Bachelor of Arts/Bachelor of Laws V
The development of assisted reproductive technology (ART) has stirred up a whirlwind of ethical and legal dilemmas over the past few decades. Since the 1990s, medical technology has enabled in vitro fertilisation (IVF) patients to identify the sex of an embryo created by IVF. This technology is available in several Australian fertility clinics. In turn, it has become possible for patients to select to use or discard an embryo based on its genetic sex. This begs the question: should embryonic sex selection be allowed?
On 20 April 2017, the National Health and Medical Research Council (NHMRC) released revised Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (herein, “the ART Guidelines”). They form part of a framework that regulates the use of ART in Australia. The new ART Guidelines include provisions on “the selection and transfer of an embryo on the basis of genetic sex.” The ART Guidelines permit the use of embryonic sex selection for genetic reasons; that is, embryonic sex selection can be used to prevent the transmission of sex-linked genetic conditions, such as haemophilia and Duchenne muscular dystrophy. However, the ART Guidelines prohibit embryonic sex selection for non-medical purposes, such as family balancing. The NHMRC’s decision to uphold this prohibition, which has existed in Australia since 2004, has been embraced by some sectors of society and fiercely criticised by others.
This article will first explore the consequences of the new ART Guidelines for the regulation of embryonic sex selection in Australia through a comparison of the new and rescinded provisions, followed by a critical evaluation of the ART Guidelines and, in particular, whether the NHMRC’s decision to uphold the prohibition on embryonic sex selection for non-medical purposes is justified. In doing so, this article will consider various ethical and legal issues, such as reproductive autonomy, discrimination and “designer babies.”
II Sex Selection
Sex selection refers to the use of medical technology to identify and, in turn, choose the sex of one’s offspring.
Different sex selection technologies operate at distinct stages of the reproductive process. Ultrasounds, chorionic villus sampling and amniocentesis operate at the foetal stage of the reproductive process. These technologies identify the sex of a foetus, allowing patients to choose whether to continue with the pregnancy or to undergo a sex selective abortion. Preimplantation genetic testing (PGT) operates at the embryonic stage of the reproductive process. This technology determines the genetic sex of an embryo created by in vitro fertilisation (IVF), enabling patients to then choose whether or not to implant that embryo. Finally, sperm sorting techniques, which separate female (X-chromosome) sperm from male (Y-chromosome) sperm, facilitate sex selection at the pre-fertilisation stage of the reproductive process. Each sex selection technique raises subtly different ethical and regulatory issues. This article will focus on sex selection at the embryonic stage using PGT, as described above, and the specific issues it raises.
The technologies used in embryonic sex selection are expensive. According to IVF Australia, the upfront cost of an IVF cycle is $9,290; following Medicare rebates, the out-of-pocket cost of the first IVF cycle is approximately $4,501, with each subsequent cycle estimated to cost $3,945. PGT costs $700 per embryo and does not attract a Medicare rebate. Given these high costs, the accessibility of embryonic sex selection is a matter that predominantly affects middle to upper socio-economic classes.
III What are the ART guidelines?
The National Health and Medical Research Council was created in 1992. One of its functions is to investigate and issue guidelines on “ethical issues relating to health,” such as the use of ART. The Australian Health Ethics Committee, a multidisciplinary body of the NHMRC, develops the ART Guidelines, following research and public consultation.
IV The Importance of the ART Guidelines in Regulating Embryonic Sex Selection
In Australia, the general use of ART is regulated by federal legislation, state/territory legislation and the ART Guidelines. There are no federal legislative provisions about embryonic sex selection. Only four states (New South Wales, South Australia, Victoria and Western Australia) have legislation regulating the use of ART. Of these states, only Victoria and Western Australia have addressed the specific matter of embryonic sex selection, with both states prohibiting its use for non-medical purposes. Consequently, in most Australian states and territories the ART Guidelines are the sole source of regulation of embryonic sex selection.
Further, the accreditation of ART clinics in Australia depends on their compliance with the ART Guidelines. Without accreditation, ART clinics do not receive Medicare funding. Given this significant economic incentive, ART clinics are unlikely to ignore the ART Guidelines. Therefore, the ART Guidelines have a substantial practical impact on the use of ART in Australia.
