4. L. Belkin, “Getting the Girl,” NewYork Times Magazine, 25 July 1999.

5. Ethics Committee of the AmericanSociety for Reproductive Medicine, “Pre-conception Gender Selection for Nonmed-ical Reasons,” Fertility and Sterility 75, no. 5(2001): 861-64, at 863-64.

6. See J.R. Botkin, “Ethical Issues andPractical Problems in Preimplantation Ge-netic Diagnosis,” Journal of Law, Medicine& Ethics 26 (1998): 17-28.

7. G. Kolata, “Fertility Ethics AuthorityApproves Sex Selection,” New York Times,28 September 2001.

8. Kolata, “Fertility Ethics Authority.”9. J.B. Youngner, “ASRM Position on

Gender Selection,” http://www.asrm.org/Media/Press/genderselection.html, accessed

1 October 2001.10. Kolata, “Fertility Ethics Authority.”11. Belkin, “Getting the Girl,” 28.12. A. Asch, “Prenatal Diagnosis and Se-

lective Abortion: A Challenge to Practiceand Policy,” American Journal of PublicHealth 89, no. 11 (1999): 1649-57.

13. R. Wachboit and D. Wasserman,“Patient Autonomy and Value-Neutrality inNondirective Genetic Counseling,” Stan-ford Law & Policy Review 6, no. 2 (1995):103-11, at 110.

14. Belkin, “Getting the Girl,” 29.15. Belkin, “Getting the Girl,” 38.16. Belkin, “Getting the Girl,” 28.17. C.W. Dugger, “A Claim to Help

Choose Baby’s Sex Sets Off Furor in India,”New York Times, 23 November 2001.

18. J.F. Burns, “India Fights Abortion ofFemale Fetuses,” New York Times, 27 Au-gust 1994; J.F. Burns, “New Chinese LawProhibits Sex-Screening of Fetuses,” NewYork Times, 15 November 1994.

19. Dugger, “A Claim to Help ChooseBaby’s Sex,” New York Times, 23 November2001.

20. Burns, “India Fights Abortion,” andBurns, “New Chinese Law.”

21. Burns, “India Fights Abortion,” andBurns, “New Chinese Law.”

22. J. Feinberg, Offense to Others (NewYork: Oxford University Press, 1985), 153.

23. Belkin, “Getting the Girl,” 38.24. Wachbroit and Wasserman, “Patient

Autonomy and Value-Neutrality,” StanfordLaw & Policy Review 6, no. 2 (1995): 110.

28 H A S T I N G S C E N T E R R E P O R T January-February 2002

While there has been a great deal of argumentabout whether sex selection for “nonmed-ical” reasons should be allowed, it is also

important to think about how we should manage suchservices in the event that they become more readilyavailable. These are pressing problems in the UnitedKingdom, which is likely to introduce a new policy onsex selection for nonmedical reasons.

I’m going to outline the way in which reproductivemedicine is regulated in the United Kingdom, then

show how sex selection for nonmedical reasons fitswithin the existing framework. After considering whatappear to be some of the bigger worries about sex se-lection, I’ll make some suggestions about how thesemight be handled by the U.K.’s regulatory framework.

The HFE Act and the HFE Authority

The Human Fertilisation and Embryology Act waspassed by the parliament in 1990 in response to

the recommendations of the 1984 Warnock report.The key thing that the act does is to provide the legalframework within which the Human Fertilisation andEmbryology Authority (HFEA) operates.

The British have taken a comprehensive approach to regulating reproductive medicine. A loophole in the

current law leaves some cases of sex selection uncovered; if that loophole were closed, however, the law is

robust enough to address the concerns about sex selection while permitting it in many cases.

Sex Selection in the United Kingdom

b y J O H N M C M I L L A N

John McMillan, “Sex Selection in the United Kingdom,” HastingsCenter Report 32, no. 1 (2002): 28-31.

H A S T I N G S C E N T E R R E P O R T 29January-February 2002

The act divides treatments involv-ing human gametes and embryosinto three categories. First, there aretreatments that are illegal.1 Second,there are treatments that are illegalunless carried out by a licensed clinic.The treatments covered here includethe creation of embryos in vitro,keeping embryos or gametes, placingany embryo into a woman, and, cru-cially, practices as may be specified inor determined in regulations.2 Final-ly, there are those treatments that arenot covered by the act and can law-fully be carried out without a license.Examples of such treatment includeartificial insemination using the hus-band’s sperm, and gamete intra fal-lopian transfer.

The HFEA publishes a code ofpractice for licensed clinics and in-spects clinics to en-sure that the stan-dards are met.3 Thiscode contains a clearstatement of theHFEA’s position onsex selection. It as-serts at section 9.9that “Centres shouldnot select the sex ofembryos for socialreasons,” and in thefollowing section that “Centresshould not use sperm sorting tech-niques in sex selection.” Thus the twotypes of sex selection that fall withinthe remit of the HFE Act are discard-ing embryos of the unwanted sexafter creating them through in vitrofertilization, and using sperm sortingtechniques in order to create onlyembryos of the wanted sex. It’s clearthat creating embryos for IVF is ille-gal unless it is performed by a li-censed clinic in accordance withHFEA guidelines, so sex selectionthat relies on pre-implantation genet-ic testing is ruled out.

