The HFEA's Sex Selection Review

From 2002 to 2003, the United Kingdom's Human Fertilisation and Embryology Authority (HFEA) carried out a review of the available methods of sex selection, the central aims of which were, in the words of the subsequent report:

• To assess comprehensively the current state and likely future development of techniques for sex selection from social, ethical, scientific, technical, legal and regulatory perspectives.
• To review arrangements for their regulation.¹

  Human Fertilisation and Embryology Authority. Sex Selection: Options for Regulation. A Report on the HFEA's 2002–03 Review of Sex Selection Including a Discussion of Legislative and Regulatory Options. London: HFEA; 2003:paragraph 16.

The existing arrangements, set out in paragraph 5 of the report, brought “certain techniques for sex selection within the regulatory ambit of the HFEA whilst leaving others unregulated.”²

To be more precise: “natural” methods of sex selection—which include timing of intercourse, the use of certain sexual positions, and the following of particular diets, and which may be either unreliable or utterly ineffective—were, as might be expected, left wholly unregulated. Termination of pregnancy as a means of sex selection, regulated not by the HFEA, but under the Abortion Act 1967, was permitted only for medical reasons (that is, in order to avoid serious sex-linked conditions). Sex selection by preimplantation genetic diagnosis (PGD) was similarly permitted only for medical reasons, with the Human Fertilisation and Embryology Act 1990 requiring clinics wishing to perform the procedure to gain a license from the HFEA. Sex selection by sperm-sorting methods was unregulated where a partner's fresh sperm is used for insemination, but where donor sperm is used or where the procedure relies on in vitro fertilization was regulated by the HFEA and not permitted for either medical or nonmedical reasons. No use of regulated sex selection procedures was permitted for social reasons, that is, for nonmedical reasons such as “family balancing,” or a culturally, economically, or aesthetically motivated preference for children of a particular sex.

The HFEA's report on the review recommended only two changes to this regulatory framework, both of which were concerned with sperm-sorting techniques. First, it held that regulated uses of the flow cytometry method of sperm sorting should be permitted, though for medical reasons only, and subject to a license being granted by the HFEA. Second, it suggested that gradient methods of sperm sorting (which, unlike flow cytometry methods, appear to be of dubious efficacy) ought to be regulated and not permitted.³

Most significantly for the purposes of the current article, the report recommended that all use of regulated sex selection techniques for social reasons should remain prohibited.

The manner in which the Authority arrived at this conclusion about sex selection for nonmedical reasons has been the subject of some controversy. Perhaps the most vehement critic of the HFEA in this respect has been John Harris, who, in 2005, entered into an occasionally heated exchange on the topic with Thomas Baldwin in the pages of the Journal of Medical Ethics. Harris' claim was that, in reaching its conclusions, the HFEA had allowed itself, indefensibly, to be swayed by public opinion (or, at least, the opinion of those who took part in its review), where that opinion rested not on rational grounds but on mere prejudice and unwarranted hostility to sex selection. In effect, claimed Harris, ill-informed and badly argued public opinion had been allowed to trump the principle of reproductive liberty, itself an instance of the “democratic presumption” that “the freedom of citizens should not be interfered with unless good and sufficient reasons can be produced for so doing” (p. 292).⁴

Extra piquancy was added to the debate by the fact that, in addition to being a Professor in the Department of Philosophy at the University of York, Baldwin was at the time Deputy Chair of the HFEA. In what follows, I outline the nature of the HFEA's review, as well as recounting the main arguments marshaled by Harris and Baldwin.