V Understanding and Critically Assessing the New ART Guidelines
The rescinded ART Guidelines established a distinction between sex selection for genetic reasons and sex selection for non-medical purposes. The new ART Guidelines have maintained this distinction.
a) Embryonic sex selection for genetic reasons
The rescinded ART Guidelines allowed for the use of sex selection “to reduce the risk of transmission of a serious genetic condition.”
In the new ART Guidelines, Guideline 8.13 permits the use of embryonic sex selection “to reduce the risk of transmission of a genetic condition, disease or abnormality that would severely limit the quality of life of the person to be born.” There must be evidence that “the condition, disease or abnormality affects one sex significantly more than the other” and that “the risk of transmission is greater than the general risk of the condition, disease or abnormality occurring within the general population.” Further, the intended parent(s) must be provided with information and counselling that “promote(s) an environment of positive acceptance and non-discrimination” prior to consenting to the use of embryonic sex selection.
The new ART Guidelines have removed the arguably ambiguous phrase “serious genetic condition” and instead added a more comprehensive explanation of when embryonic sex selection for genetic reasons is acceptable.
The use of embryonic sex selection for genetic reasons is relatively uncontroversial. It has never been prohibited in Australia. Further, it is permitted in at least 30 other countries, such as Canada, China, India, the United Kingdom and the United States of America.In the public consultation on the Draft ART Guidelines, the AHEC sought comment on whether the “position on sex selection should be relaxed,” not whether it should be restricted. Accordingly, there was no realistic possibility of it being prohibited by the new ART Guidelines.
A principal concern regarding embryonic sex selection for genetic reasons is the potential for it to be used in an unethical and discriminatory manner. For example, during the public consultation period, Organisation Intersex Australia raised concerns about the use of embryonic sex selection to deselect intersex traits. The new ART Guidelines address this concern in two ways. Firstly, as stated above, Guideline 8.13 only allows for embryonic sex selection to reduce the risk of transmission of a genetic condition, disease or abnormality that would severely limit the quality of life of the person to be born.” It is unlikely that having intersex traits, in and of itself, meets this threshold. Thus, Guideline 8.13 does not allow for the use of embryonic sex selection purely to deselect intersex traits. Secondly, the new ART Guidelines address the risk of embryonic sex selection being used in an unethical and discriminatory manner by requiring the provision of information and counselling that emphasises non-discrimination.
b) Embryonic sex selection for non-medical purposes
In the rescinded ART Guidelines, the title of Guideline 11.1 was an unequivocal and forceful imperative: “Do not sex select for non-medical purposes.” Guideline 11.1 stated “the Australian Health Ethics Committee believes that admission to life should not be conditional upon a child being a particular sex.” It concluded that “…sex selection (by whatever means) must not be undertaken except to reduce the risk of transmission of a serious genetic condition.”
In the new ART Guidelines, the title of Guideline 8.14 is non-committal: “Sex selection for non-medical purposes is not currently supported.” This Guideline restricts the use of embryonic sex selection to the genetic reasons established in Guideline 8.13 until “wider public debate occurs and/or state and territory legislation addresses the practice.” It is preceded by a two page-long discussion of the Australian Health Ethics Committee’s considerations in creating Guideline 8.14, which notes “the AHEC’s majority view that there may be some circumstances where there is no ethical barrier to the use of sex selection for non-medical purposes.”
Embryonic sex selection for non-medical purposes re-emerges in the final chapter of the new ART Guidelines, entitled “Issues for further consideration in the clinical practice of ART.” Here, the AHEC encourages “further public debate and broad social and political discussion” on the matter. Further, the AHEC notes that it saw merit in allowing embryonic sex selection for family balancing reasons on a case-by-case basis, where “the intended parent(s) have (collectively) two or more offspring of the one sex and no offspring of the opposite sex.”
