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Debate Club
DEBATE CLUB 3/27/06

Choosing Your Child's Sex?

John A. Robertson and Barbara Katz Rothman debate.

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In the United States, some people planning to have babies now select the gender of their future child, especially immigrants from China and India, who favor males when they already have a child. Though gender is only one of many genetic characteristics that parents can choose for their children, gender discrimination is unusual because it is broadly prohibited in other areas of law. Advances in technology may soon require us to consider whether those laws—or concerns not yet written into law—restrict selecting a child's gender in the first place.

Should it be unlawful for parents to select an infant's sex through abortion or in vitro techniques and, if so, under what circumstances should it be legal?


John A. Robertson holds the Vinson & Elkins Chair at the University of Texas at Austin School of Law, where he specializes in Law and Bioethics. Barbara Katz Rothman is a Professor in the Ph.D. Program in Sociology at the City University of New York.

Robertson: 3/27/06, 06:52 AM
Roe v. Wade sets no limits on the reasons for abortion, and compared to abortion, non-medical sex selection will continue to be relatively rare unless preconception sperm separation or pre-implantation screening of embryos is certified as safe and effective. Despite this pragmatic difference, the very idea of using high-tech means of picking the sex of children brings forth jeremiads across the political spectrum in yet another example of how new-fangled reproductive techniques are threatening the old verities.

It's easy to see why conservatives object, but for liberals the issue is much harder. On the one hand, we prize individual autonomy and reproductive choice. On the other hand, even liberals recognize the perils of overly technologizing reproduction, children's lives, and parenting. Can we climb into bed on this issue with pro-lifers and family traditionalists and still retain our self-respect in other battles?

What is a poor liberal bioethicist to do? I'm going to ride the harm principle—that liberal workhorse—and see if I can lasso some workable distinctions to carry us through. So let's talk only about sex selection for gender variety or family balancing, e.g., to have a child of the sex opposite of existing children, and leave aside the more contentious and dangerous use of pre-pregnancy techniques for the first child.

What can be wrong with enabling a family with three boys from having a girl (or one with three girls from having a boy)? Or with allowing two-child families to have one of each flavor? Most people won't care, but some will find their family life enriched with children of both sexes, particularly if they have already had more than one child.

Such desires need not be sexist. Rearing children of different genders enriches the mix for parents and siblings. Nor are parents with such desires more likely to push the selected child into an all-blue or all- pink cookie-cutter version of gender stereotypes, any more than they would cram children born naturally into such a mold.

Sure, there are other ways to think of the issue, and they will work well for individuals who prefer that reproduction be thoroughly au naturel or that our families be like those of our parents and grandparents. Neither should we impose on physicians if they chose not to take part in procedures that determine a child's sex. When we are talking about law or even professional society guidelines, however, I want to side with the family that wishes to have the different experience of raising a girl rather than another boy—at least until you show me significant harm from their doing so.

If my liberal blinders have left me oblivious of what really counts, I am sure that Barbara will set me straight. But I challenge her to consider the difference between the public and the private realm—between what may be legally and professionally available and what should be beyond the pale of family and professional choice.

Telling me that having children is never private won't do. We allow people to have children all the time, whether by laboratory or natural conception, without vetting their reasons or stopping them because of speculations about the child's welfare. Surely, Barbara, we don't want to start down that path now, just because some parents want to raise a girl in addition to one or more boys.

Katz Rothman: 3/27/06, 02:10 PM
I'm not going to be speaking in favor of using the law to handle this. The law is a very blunt instrument, and not at all suitable to the problem at hand.

But John, it is a problem—don't kid yourself about that.

I'm not about to argue against "choice," against any woman's right to have an abortion at any time for any—or no—reason. That doesn't mean I'm not saddened and distressed when the much-talked-about hypothetical poor rural Indian woman 'chooses' to abort her third daughter, or when the oft-discussed hypothetical American woman 'chooses' to abort a child who would have a disability our society finds ugly or unpleasant. I'll support her right to do what she wants to do; I won't give my support to a society that makes that a reasonable choice.