The Nature and Findings of the Review

The HFEA's review undertook to meet its aims not only through surveys of the scientific and ethical literature, but also through a public consultation exercise. As a prelude to this consultation, the Authority organized focus groups in London, Edinburgh, Belfast, Cardiff, and Birmingham. The purposes of these groups were, first, to determine which of the issues surrounding sex selection were of particular concern to the public and, second, to allow the HFEA to gain an understanding of the language and concepts people made use of in addressing and discussing those issues. These findings then shaped the Authority's 39-page consultation document, published in October 2002, “helping to focus [it] on areas of identified controversy and presenting the arguments in an accessible form.”⁵

The finished consultation document⁶

was sent to 248 organizations, including various interest groups, religious organizations (such as the Church of England Board of Social Responsibility and the Catholic Bishops' Conference), fertility clinics, and National Health Service Trusts.⁷ It was also made available to members of the general public, both in hard copy and electronic form. In total, 641 valid responses to the consultation document were received. This qualitative research was supplemented by quantitative research in the shape of a Market and Opinion Research International (MORI) poll, which interviewed a representative sample of 2,165 adults.⁸

Not every organization that received the consultation document was satisfied with its format. Comment on Reproductive Ethics (CORE), a group that is perennially critical of the HFEA, submitted a response that made clear, in no uncertain terms, its unease about the document's wording. Indeed, the organization refused to complete the questionnaire that ended the document, claiming that “the questions asked are in the first instance highly selective, and then either deliberately directional or totally superficial in their scope.”⁹

It also claimed that,

CORE's objection to the expression “pro-life” here is, it has to be said, rather odd. First, “pro-life” is listed as an adjective in the Oxford English Dictionary, which is scarcely the most obscure or recherché reference work. Second, Josephine Quintavalle, CORE's Director—whose name, incidentally, appears at the bottom of the response—is a member of the Pro-Life Alliance, which describes itself as Europe's first pro-life political party. Presumably, then, CORE's real point is that responding organizations ought not to have been asked to reveal their nature, on the grounds that doing so might unfairly influence the way in which their responses were regarded (though one is forced to wonder how, for example, the Catholic Bishops' Conference of England and Wales might hope to disguise its status as a “religious and faith” organization).

For its part, the HFEA's explanation of the request to which CORE took such exception is that

It should also be pointed out that the categories under which the HFEA asked organizations to classify themselves were not restricted to “religious and faith” and “pro-life.” The full list of categories was:

• Clinical/scientific
• Consumer
• Religious and faith
• Other (please specify)
• Bioethical/social science
• Disability
• Pro-life¹²

  See note 6, Human Fertilisation and Embryology Authority 2002.

CORE's response was hostile to all sex selection, and it was by no means alone in expressing this viewpoint: As the HFEA reports, “many respondents took the opportunity to express their general disapproval of sex selection by any method and for any reason.”¹³

Respondents were, on the whole, however, more sympathetic toward sex selection being used for medical than for social reasons. Nonetheless, a majority (52.46%) of respondents held that sperm sorting should not be used for medical reasons. A much larger majority (82%) held that sperm sorting ought not to be used for nonmedical reasons, whereas 82.85% expressed the opinion that PGD should not be used in this way. Some 82.68% thought that sex selection ought not to be permitted for family balancing, and 85.06% that it ought not to be permitted for other social reasons.

The MORI poll delivered results that were notably more favorable to the notion of sex selection for medical reasons, with 65% of interviewees maintaining that it should be permitted, whether by sperm sorting or by PGD. However, 69% disagreed with the proposition that any parent should be able to choose the sex of his or her child. Only 16% thought that sex selection by sperm sorting should be permitted for family balancing, whereas just 18% held that selection by PGD should be available for the same purpose. Interviewees who thought that sex selection would be acceptable for other social reasons formed a still smaller minority.¹⁴

The report initially recommends that the flow cytometry method of sperm sorting be restricted to cases in which there will be a clear medical benefit, on the grounds that it carries a “theoretical risk” to resulting children. That is, the procedure involves sperm being subjected to laser energy, which is known to cause possible damage to DNA.¹⁵

Because flow cytometry is a “young” technology, no comprehensive studies on the long-term effects on children are yet available, though occurrence of birth defects has been shown in the United States to be no greater than in the general population.¹⁶ The HFEA makes it clear, then, that its assessment of the theoretical risks involved in flow cytometry is “more specific than a general fear of unknown consequences.”¹⁷ However, it becomes clear that the HFEA takes there to be independent reasons to reject any method of sex selection for nonmedical reasons.