What’s trickier is that reproductivetechniques which do not involve thecreation of embryos, the storage ofgametes, or the use of donated ga-metes do not require an HFEA li-cense. The HFE Act says that unli-censed clinics cannot, “in the course

of providing treatment services forany woman, use the sperm of anyman unless the services are being pro-vided for the woman and the man to-gether or use the eggs of any otherwoman.” In other words, an unli-censed clinic can legally provide re-productive services to a couple usingtheir own gametes, so as long as theservices don’t involve the storage orcreation of embryos. So while thecode of practice says that clinicsshouldn’t offer sperm sorting tech-niques, the code is guidance only forHFEA-licensed fertility clinics, and aclinic that is not licensed could offersuch services.

There have been reports that threeU.K. clinics offer sperm sorting tech-niques for the purpose of selectingsex. This issue is likely to become

much more pressing with the likelyintroduction of Microsort technolo-gies into the U.K. While previoustechniques were not very effective(anecdotally I have heard of clinicsguaranteeing a 50 percent successrate!), Microsort claims an averagesuccess rate of 90 percent for X-bear-ing (female) sperm and an average of73 percent for Y-bearing (male)sperm.4

The HFEA is currently reviewingthis loophole and is likely to try toclose it. It is possible that the HFEAwill make nonmedical sex selectionusing sperm sorting techniques per-missible within a licensed clinic, butgiven its strong opposition to it in thepast, and also the opposition of theBritish Medical Association, theHFEA will probably move to makethe practice illegal in the U.K.

Clearly the status quo is the worstof all worlds. At present, licensedclinics that are required to think care-fully about the appropriateness ofeach application for reproductivehelp cannot provide sperm sorting,while unlicensed clinics that are notbound by the same standards canprovide it. Surely the HFEA shouldremove this discrepancy; what ismore arguable is whether they makesperm sorting inaccessible altogether.

Objections to Sex Selection

Ithink that most of the objectionsraised against sex selection for non-

medical reasons are not strongenough to make it illegal, especially ifit is for the purpose of balancing afamily. But whatever one’s position

on these objec-tions, they are like-ly to be partly an-swered by the stan-dards that are al-ready in place forHFEA- l i c en s edtreatment.

One line of crit-icism is that sex se-lection could leadto an imbalance in

sex ratios. Legalizing these technolo-gies is unlikely to have this conse-quence, however.5 Both sperm sort-ing and preimplantation sex selectionare very expensive and will be beyondthe means of most people. They arealso both invasive techniques, andunless people have a strong prefer-ence for a child of a certain sex, theyare unlikely to want to employ them.

However, given the invasiveness,risk, and expense of these technolo-gies, we can’t help but ask why any-body wants to use them. It is verycommon for parents to hope thattheir next child will be a child of acertain sex, but usually they love anew child even if it isn’t of the sexthat they wanted. Given the strengthof the preference that somebodymust have to employ sex selectiontechnology, do we have reason to

So while the code of practice says that

clinics shouldn’t offer sperm sorting

techniques, the code is guidance only for

HFEA-licensed fertility clinics; a clinic that is not

licensed could offer such services.

30 H A S T I N G S C E N T E R R E P O R T January-February 2002

doubt the rationality or appropriate-ness of their preference?

I think we need to be carefulabout accepting or rejecting stronglyheld preferences of this kind. Thereare good grounds for doing what wecan to ensure that people know whatthey are getting into and are given theopportunity to think through theirreasons for wanting sex selection. It’salso important for all reproductivetechnologies that people considercarefully the implications of the suc-cess or failure of proposed treatment.The HFEA Code of Practice goes aconsiderable distance toward dealingwith these issues. Registered clinicsare required to employ an appropri-ately qualified counsellor to discussthe implications of an intervention.One of the important functions ofthis requirement is encouraging peo-ple to think through the implicationsof having a child using donated ga-metes; it could also be an importantsafeguard against people embarkingon sex selection treatment when, forexample, they are still grieving overthe loss of a child.

There might be more difficultcases in which we have reason tothink that the environment that asex-selected child will be born into isone that will disadvantage the childin very significant ways. For example,if a couple’s reason for employing sexselection is that they do not like chil-dren of a certain sex, then we mightthink that any child brought intosuch a family will be exposed to inap-propriate attitudes and social rolemodels.