The effect of the new ART Guidelines is to maintain the prohibition on embryonic sex selection for non-medical purposes. However, the new ART Guidelines are far less forceful in prohibiting sex selection for non-medical purposes than the rescinded ART Guidelines, as evident in the structural and linguistic differences between the two. Further, the new ART Guidelines repeatedly allude to the possibility of the prohibition being partially lifted in the future.
The NHMRC has been criticised for subjecting the policy on embryonic sex selection for non-medical reasons to “wider public debate… and/or (future) state and territory legislation.” Professor Michael Chapman, the Vice President of the Fertility Society of Australia, criticised the NHMRC for “flicking the ball to the states.” This argument fails to understand the supplementary nature of the ART Guidelines, which are subject to state and territory legislation. The NHMRC has also received criticism for deferring to public debate. As argued by Dr Tereza Hendl, a bioethicist and postdoctoral research fellow at the University of Sydney, decisions on ethical issues should be informed by “research into benefits and harm from ethical, scientific and sociological perspectives,” not by popular opinion. Additionally, it is unclear how the “wider public debate” in question would be realistically facilitated.
i) Is the prohibition on embryonic sex selection for non-medical purposes justified?
The NHMRC’s decision to maintain the prohibition on embryonic sex selection for non-medical purposes reignited the debate about whether the prohibition is justified.
There is substantial support for the prohibition on embryonic sex selection for non-medical purposes. Indeed, the vast majority of countries with laws about embryonic sex selection prohibit its use for non-medical purposes. This prohibition can be justified for numerous reasons.
Firstly, there is a concern that allowing embryonic sex selection for non-medical purposes could perpetuate discrimination against females. In some countries, such as Albania, China, India, Israel and South Korea, sex selection technologies have predominantly been used to select male offspring. This has resulted in population imbalances and reinforced beliefs in the inferiority of women. Australian fertility specialists speculate that demand for sons and daughters would be broadly equal in the Australian context. Thus, it has been asserted that the aforementioned concern does not apply in Australia. In order to adequately alleviate this concern, there needs to be a systematic investigation into the sex preferences of Australians seeking sex selection for non-medical purposes.
Secondly, as posited by Dr Tereza Hendl, the desire to access embryonic sex selection for non-medical purposes is often based on “preconceived binary gender roles.” Various women interviewed by Dr Hendl who had used or intended to use embryonic sex selection “described [girls] as necessarily more family-oriented and more inclined to emotional connection, while boys were associated with independence and adventure.” Similarly, Sarah Williams, an Australian woman who travelled overseas to access embryonic sex selection, said of her desire to have a daughter: “you let yourself imagine a little girl, you know, being able to plait their hair and play Barbies with them.” As argued by Dr Hendl and Dr Tamara Kayali Browne, a lecturer in Health Ethics at Deakin University, allowing embryonic sex selection for non-medical purposes would affirm and perpetuate the gender binary and sexist gender roles. Further, it could facilitate children, born as a result of embryonic sex selection for non-medical purposes, being subjected to undue pressure to conform to such gender roles.
Thirdly, Dr Michael Gannon, the President of the Australian Medical Association, has raised concerns that allowing embryonic sex selection for non-medical reason would constitute a “slippery slope towards designer babies.” In other words, allowing individuals to select the sex of their offspring would open the floodgates to individuals seeking to select other non-essential physical characteristics, such as eye colour and hair colour. “Designing” babies has become an increasingly real possibility, with the development and refinement of CRISPR, a technology that enables human embryos to be genetically engineered. A number of experts have raised concerns about the eugenic undertones of “designer babies.” As convincingly stated by Dr David King, the founder of watchdog group Human Genetics Alert, “once you start creating a society in which rich people’s children get biological advantages over other children, basic notions of human equality go out the window.”
In the face of these justifications, several stakeholders – in particular, fertility clinics and individuals who have accessed or who intend to access embryonic sex selection for non-medical purposes – have offered arguments seeking to demonstrate that the prohibition is unjustifiable.