In its penultimate paragraph, the report points out that its recommendation against permitting sex selection for social reasons has at least some of its roots in public opinion. That is, in addition to being concerned about the effects that such selection would have on the welfare of the resulting child, the HFEA was influenced by

As we will see shortly, it is just this feature of the report that Harris finds so objectionable: that public opinion should, regardless of whether or not it is sound, be influential in curbing citizens' reproductive liberty. This, argues Harris, is not only illegitimate, but is inconsistent with the report's own statement of the principle of reproductive liberty at paragraph 132. However, it should be noted that the HFEA is careful to point out in its report that,

In practice, it is clear from the report's conclusions that the HFEA did not regard all opinions expressed by the review's respondents to be equally weighty. It is, for instance, as Harris approvingly acknowledges,²⁰

dismissive of the opinion that allowing widespread sex selection would result in an imbalance of the sexes, even though it recommends that the situation be carefully monitored.²¹ It holds too that, although a number of respondents held that sex selection would be in conflict with divine will, “public policy in this area should be founded on wider considerations than those deriving from a particular set of religious beliefs.”²² And in recommending that sperm sorting by flow cytometry be made available for medical reasons subject to an HFEA license, it contradicts the view of the majority of respondents to the consultation document (though its view admittedly harmonizes with that of the majority of people interviewed in the MORI poll). Again, although a number of respondents had expressed the concern that using sex selection to avoid serious medical conditions is a form of eugenics and is an instance of wrongful discrimination against the disabled, the HFEA report disagrees.²³

Indeed, the only set of respondents' objections that the report appears to endorse are those that express concerns about the welfare of the resulting child and of his or her family (if describing them as “the most persuasive arguments for restricting access to sex selection technologies” can be counted as endorsement in anything more than a rather tentative sense). These objections voice worries that children may be psychologically damaged by the knowledge that they were selected for their sex; that they may, once born, be unacceptably “molded” to fulfill parental expectations; that siblings of the selected child may be neglected; and that selected children who turned out not to be of the expected sex may suffer as a result of their parents' disappointment.²⁴

Another objection along similar lines that emerged from the consultation was that sex selection would interfere with the “unconditional love owed by parents to their children,”²⁵ a view that, incidentally, receives a more rigorous philosophical defense in a 2005 paper by Rosalind McDougall.²⁶

It is not immediately clear whether the HFEA was, in its recommendation that sex selection should remain prohibited for social reasons, motivated only by this aspect of public opinion or whether it was also influenced by those aspects that it found less than compelling. At first sight, it may seem that the latter is the case, because the report claims that its conclusions were “particularly influenced” by considerations of children's and families' welfare and by the strength of public opinion against nonmedical sex selection. That might seem to suggest that the Authority's recommendation was influenced in part by the sheer weight of public opinion, even where it judged that opinion to be unsound. However, as we shall see later, Baldwin, in his reply to Harris, makes certain pronouncements that could at least be taken to imply that this was not the case.

Harris' Criticisms of the HFEA's Report and Baldwin's Responses

In his passionately argued paper “Sex selection and regulated hatred,” Harris opens his critique of the HFEA's opposition to sex selection for social reasons (or “simple sex selection” as he calls it) by focusing on the restriction of flow cytometry to cases in which there is a “clear medical benefit.” As we have seen, the HFEA supports this restriction by appealing to the theoretical risk that attaches to flow cytometry: The thought is that the existence of the risk renders the procedure inappropriate for cases of simple sex selection, regardless of any other objections to that practice. First of all, Harris characterizes the Authority's approach here as embodying an “absurdly high standard of caution,” because no medical procedure can realistically be said to be free of theoretical risk.²⁷

In his “Reproductive liberty and elitist contempt: Reply to John Harris,” Baldwin points out that, as noted above, the expression “theoretical risk” is employed in the HFEA's report with a very specific meaning.²⁸

The risk is theoretical, it seems, not in the sense in which the risks attendant on any medical procedure are, but because an essential ingredient in the technique—the exposure of sperm to laser energy—is known from other contexts to carry a real risk of damage to DNA. As already mentioned, the report states that the notion of theoretical risk is here “more specific than a general fear of unknown consequences”; it is not simply an overly risk-averse application of the precautionary principle. Harris complains that what is needed to warrant the prohibition of flow cytometry in simple sex selection is not a theoretical risk, but a “real and significant risk.” Although the HFEA does not assess the risk as being this great—if it did, it would presumably think more carefully before recommending its use for medical reasons—it nonetheless utilizes a more stringent notion of theoretical risk than Harris takes it to. It is perhaps not too wide of the mark to say that, in the context of the HFEA report, “theoretical risk” suggests a reasonable possibility of real and significant risk.