John, you tell us the desire to have a child of one or the other sex, or actually of one and the other sex, is not "sexist." What could that possibly mean? Sexism is about discriminating on the basis of sex. To want a girl rather than (another) boy or a boy rather than (another) girl is to say that you think the child of the other sex will give you a different parenting experience. My father wanted a son so he could take him fishing; he took me fishing when I was five and said "never mind, it doesn't matter." His need for a son disappeared when he saw the individuality of the child. Why does anyone want specifically a boy or a girl? To admire their genitals? I don't think so. It's to have a child who will bake cookies or go fishing, enter the family business or raise grandchildren, cuddle and have long talks or go out and make you proud—a child who will "do gender." Every time we recognize, acknowledge, and respect that choice, we are underscoring that boys can give a parent one kind of experience; girls another. What could that be but sexism?

To the extent that we are still living in a society that does make having a girl such a different experience than having a boy, that is the problem I'd like to be addressing.

So I'm not going to argue for laws against sex selection. But I'm not going to place sex selection under the logical rubric of "reproductive choice," equating this with the right of a woman to end a pregnancy she does not want. The liberal paean to the glories of choice and autonomy, the language of the marketplace, is not useful here. Parenting isn't a shopping expedition.

And you know, John, children don't actually come in "flavors."

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Robertson: 3/28/06, 06:48 AM
Well, Barbara, you've reassured me that you too are a good liberal who doesn't want the government mucking about in people's reproductive and family lives, even if people sometimes make choices that we don't like. As long as we are not talking about a law against non-medical sex selection, I am happy to discuss the moral or social implications of such a practice.

With the law put to one side, it might help to think in terms of whether professional guidelines for fertility doctors should allow them to use sex selection techniques for the family balancing/gender variety purposes mentioned in the first post. The American Society for Reproductive Medicine is split on this issue, yet some programs, such as the Baylor program that you describe so well elsewhere, is collecting data on participants.

I agree with you that the issue comes down to whether doctors offering family balance sex selection are helping or hurting women and children. When only family balancing is involved, I have trouble seeing how women are hurt. If "sexist" means any use or consciousness of sex, then you are right that sex selection is always and necessarily "sexist." But if"sexist" means practices that hurt women—the way I was using the term—then I don't see any harm to women in allowing them to choose to have a girl after having a boy (or vice versa). They are free to make the choice or not, and might have good reason for wanting to the different experience of raising a girl/boy after having raised one of the opposite sex.

You're right that children don't come in"flavors," as I snidely suggested, but even Justice Ruth Bader Ginsburg in her strongly feminist opinion in the Virginia Military Institute case stated that "the two sexes are not fungible," that "inherent differences between men and women, we have come to appreciate, remain cause for celebration."

So what's wrong with a couple wanting to have a girl, once they have had a boy? They can teach her fishing as well as a boy and a boy cooking and vice versa. Or more likely, use their own contextualized values and personal family histories in a loving and nurturing relationship way with the child. Unless you can show some harm, you are back to the Leon Kass/Robert George/Michael Sandel position that children are "gifts" and not to be chosen in any way at all. That is a respectable traditionalist position, and you are free to take it. But if you are trying to persuade me or others that we should adopt that value please give me something more to hang my morals on than an ipse dixit about what is right.

As a good liberal, I also want the well-being of children protected. I just don't see how they are harmed by parents and doctors being free to make such arrangements. In the relatively few cases in which family gender balance will be sought (it is complicated and expensive to do), I suspect that the couple will usually has a good personal reason for doing so. I'll leave for a later post whether allowing sex selection for the purpose of family balance will inevitably lead to selection of the first child—a different kettle of fish altogether.


Katz Rothman: 3/28/06, 03:57 PM
Well now that we've managed to put the law aside, let's try to put aside the moral issues too, and focus on the social issues. As a sociologist, that's certainly where I'm most comfortable.

You say that you agree with me that "the issue comes down to whether doctors offering family balance sex selection are helping or hurting women and children." I didn't say that, and I really don't think that's what it comes down to at all. I think what doctors do or do not "offer" is not terribly important: sex selection is being done with what has come to be thought of as fairly low technology. You don't need a medical degree to use or read an ultrasound, and you don't need one to do an abortion. So sex selection, for balancing or for male preference, is being done all over the world, including the United States, with or without the help of physicians.