Firstly, it is argued that embryonic sex selection for non-medical purposes is not necessarily unethical. For example, it is commonly asserted that it is not unethical for a parent/parents with multiple offspring, all of the same sex, to select an embryo of the opposite sex to introduce more balance and diversity into the family (“family balancing reasons”). However, even if it is assumed that some non-medical purposes for embryonic sex selection are ethically acceptable, in practice, it is difficult to ascertain an individual’s true motivations for seeking embryonic sex selection. As acknowledged by the AHEC, “what is presented as a desire to introduce variety could conceal cultural and/or personal biases.” Thus, it is very difficult to ensure that the embryonic sex selection will only occur for ethically acceptable purposes.
Secondly, as argued by Dr Daniel Potter, a prominent US fertility specialist, the prohibition constitutes an infringement on women’s “reproductive autonomy.” This argument assumes that the right to sex selection forms part of women’s reproductive rights. However, this assumption is controversial. Domestic legislation in Australia neither explicitly nor impliedly recognises the existence of a right to select the sex of one’s offspring. Further, Brigit Toebes, a lecturer on International Law at the University of Groningen in the Netherlands, posits that a woman’s “right to reproductive choice,” as recognised by international human rights law, encompasses “a right to choose the number and spacing of one’s children, not the sex.”
Thirdly, embryonic sex selection is available for non-medical purposes in a few other countries, including the USA, Thailand and Mexico. Public submissions made to the NHMRC and media releases from fertility clinics indicate that a considerable number of Australians travel to these countries to access embryonic sex selection for non-medical purposes. It is asserted that, by compelling Australians to travel overseas to access medical technologies that exist in Australia, the prohibition exposes Australians to unnecessary inconvenience and expense, and to medical treatment that may fall below Australian standards of care. However, these arguments fail to recognise the agency of the aforementioned Australians, who voluntarily decide to travel overseas to access embryonic sex selection.
The arguments in favour of the prohibition convincingly highlight the risks and problems with allowing embryonic sex selection for non-medical purposes, whilst the arguments against the prohibition are somewhat flawed. Given this, the NHMRC’s decision to uphold this prohibition in the new ART Guidelines is justified and appropriate.
ii) The future of embryonic sex selection for non-medical purposes
The NHMRC’s reference to the future possibility of embryonic sex selection for family balancing reasons being allowed on a case-by-case basis constitutes an attempt to reconcile the divergent interests of stakeholders. The conciliatory effort of the NHMRC is commendable. However, embryonic sex selection for family balancing reasons should not be allowed a case-by-case basis. As explained above, allowing embryonic sex selection for family balancing reasons in any case serves to perpetuate antiquated and potentially harmful ideas about gender. Additionally, the assessment of applications for embryonic sex selection for family balancing reasons on a case-by-case basis would necessarily require the establishment of an independent monitoring body to undertake this task. The establishment and maintenance of this body would require taxpayer funding. As argued by Dr Gannon, it is more worthwhile to use limited taxpayer funding in areas such as Aboriginal health and mental health rather than to facilitate sex selection for non-medical purposes.
c) State and territory legislation
In the new ART Guidelines, the NHMRC repeatedly encourages states and territories to create uniform legislation addressing the general use of ART and the specific matter of embryonic sex selection. Indeed, the NHMRC has been justifiably promoting the creation of uniform national ART legislation since the 1990s, to no avail.
As expressed by the NHMRC, “state and territory governments are responsible for regulating the clinical use of ART.” The use of ART raises myriad complex ethical and legal issues, as evident in this case study of embryonic sex selection. These issues will not simply disappear with time; rather, they will become increasingly problematic and pressing. Therefore, the matters of ART generally and embryonic sex selection specifically deserve prompt attention from state and territory legislatures.
It would be unwise for states and territories to approach these matters individually. The result would be a confusing and inconsistent patchwork of legislation, the effects of which could be easily avoided by travelling between states/territories. Given this, it is imperative that Australian states and territories make a concerted effort to create uniform legislation about ART generally and embryonic sex selection specifically.
 Genea Fertility, Understanding preimplantation genetic diagnosis (2013) <https://www.genea.com.au/my-fertility/im-a-patient/pgd-genetic-testing>; IVF Australia, Pre-implantation genetic testing (2017) <https://www.ivf.com.au/fertility-treatment/genetic-testing-pgt>.