Baldwin's way of portraying this is to say that the risk of genetic defects arising in the resulting children is “serious enough to warrant caution.” Harris' response, in his paper “No sex selection please, we're British,” is that, if this claim is true, it contradicts the HFEA's claims about flow cytometry. That is, Harris finds in the report a rather “upbeat assessment of the safety of flow cytometry” (p. 286).²⁹

By way of illustration, he cites paragraph 121 as follows “However whilst potentially less intrusive, and with potentially lower risk to the health of patients, flow cytometry …” (Harris' emphasis). It has to be said, though, that there is something unsatisfying about this quotation. A reader of Harris' paper who does not have access to the HFEA's report might be forgiven for asking “Lower risk than what?” and “What does the quoted sentence go on to say about flow cytometry?”

Inspection of the report shows that flow cytometry is held to carry a lower risk than PGD. However, it should be noted that the claim is that the risk is lower to patients, and not to offspring (though one may wonder how the risk that a sperm-sorting technique poses to patients can be anything greater than zero). The theoretical risk involved in flow cytometry, on the other hand, is held to be a risk to the resulting children. So, the “upbeat assessment” of the technique's safety in fact attaches to a different person than does the theoretical risk.

As for what Harris' quoted sentence goes on to say, the sentence in its entirety is:

Now, considering this sentence, it seems that Harris will still have cause to complain that there is a mismatch between Baldwin's account of the risks of flow cytometry and the report's. This is because, Harris points out, Baldwin seems not to regard the risk as small at all, but as “serious”:

The paper from which this passage is taken marks the final contribution to the Harris/Baldwin exchange, so we do not have the benefit of hearing Baldwin's response. However, it seems pertinent to note that Baldwin does not characterize the risk involved in flow cytometry as “serious”; instead, he describes it as “serious enough to warrant caution.” And it is not obviously implausible to hold that a given risk can be both (a) sufficiently serious to warrant caution, but (b) not accurately describable simply as “serious.” Significantly, it could be argued that a risk that is serious enough to warrant caution might be of a level of seriousness that justifies its use in order to secure a medical benefit, but cannot license its use in simple sex selection cases. This, indeed, is precisely the HFEA's position. But it is a position that Harris does not agree with, and against which he deploys a particularly ingenious argument.

Suppose that any male offspring of a particular couple would stand a strong chance of suffering from some genetic defect D. To avoid such a child being born, the couple opt for sex selection by flow cytometry, greatly to raise the chances that they will produce a girl and, so, a child without D. This is just the sort of situation in which—and in which alone—the HFEA regards sex selection by flow cytometry to be ethically acceptable. Thus, Harris points out,

Because the HFEA portrays such a situation as one in which the parents are seeking a “medical benefit,”³³

Harris asks to whom precisely the supposed benefit accrues. It cannot, he suggests, be the female child, “since the avoidance of greater risks to different children is not something that can benefit the particular children who will be born as a result of the sex selection.” Nor can it be any unborn male child “saved” from the risk of being born with a serious genetic disorder, since it may be that, for that child, existence with such a disease might still be preferable to nonexistence.

That being the case, Harris concludes, the only benefit appears to be a public health or eugenic one, in line with a policy of producing “the best of all possible children in the circumstances.” Harris assumes, with substantial plausibility, that this is not a conclusion that the HFEA would be prepared to embrace.