But the key part of your statement was, I assume, the question of harm—what you said you'd be hanging your nice liberal hat on in the first place. The problem I have then is a kind of sleight of hand, which by focusing entirely at the level of the individual, makes it look like no one is harmed: women get 'choice,' and children get created. There is no room for a discussion of the enormous social harm that can be done as gender differences are further reified and publicly endorsed.

In this "more choice is better" argument, the children that are never created (whether as fetuses aborted or embryos unselected or sperm washed away) can hardly be said to be harmed by the fact of their non-being. So then there are the children who are "chosen," the selected ones, chosen for their sex. I think there really is the potential for harm there—any time we give parents reason to think they can control the kind of people their children are, I think we are doing damage to the child, the parent, the relationship. You seem to think it just won't matter—that parents who went to some time, trouble and expense to deliberately create a boy-child or a girl-child will be perfectly OK with whatever gender-bending behavior that kid engages in. Am I right, or are you? The Baylor study is talking about a few years of follow-up. Kindergarten, let alone nursery school, is hardly the key moment in gender-rebellion or sexual experimentation. So yes, if we think we should know about the potential harm—even just to the children so chosen—we should hold off for 20, maybe 25 years, and see. And we still haven't addressed the question of social harm being done by creating a world in which sex/gender is understood as an acceptable basis on which to choose children, in which differences which might matter in creating a military school are equally legitimate in creating a family.

As to the women: every study of women's choices in reproduction shows that women live in complicated webs of relationships and make their choices under a fair amount of constraint. A woman with one or two daughters will face more, not less pressure to produce a son if sex selection becomes part of ordinary practice. The new "choice" will probably pretty quickly become an obligation.

And as to whether "family balance" will inevitably lead to sex selection in the first place: you know the "slippery slope" argument? Think greased chute.

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Robertson: 3/29/06, 01:04 PM
I'm happy to stay on social effects for a while, but let's stay away from abortion. While important in Asia, it won't be used for sex selection in the West if sperm sorting and embryo selection will work. So it is a doctor issue after all—it's pretty hard to separate sperm or embryos on your own.

I don't see why allowing doctors to do sperm or embryo sorting to select for sex for a child of the opposite sex of an existing child "reifies" gender or children. Let's be realistic. Not many people will use high-tech means of sex selection when they have a 50% chance with coital conception. Indeed, among the few that do, many will be couples seeking girls.

While it is true that some couples will seek to have a boy after one or more girls, sperm sorting works better to choose girls than boys. It's harder to separate out the lighter Y-bearing sperm needed to combine with the X-bearing egg to form a male (XY). Embryo screening is more accurate, but is much more expensive and physically onerous. Sure, there will be some pressure on wives from husbands hungry for a son, but they'll have to have the money and a wife willing—it's her body, after all—to undergo IVF solely to have a boy.

So I discount the social risks heavily. It's not irrational to think about them, but with sperm and embryo selection, they seem so unlikely that it shouldn't stop couples from going forward and doctors from helping them.

So what about the "greased chute" to sex selection of the first child? Great image, but it's no better as an argument than is "slippery slope." Given that relatively few people will be doing so, why is that so bad?

The standard argument is that firstborn children will then be predominantly male, and since firstborns are more successful than later-borns, this will further entrench patriarchy at the expense of women. Didn't Daniel Sulloway argue that firstborns tend more to be conformists, while third-borns were the true revolutionaries and innovators? If there is better data about birth order effects, I'd love to know it.

Even then, we would still have to weigh the impact on women of being chosen less often as firstborns against the loss to women and men of the freedom to choose the sex of children for second and subsequent children. Yes, the greased chute analysis does get quite tricky, but aren't we trying to be rational about this?

Or is my problem that I am being too rational and logical about something that is emotional, relational, and social in a sense beyond legal and moral categories? I confess to the sin of over-rationality. Surely it is an illusion to think we can achieve perfect rationality or even a reasonable modicum of logic in our public or private lives, particularly about something as complex and emotion-driven as children and parenting.