 National Health and Medical Research Council, Release of Ethical Guidelines on the use of assisted reproductive technology in clinical practice and research (2017) (20 April 2017) <https://www.nhmrc.gov.au/guidelines-publications/e79>.
 National Health and Medical Research Council, Ethical Guidelines for assisted reproductive technology (ART) (20 April 2017) <https://www.nhmrc.gov.au/health-ethics/ethical-issues/assisted-reproductive-technology-art>.
 National Health and Medical Research Council, Ethical Guidelines on the use of assisted reproductive technology in clinical practice and research (2017), E79, 20 April 2017, 69 <https://www.nhmrc.gov.au/_files_nhmrc/file/guidelines/ethics/16506_nhmrc_-_ethical_guidelines_on_the_use_of_assisted_reproductive_technology-web.pdf.>.
 National Health and Medical Research Council, Ethical Guidelines on the use of assisted reproductive technology in clinical practice and research, E56, September 2004 <https://www.nhmrc.gov.au/_files_nhmrc/publications/attachments/e56.pdf>.
 National Health and Medical Research Council Act 1992 (Cth) s 5B(1).
 Ibid ss 5C, 7(1)(a)(v).
 Ibid ss 35(3), 36.
 National Health and Medical Research Council, Ethical Guidelines for assisted reproductive technology (ART), above no 3.
 National Health and Medical Research Council, Summary of the major revisions to the 2007 ART Guidelines (20 April 2017) 6 <https://www.nhmrc.gov.au/_files_nhmrc/file/guidelines/ethics/summary_of_major_revisions1.pdf>.
National Health and Medical Research Council, Ethical Guidelines for assisted reproductive technology (ART), above no 3.
 National Health and Medical Research Council, Ethical Guidelines on the use of assisted reproductive technology in clinical practice and research (2007), E78, June 2007, 53 <https://www.nhmrc.gov.au/_files_nhmrc/file/health_ethics/e78_rescinded.pdf>.
 National Health and Medical Research Council, Ethical Guidelines on the use of assisted reproductive technology in clinical practice and research (2017), above no 4, 69.
 Organisation Intersex International Australia Limited, Submission No 37 to National Health and Medical Research Council, Ethical Guidelines for the clinical practice of ART – Part B of the Ethical Guidelines submission, 13 September 2015 <https://consultations.nhmrc.gov.au/files/consultations/oii-australia-pgt-2015.pdf>.
 IVF Worldwide, IVF – Sex selection (2008) <http://www.ivf-worldwide.com/education/introduction/ivf-regulation-around-the-world/ivf-sex-selection.html>.
 National Health and Medical Research Council, Draft Ethical Guidelines on the use of assisted reproductive technology in clinical practice and research: public consultation 2015 (15 July 2015) 56 <https://consultations.nhmrc.gov.au/files/consultations/drafts/artdraftethicalguidelines150722.pdf.>
 Organisation Intersex International Australia Limited, above no 22.
 Ibid 2.
 National Health and Medical Research Council, Ethical Guidelines on the use of assisted reproductive technology in clinical practice and research (2007), above no 18, 53.
 National Health and Medical Research Council, Ethical Guidelines on the use of assisted reproductive technology in clinical practice and research (2017), above no 4, 72.
 Ibid 70-72.
 Ibid 127.
 Ibid 127-128.
 Ibid 128.
 Ibid 72.
 Melissa Davey, ‘Sex selection: Medical Research Council criticised for not changing rules’, The Guardian (online), 20 April 2017 <https://www.theguardian.com/australia-news/2017/apr/20/sex-selection-medical-research-council-criticised-gender>.
 National Health and Medical Research Council, Ethical Guidelines on the use of assisted reproductive technology in clinical practice and research (2017), above no 4, 14.
 Emma Brancatisano, ‘Should you be allowed to pre-determine the sex of your child?’, Huffington Post Australia (online), 21 April 2017 <http://www.huffingtonpost.com.au/2017/04/21/should-you-be-allowed-to-pre-determine-the-sex-of-your-child_a_22048753/>.
 IVF Worldwide, above no 23.