Incidentally, and significantly for what follows, this is in some ways a rather strange argument for Harris to advance, because his own work has in the past suggested that the right reproductive choice is one that results in the birth of the child who, from a range of possible children, will be likely to have the best life. This is the case even though neither the child born nor the children whose birth has been prevented will benefit. And Harris explicitly maintains that a life without disability will be likely to be better than a life with disability (though it must be noted that this does not entail—and Harris takes great pains to insist that it does not entail—that people without disabilities are better than people with disabilities).³⁴

Be that as it may, Harris goes on to say that the only sense in which the selected child can be said to have benefited from her selection is the sense in which any child whose life is worth living can be said to have benefited from being born. That is, for this child the alternative to being selected would be not to have existed, and because for her existence is better than nonexistence (even given, let us suppose, the risks that attached to her means of selection), she has benefited. Now, despite this being the only way in which the selected child could coherently be said to have benefited from selection, Harris expresses his doubts that the HFEA would be willing to endorse it. That is because it would apply equally well to children born as a result of simple sex selection, that is, to children selected for their sex for nonmedical reasons. The unstated but nonetheless clear conclusion here is that, if flow cytometry is to be used for medical reasons, it ought also to be used for social reasons.

Baldwin insists that Harris' argument here is faulty, because it relies on the assumption that the HFEA's requirement to have regard for the welfare of the child entails that its policies must advance the welfare of some particular child (so, must benefit either the range of possible children whose birth is prevented or the child born as a result of selection). But this is not so, says Baldwin:

Baldwin goes on to argue that, in effect, what is being aimed at through selection for medical reasons is therefore what we might call the best outcome, where that best outcome involves the birth of the child, out of the range of children who could have been born, who will be likely to lead the best life.³⁶

Such considerations would not, Baldwin's argument runs, come into play where sex selection for social reasons is concerned. Two points are of particular note here. First, this is a course of action of the very sort that Harris himself argued for in his own earlier work. But second, that being the case, it would have been advisable for the HFEA to avoid use of the term “medical benefit,” because even if producing the child who will live the best life is the correct thing to do, it is not an action that can accurately be said to benefit any child.

In what Baldwin concedes to be the most important part of Harris' initial paper, an argument is advanced that claims that the HFEA's report subverts the principle of reproductive liberty, in favor of public hostility to sex selection for social reasons. Indeed, the principle of reproductive liberty is, as Harris points out, asserted and endorsed in paragraph 132 of the report:

Harris urges that this principle is extraordinarily weighty, rooted as it is in the “democratic presumption”—a presumption to be found at the heart of all liberal democracies—that the freedom of citizens ought not to be curtailed except where there is sufficient reason to do so (as when its exercise will infringe others' freedom or cause significant harm to others). He writes:

This last sentence is, of course, an attack on the HFEA's claim that its opposition to simple sex selection had been particularly influenced by the strength of public opinion. The legitimacy of this attack depends in part (but only in part) on whether the HFEA was, as mentioned earlier, influenced by all the grounds of public opposition that its review uncovered or only by those that it found to be compelling. As we have seen, the manner in which the claim is made might seem to suggest the former. However, in discussing the HFEA's decision in his paper, Baldwin refers only to considerations about the welfare of selected children and their families: the sole aspect of public opinion to which the report gave any real degree of credence. And if it is the case that these alone motivated the HFEA's recommendation, then it is the case that it was moved only by public opinions that it found independently persuasive or at least worthy of serious consideration.

Harris' criticism is not so easily escaped, however, because his position is that the Authority ought not to have found these opinions to have any force at all. He thinks that the public opinions by which the HFEA has been influenced are unsupported either by evidence or sound argument. This is a crucial point. Because the views focus on the possibility of harm coming to selected children and their families, if they could be shown to be genuinely compelling, then any prohibition of simple sex selection based on them would be justified by the principle of reproductive liberty. That is, in prohibiting simple sex selection, the state would be intervening “only to prevent serious harms.”

Harris thinks, in short, that there is no evidence that harm would accrue to selected children. All such claims amount, he thinks, to nothing more than prejudice and “reckless speculation.”

Baldwin has two responses to Harris' claim that public opinion has illegitimately been permitted to trump the principle of reproductive liberty. First, he argues that, despite what Harris says, there is a real case for the claim that simple sex selection could be harmful, insofar as it would tend to distort the parent/child relationship. To explain this point, he appeals to the work of the German philosopher Jürgen Habermas. Second, he gives an insight into the reasoning of the HFEA's members in choosing to be partially guided by public opinion.

