Today the Human Fertilisation and Embryology Authority (HFEA) has launched the outcome of a year-long enquiry into sex selection. The main recommendation of the HFEA's report, 'Sex selection: options for regulation', is that the existing ban on sex selection for social reasons be upheld. Given that the HFEA already regulates the creation and use of human embryos outside the body, a ban on social sex selection of embryos is well within its competence and remit. However, the HFEA does not currently regulate any activities which use fresh sperm. In order to stop social sex selection using sperm sorting, therefore, the HFEA is recommending a new act of parliament and an extension of its regulatory remit to include the use of fresh sperm.
For members of the public, who seem largely to support a ban on social sex selection, the HFEA's recommendation that embryo screening and sperm sorting be regulated seem perfectly sensible. But for those more familiar with the existing laws governing IVF and embryo screening, the proposal to widen the HFEA remit is more worrying. In the questionnaire that formed part of its public consultation, the HFEA asked whether respondents agreed with the statement 'Sperm sorting should be regulated in the UK by the HFEA'. Of the 600 respondents, the majority of which were individuals or organisations associated with IVF in one way or another, 47 per cent agreed, 39 per cent disagreed and 13 per cent did not respond. When the HFEA, in its press release, said that there was 'overwhelming support for sex selection techniques to be regulated', it didn't factor in the rather more luke-warm reception to the idea from other quarters.
So what is the potential problem with an extension to the HFEA regulatory remit? When the Human Fertilisation and Embryology (HFE) Act was passed in 1990, it was done so with the aim of permissively regulating IVF treatments and human embryo research. Only a handful of activities (such as creating chimera embryos) were specifically prohibited, leaving all other activities using embryos or donated eggs and sperm to be monitored by the HFEA. If a new act of parliament were to be drawn up with the aim (explicit or otherwise) of stopping social sex selection by sperm sorting, its aim would be prohibitive rather than permissive. As such, its tone and purpose would be very different from the legislation which brought the HFEA into being.
Changing its style of regulation is one thing. But there is another problem with extending the HFEA remit. Where will it stop? Just imagine that it becomes possible to determine the sex of one's child by taking a pill. Will the HFEA seek to regulate that too?