 United Nations Population Fund, UNFPA Guidance Note on prenatal sex selection <http://www.unfpa.org/sites/default/files/resource-pdf/guidenote_prenatal_sexselection.pdf>.
 World Health Organization, above no 6.
 Susie O’Brien, ‘Gender selection of embryos through IVF to balance the family is abhorrent’, Herald Sun (online), 24 July 2016 <http://www.heraldsun.com.au/news/opinion/susie-obrien/gender-selection-of-embryos-through-ivf-to-balance-the-family-is-abhorrent/news-story/5942ecbc764d3d7320af506fe1a8a1ab>.
 Tereza Hendl, ‘Choosing children’s sex is an exercise in sexism’, The Conversation (online), 23 August 2015 <http://theconversation.com/choosing-childrens-sex-is-an-exercise-in-sexism-45836>.
 Lateline, The ethics of gender selection (7 February 2017) Australian Broadcasting Corporation <http://www.abc.net.au/lateline/content/2016/s4615971.htm>.
 Hendl, above n 44; Meredith Horne, ‘Gender stereotypes not good enough to support embryo gender selection’, Australian Medical Association (online), 5 May 2017 <https://ama.com.au/ausmed/gender-stereotypes-not-good-enough-support-embryo-gender-selection>.
 Hendl, above n 44.
 Adrian Rollins, ‘Sex selection a “slippery slope” to designer babies: Gannon’, Australian Medical Association (online) 2 August 2016 <https://ama.com.au/ausmed/sex-selection-%E2%80%98slippery-slope%E2%80%99-designer-babies-gannon>.
 Paul Knoepfler, The ethical dilemma of designer babies (October 2015) TED <https://www.ted.com/talks/paul_knoepfler_the_ethical_dilemma_of_designer_babies/transcript?language=en#t-16327>.
 Dan Smith, ‘US scientists, activists call for global ban on “designer babies” gene modification’, Australian Broadcasting Corporation News (online), 1 December 2015 <http://www.abc.net.au/news/2015-12-01/call-for-ban-on-human-genetic-modification/6988882>.
 David King, ‘Editing human genome brings us one step closer to consumer eugenics’, The Guardian (online), 4 August 2017 <https://www.theguardian.com/commentisfree/2017/aug/04/editing-human-genome-consumer-eugenics-designer-babies>.
 Shauna Anderson, ‘New laws are proposing to let parents choose their baby’s sex. And it’s the right thing for families.’, Mamamia (online), 25 July 2016 <http://www.mamamia.com.au/gender-selection-should-be-legal/>; Margaret Ambrose, ‘Gender selection: family balancing or vanity parenting?’, Herald Sun (online), 25 November 2016 <http://www.heraldsun.com.au/news/gender-selection-family-balancing-or-vanity-parenting/news-story/88a2b43382d09c1df6e92b445c4c8a05>.
 National Health and Medical Research Council, Ethical Guidelines on the use of assisted reproductive technology in clinical practice and research (2017), above no 4, 71.
 Jamie S. King, ‘Amercia’s role in sex selection’ on Stanford Law School Law and Biosciences Blog (9 October 2011) <https://law.stanford.edu/2011/10/09/americas-role-in-sex-selection/>.
 Brigit Toebes, ‘Sex selection under international human rights law’ (2008) 9 Medical Law International 197-225 <https://www.researchgate.net/publication/270487124_Sex_Selection_under_International_Human_Rights_Law>.
 IVF Worldwide, above no 23.
 Alana (Redacted), Submission No 3 to National Health and Medical Research Council, Draft ethical guidelines on the use of assisted reproductive technology in clinical practice and research submission, 17 September 2015 <https://consultations.nhmrc.gov.au/public_consultations/submissions/EGART/4643>; Gender Selection Australia, Success Stories and Media (2016) <http://www.genderselectionaustralia.com.au/success-stories/>.
 Brancatisano, above n 39.
 Rollins, above n 49.
 National Health and Medical Research Council, Ethical Guidelines on the use of assisted reproductive technology in clinical practice and research (2017), above no 4, 70, 114, 127.
 Ibid, 70.