Baldwin reports that respondents to the HFEA's public consultation frequently expressed worries about the impact on parent/child relationships that simple sex selection might have. Occasionally, he says, “this point was expressed as the claim that sex selection would threaten the child's ‘otherness,’ its independence.”⁴⁰

This concern, thinks Baldwin, captures the Habermasian view that we need to be able “to regard our embodied character … as a natural phenomenon,” that is, as something that simply occurs, rather than being deliberately imposed upon her.⁴¹

Harris is disdainful of Baldwin's recourse to what he calls Habermas' “mystical sermonizing.”⁴²

There appear to be two grounds for his scorn. First, he claims (with a zeal displayed by many analytically trained philosophers when faced with modern continental–European philosophy) that Habermas' points are made without regard for reason and evidence, and are presumably therefore to be disregarded. Second, he claims that Baldwin's (and Habermas') point here rests on a confusion. That is, the child who results from an act of sex selection cannot coherently claim that she has had her femininity imposed upon her. Her doing so would involve her assuming, absurdly, that had the act of sex selection not been carried out, she might have been a boy.

Harris' first point might strike even some analytically trained philosophers as rather uncharitable. That is, it is undeniable that Habermas writes in a style that many philosophers working in the Anglo-American tradition might find uncongenial. However, it seems wise, as a methodological starting point at least, to assume that those thinkers whom we do not immediately understand might nonetheless have a reasoned and reasonable point to make. As for Harris' second point, if Baldwin's argument really did hold that girls could have their femininity imposed upon them (or boys their masculinity, for that matter), then that would seem sufficient reason to reject it. However, although the way in which it is stated might incline us to take this as Baldwin's meaning, it is far from clear that we should. Indeed, Baldwin himself, in a footnote written in response to Harris' criticisms, denies that this is his claim. It is possible that the real key to understanding his (and perhaps Habermas') argument, lies in his frequent appeal to the threat that sex selection might pose to a child's independence. I find it not at all implausible to suppose that we have a fundamental need to regard our natures (and so our very selves) as not chosen by our parents, but merely accepted by them. At least, it seems to me that a reasonable argument might be constructed for this conclusion. And it is possible that Baldwin regards something like this point as underlying, albeit in an unarticulated form, much of the public's distaste for sex selection for social reasons.

Baldwin's account of the reasoning of the HFEA's members in choosing to be guided, in part, by public opinion proceeds in the following way. He starts by admitting that the debate between, as he puts it, “the proponents of reproductive liberty and the defenders of the independence of the child”⁴³

is particularly thorny and has powerful arguments on both sides. That being the case, and noting that public opinion was overwhelmingly behind prohibition of sex selection for social reasons, “the HFEA accepted that it was reasonable that public policy should be guided by this public consensus until the argument is further resolved.”⁴⁴

Further Developments

Interestingly, in 2005, the year in which Harris and Baldwin's exchange was published and two years after the publication of the HFEA's report, the U.K. House of Commons Science and Technology Committee published a report entitled Human Reproductive Technologies and the Law.⁴⁵

In a section concerned with the topic of sex selection, the report included the claim that the Committee's members could “find no adequate justification for prohibiting the use of sex selection for family balancing.”⁴⁶ It also held that the issue “requires greater analysis than has been afforded it by the HFEA,”⁴⁷ and that “the potential for harm is often quoted without recourse to a growing body of evidence of its absence.”⁴⁸ The Government response to these opinions was largely hostile, insisting that “the Government has no plans … to allow sex selection other than for compelling medical reasons.” Nonetheless, it included the promise to “seek wider public views on whether sex selection for family balancing purposes should be permitted, as recommended by the Committee.”⁴⁹

Those views were duly sought, as part of the Department of Health's review of the Human Fertilisation and Embryology Act. The public consultation closed in November 2005, and at the time of writing no report on it has yet been published. It remains to be seen whether the U.K. public will yet again display hostility to the notion of sex selection for nonmedical reasons and whether John Harris will pen another critique of governmental reliance on public opinion to the detriment of a principle of reproductive liberty.