Australia upholds the ban on sex selection: a partial victory in an ongoing struggle

Australia recently saw important developments in the field of assisted reproductive technologies, as the National Health and Medical Research Council (NHMRC) released its revision of the Part B of the Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research. Among other topics, this section is concerned with the regulation of sex selection and the use of prenatal genetic diagnosis for embryonic selection.

The Guidelines uphold the ban on sex selection for non-medical reasons in Australia. This is a good step because selecting children’s sex based on gender preference has the potential to reinforce sexism. Studies exploring parent’s motives for sex selection in countries such as the US, UK and Australia show that these parents desire children of a particular sex because they assume that they will have a particular gender-specific personality, traits and characteristics. Typically, chromosomally female children are expected to be more attached to the family, understand emotions, and have a close relationship with their mothers, while chromosomally male children are expected to be more adventurous, self-centred and independent. Hence, parents who (desire to) select their children’s sex assume that these children will behave in stereotypically feminine/masculine ways.

The troubling nature of gender stereotyping is, to an extent, recognised by the Guidelines as the NHMRC claims that it 'does not endorse, nor wish to perpetuate, gender stereotyping, or cultural or personal biases based on biological sex'. This is a crucial ethical position in a liberal democracy where sex should not be a basis for gender bias.

However, the NHMRC also states that it 'saw merit in permitting access to activities to select the sex of a human embryo prior to embryo transfer to introduce variety to the sex ratio of offspring within a family'. This approach seems rather inconsistent and confusing, even more so as the NHMRC does not provide ethical reasoning or any evidence supporting their acceptance of sex selection for 'the variety in sex ratio'.

The lack of justification for the NHMRC’s value-laden position is startling, particularly because the 2007 Guidelines held that 'admission to life should not be conditional upon a child being a particular sex' and stated that sex selection can only be used for the prevention of the birth of a child with a serious genetic condition. In the light of this, we should ask what has changed in the last ten years that would make a form of sex selection for social reasons ethically acceptable?

The following answer does not provide support for the NHMRC’s increasingly permissive position. Contemporary research on sex and gender provides scientific evidence that these categories are more diverse and fluid then we tend to think, and the relationship between them is complex. A significant part of the population does not fit traditional binary assumptions about sexed embodiment, such as individuals with intersex variations, and gender, such as transgender or gender diverse individuals. Furthermore, the existence of people who do not identify with the gender assigned to them at birth and/or identify as gender diverse or gender nonspecific suggests that gender does not unambiguously follow from biological sex. If anything, this evidence should challenge claims that sex selection for 'the variety in sex ratio' deserves merit.

As previously said, parents desire children of a particular sex because they want them to fit into a particular gender role, not because they want children with certain biological sex traits or genitalia. In this regard, sex selection for variety in 'sex ratio' (read gender) does not create actual variety because it does not give children the space to develop in gender nonconforming or nonspecific ways. As parents desire children of 'both sexes' because they assume that sons and daughters are essentially different, sex selection for 'variety' is grounded in gender essentialism. As such, it limits children’s opportunities to develop more freely, disregarding gender. By doing so, sex selection can harm children by hindering their flourishing as well as reinforce sexism in society.

It is important that the recognition of actual diversity in sex and gender informs debates about assisted reproductive technologies. Unfortunately, the language of the current Guidelines suggests that the NHMRC does not pay enough attention to the existing diversity in the Australian population. The Guidelines are written in a way that presumes that all children are born male or female and live within the boundaries delineated by binary sex-gender roles. So while it is good that the current Guidelines keep the ban on sex selection for non-medical reasons, the NHMRC has a long way to go to catch up with recent science in sex and gender and the lived experiences of people who do not fit traditional assumptions about these categories.

The inconsistencies, oversights and lack of ethical analysis at the heart of the policy on sex selection are worth attention because they have the power to shape future debates about the practice. Strikingly, the NHMRC states that the major reasons for continuing the ban on sex selection for non-medical reasons are the lack of support for the practice among Australians, and the fact that the practice is currently illegal in two states. It is troubling that a key regulatory body bases decisions about ethics and policy on popular opinion and existing (changeable) laws. Such important decisions should be based on a robust ethical analysis and informed by current research. From this point of view, important discussions about sex selection are yet to happen in Australia.