may choose to be more sensitive regarding gender issues and therefore to want to ensure they have both genders in their family. There may be a greater concern that, in our modern society, where women are now more equal, if not more elevated, than men in many contexts, that choosing gender to achieve a preferred "balanced" family unit is a sensible and ideal use of gender selection . A 2008 poll stated that "63% of American adults say it would be morally acceptable for a couple to use an IVF process to choose a baby’s sex so they would have one of each gender" (www.gallup.com). While the use of gender selection to choose a female so parents can only have girls is far more common in China, in western cultures, similar economic incentives help us understand common use of gender selection for a preferred "balanced" outcome. Cultural attitudes toward gender selection also differ in the U.S. versus in other countries such as the UK, Canada and Australia. These other countries routinely prohibit gender selection in their jurisdictions due to the potential for social or ethical implication.
The Future of Gender Selection Legality
Legally, the future of gender selection in the United States remains a tenuous path. Although some countries permit sex selection for both non-medical and medical reason, the majority of countries that ban sex selection still allow its use for medical purposes. In addition to its use here in the United States, China, India, Singapore, Japan, South Korea and Taiwan also permit sex selection for medical purposes. As the demand for gender selection in the U.S. continues to flourish, the issue of legality will become an increasingly important topic for discussion. Increasingly, more clinics are either openly advertising the availability of gender selection or are discreetly offering the service to prospective patients. As evidenced by the 2010 American Society for Reproductive Medicine report, the use of gender selection continues to rise among patients. The report released by the ASRM indicated that the use of pre-implantation genetic diagnosis/ pre-implantation genetic screening increased 60% in 2009. An additional 18% of U.S. clinics indicate that the procedure is performed, despite the fact that 21% of respondents indicate that the practice was banned by such clinics. Some legislators believe that the growing demand for sex selection will ultimately drive change in its legality. Some predict a ban on both pre-implantation gender selection and sex selection. Moreover, many are concerned that the passage of such bans will increase the secrecy surrounding the procedure, similar to that of the clandestine abortion industry that flourished prior to Roe v. Wade. With potential bans, those seeking to evade the law may be forced to resort to black market sex selection services. Moreover, it is feared that a ban in some form will result in more expensive and safer alternatives from other countries, in turn encouraging American patients to seek these services abroad. A task force convened by the Society for Assisted Reproductive Technology is currently considering the legality of pre-implantation testing of embryos. The task force is expected to issue recommendations by March 2014. The recommendations of the body and any subsequent changes in law are anticipated to have a profound impact on the future of gender selection in the US.
Wrapping Up
Throughout this blogpost we explored the legality of gender selection in the United States. It is important to note that the procedures involved in gender selection, including preimplantation genetic diagnosis (PGD) and sperm sorting, are legal in the United States. It is not illegal for an individual to choose the sex of their child, provided the methods used to select the gender of the child are available within the United States, and the laws governing the process of gender selection do not restrict the legal right to select the sex of the child.
In this country, gender selection is now available to many individuals and couples . It can be employed as a family planning method for timing purposes or to balance an existing family. Others may be seeking gender selection for non-genetic medical reasons. Although we have identified the legalities surrounding the choice of gender selection, the conflicting social, political, religious or ethical debates may influence your decision. Furthermore, it is highly probable that local, state and federal law may also change in the future with regard to the legality of gender selection. This blog is not intended to offer medical advice, but rather to provide basic information regarding the legalities presently surrounding gender selection within the United States.