But what is the alternative? Why is intuition, particularly your intuition, any better than my attempts at logic? Don't you have to give reasons as well, and won't they stumble up against the claim of the woman who wants a girl because of the intimate connection she had with her own mother, which was so different than the one she had with her father and brother? True, she is in some sense valuing the "sex" of the child, but won't the reality of living with the born child dwarf the concerns that your intuition (logic) say are so important?


Katz Rothman: 3/29/06, 05:42 PM
I don't really see how or why we should stay away from abortion. It is the dominant method being used in the world, including in the United States, for sex selection. The original question that began this debate specifically said "Should it be unlawful for parents to select an infant's sex through abortion or in vitro techniques and, if so, under what circumstances should it be legal?" We've agreed we don't want to see it made illegal, but I don't recall agreeing that we weren't discussing this question.

As earlier determinations of sex are made, it is pretty much inconceivable that sex won't influence decisions to keep or terminate a pregnancy. An unplanned third pregnancy that "balances," and especially one that adds the missing boy to an all-girl family, will almost certainly be more likely to be kept than will a third same-sex pregnancy. I have come across this in my own data: women—and their families—considering what to do with an unplanned pregnancy take sex into account. As we move towards earlier and earlier prenatal diagnosis of all sorts, sex selection via earlier terminations is inevitable.

You are also assuming a stability of technology that seems uncalled for. If sex selection is made socially acceptable, if we use nice language like "balancing" to make it seem a rational, balanced, sensible act, then there is all the more reason to think that market-driven research will find better (sperm-sorting and other) technology. It was pretty unimaginable 25 years ago that in vitro fertilization and related technologies would be as widely used, for as many conditions, as they are now. I see no reason to think that we have reached the end of marketing and development in reproductive technologies.

And again, let me clarify: the social effects I am discussing are not limited to the psychological effects on the individuals who are using or being selected for by the technology. I agreed with you that we cannot assess those yet, and called for another 20 years or more of data collection so we can move beyond your guess (intuition?) or mine. I am concerned with larger social consequences of moving back towards an essentialist view of sex that—I thought—we'd made some progress leaving behind us. Some women have intimate, loving, deep connections with their fathers; some men with their mothers; some siblings have much in common and meaningful, intimate connections within and across sex. By reifying sex as the basis on which we judge the potential for a relationship, you are being "sexist,"—as social scientists define it, parallel to the notions of "racist"—that is, assuming qualities other than the biological givens.

And speaking of that, how did my reasoning become "intuitive" and yours "logical"?

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Robertson: 3/30/06, 07:52 AM
I want to stick to new technologies such as sperm and embryo sorting because we are still in the process of developing them. Many issues remain to be worked out, including the marketing issues that you mention and the role of professional guidelines in screening and counseling patients.

But you do add an interesting point about how earlier and easier prenatal screening might lead to fetal sex influencing whether parents keep or terminate an unwanted pregnancy. Ultrasound testing has been the backbone of abortion for sex selection in India; no doubt such cases also occur in the United States. Abortion is cheaper than sperm or embryos sorting, but it usually carries a much greater emotional charge.

I am not convinced that sex selection abortions are so likely—at least in the West—that we should wring out hands about them. Also, what would we do about it? The United States could not constitutionally ban prenatal tests that tell fetal sex any more than it could ban abortion for sex selection, and you aren't a big proponent of legal prohibitions anyway.

This little excursion into abortion reveals a fundamental difference between us—no doubt a product of our different professional training or perhaps even temperaments. I want to talk about legal or regulatory control, while you want to discuss the essentialist attitudes that sex selection portrays. You perceive it as "reifying sex" if we use sex to choose sperm, embryos (or fetuses), and condemn it as the equivalent of racism. But that charge overlooks a crucial distinction.

Recognition of biological differences between the sexes is not "sexist," in the pejorative way that "racism" is invidious, so long as recognizing difference says nothing about how we treat people of different sexes. Can't I be "essentialist" about certain biological differences—after all, biology does matter—and still proclaim my support for the law's equal treatment of men and women? Certainly most developmental psychologists would agree with Justice Ruth Bader Ginsburg's essentialist statement that "the sexes are not fungible," yet, like her, defend strenuously the equal rights of women in all legal and public spheres.