But here again we might turn tothe standards that are already in placefor considering applicants for fertilitytreatment. Perhaps the single mostimportant requirement for employ-ing licensed fertility treatment in theUnited Kingdom is that the treat-ment’s implications for child welfarebe considered. Fertility clinics shouldnot provide fertility treatment unless“account has been taken of the wel-fare of any child who may be born asa result of the treatment (includingthe need of that child for a father),

and of any other child who may beaffected by the birth.6

This proviso has been the subjectof some controversy, with a numberof different views about how itshould be interpreted. Lawyers IanKennedy and Andrew Grubb havegone so far as to describe it as “inco-herent” and “nonsense.”7 Yet it is oneof the most important factors rele-vant to whether an application forfertility treatment is likely to be suc-cessful. Licensed clinics are requiredto consider any risk of harm from ne-glect or abuse to any child who maybe born. They must take steps to en-sure that the patient’s general practi-tioner does not know of any reasonwhy treatment should not be offered.They must also consider the parents’ability to provide a stable and sup-portive environment for a child pro-duced through the treatment. Theserequirements mean that if applicantsfor sex selection techniques did havea very unusual motivation, therewould be reasonable grounds for ask-ing hard questions and possibly evendenying access to treatment.

It could also be argued that sex se-lection is problematic because it mayserve to reinforce or legitimate sexistattitudes. People who have a prefer-ence for a child of a particular sexmight be seen as implicitly believingthat a child of the desired sex is morevaluable. Further, because the HFEArequirements are fairly individualis-tic, focusing on the implications forthe family concerned, they would notbe sensitive to wider issues such asthis.

There are a number of responsesthat can be made to this worry. First,it doesn’t follow from the fact that acouple wants a child of a certain sexthat their desire is the result of sexistattitudes. Indeed, a preference for achild of a certain sex does not implyany view about the value of that sexin general. Many people want a childof a certain sex simply in order to bal-ance their families. Another responseis that we consider applications forother reproductive technologies in a

similarly individualistic manner, whyshould sex selection be any different?

There are also slippery slope wor-ries about sex selection: if the HFEAallows licensed clinics to provide sexselection by Microsort, then it mightnot be easy to deny access to sex se-lection by means of preimplantationembryo testing. There are of coursesome significant differences betweenthem in terms of risk, and only thelatter involves discarding unwantedembryos. The worry is that they aresmall differences with which to drawa firm line in the sand. Further, oncewe have accepted preimplantationembryo sex selection for social rea-sons, we might have trouble redraw-ing the line at sex selection and ex-cluding selection for traits such as eyecolor and hair color. The problem isthat the distinctions we are relying onseem liable to collapse if we pushthem hard.

Yet we already control reproduc-tive medicine with some fairly fine-grained distinctions, for example thedistinction between payments for do-nated gametes that are “induce-ments” as opposed to “compensa-tion.” It is the job of public policy-makers such as the HFEA to halt theslide down such slippery slopes.

The Way Forward

If the United Kingdom is to contin-ue allowing access to sex selection

for nonmedical reasons, the serviceshould be subject to the checks andbalances that are required in order forclinics to gain HFEA approval. Be-cause one of the most important ofthese requirements is that clinics con-sider the welfare of the children thatmight be produced, the existing re-quirements go some way toward en-suring that sex selection would be de-livered in an appropriate way. Someadditional helpful rules are suggestedby Microsort’s own requirements.Microsort will provide selection forsocial reasons only when the appli-cants are married, have at least onechild, and want to select for the sexthat is less common in the family.8

Adding these conditions to the pre-sent guidelines would eliminate po-tential abuses of the technology.

It is important to bear in mindthat applicants for these technologiesare likely to be reasonable people whowish to promote their and their fam-ilies’ happiness by having control overthis aspect of procreation. Coupleslike Louise and Alan Masterton, whowere refused access to sex selectiontechnology by the HFEA after losingtheir only daughter in a fire.9 Theirrequest seemed like a reasonable re-quest and one which many peoplecould imagine making in similar cir-

cumstances. While there is a case forbeing cautious about sex selection forsocial reasons, we need a good reasonfor saying no.

Acknowledgments

I’m indebted to Brenda Almond,Greg Kaebnick, and Anne Slowther fortheir help in preparing this article.

References

1. I. Kennedy and A. Grubb, MedicalLaw (London: Butterworths, 2000), 1222.

2. Human Fertilisation and EmbryologyAct 1990 (Norwich, UK: The StationeryOffice, 1990), section 8.

3. Human Fertilisation and Embryology

Authority, Revised Code of Practice, Fifth Edition 2001. Available atwww.hfea.gov.uk/.

4. “Microsort Current Results,” atwww.microsort.net/.

5. D. McCarthy, “Why Sex SelectionShould Be Legal,” Journal of Medical Ethics27, no. 5 (2001): 302-308.

6. Human Fertilisation and EmbryologyAct, section 13(5).

7. I. Kennedy and A. Grubb, eds. Princi-ples of Medical Law (Oxford: Oxford Uni-versity Press, 1998), 564.

8. “New Patient Enrollment Criteria,” atwww.microsort.net/.

9. S. Gottlieb, “US Doctors Say Selec-tion Acceptable for Non-medical Reasons,”British Medical Journal 323 (2001): 828.

H A S T I N G S C E N T E R R E P O R T 31January-February 2002