Whether recognition of difference leads to different treatment is the issue. I'm with Ginsburg on "celebrating difference" while treating men and women equally in the public realm. Indeed, how can we treat women equally with men unless we recognize some of the biological differences that distinguish them? I hope I haven't given up my liberal credentials with such a statement, but I suspect that once we get down to specifics many liberal legal feminists would agree. So here we are discussing fancy new reproductive technologies while stuck in the mire of old issues about nature and nurture, sameness and difference, the public and the private. That should be no surprise. But once you've pointed out the tendencies and potential dangers of all that "refying," what next? I do hope you will sign on to the standard liberal platform of informed consent, protecting safety, and some degree of professional autonomy in choosing what procedures to offer.

Katz Rothman: 3/30/06, 12:22 PM
I'm a little unclear about what "biological" differences you are celebrating. Racism takes whatever differences are biological—skin color, hair texture, eye shape—and goes on to make assumptions about personality, values, abilities, interests. Sexism does the same, taking genitalia and reproductive potential as the biologic and then making assumptions about personality, values, abilities and interests. Someone who wants a girl-child or a boy-child is talking about the broad array of attributes that are "gender expectations," not about the biologic difference. John, you gave examples of a woman wanting an "intimate connection" such as she had with her mother—that is hardly based on biologic sex.

Equal treatment in the public sphere does have to take into account biologic differences: what, after all, is comparable to pregnancy? In the world of employment sometimes we treat it as more-or-less the same as a stint of military service; sometimes as more-or-less the same as an illness. Trying to find a way of pushing female biology into male role models leaves us with those puzzles. But that is not the situation here. Here we are talking about people who want to be parents of a particular "kind" (flavor?) of child, a child who will give them a particular "kind" of parenting experience, an experience they hope to if-not-guarantee, then at least increase in likelihood, by selecting sperm/embryos/fetuses on the basis of sex chromosomes or sexual genitalia observable on ultrasound.

Taking that desire seriously, talking about how best to meet it, talking about it as a legitimate desire, and placing it in the context of Roe, does reify—treat as real—sex differences that are not biological but social expectations.

Your arguments sometimes treat sex selection as a legitimate desire, saying we should expand people's choices. And sometimes you dismiss it as not important because it won't be common.

I am disagreeing on both counts. A person who says something along the lines of "I do love basketball and dancing, so I think I'll try to find a Black sperm donor" would be racist. A person who says "I do want my kid to score high on science tests, so I think I'll use an Asian" would be racist. I won't enact laws stopping them from doing that, I won't put doctors who sell sperm in color-coded vials (and they do!) in jail, but in no way will I treat that as a legitimate, reasonable, socially acceptable act. To my thinking, a person who says "I do want a child who will have an 'intimate connection' to the mother so I'll go for a girl" is sexist. And similarly, I am not going to engage the power of the law to stop it.

As to how common this will become—I honestly do not know. Our experience with technologies of all sorts, reproductive and otherwise, is that they do become increasingly widespread, and that what starts out as a purely individual choice quickly becomes an experienced necessity—true of cars and computers, contraception and prenatal testing. You think this will be different? Maybe so. But it's not your rational thinking, your logic, that is speaking.

And so far, all the data shows us that as we introduce "choice" into reproduction, individual women experience coercion as well as choice. Until the situation of women is changed, that will probably continue to be the case. When women are as socially, politically and economically as powerful as men, choices may indeed be experienced as liberating. At this point, that is not the case for the majority of women in the world. Or in the United States.


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Robertson: 3/31/06, 08:20 AM
I know that choosing sex sounds "sexist," but I view it as a choice of a different set of rearing experiences rather than of a particular social or personal characteristics as such, and a choice that is fully consistent with equal rights for women in all public spheres.

But why would anyone be doing this, e.g., paying a lot of money and going to a lot of trouble unless they had "sexist" expectations? The jury is still out on who will want family balance selection and why. Social pressures and personal life histories might contribute to it. Have you not known people with two children of one sex say they if they had another child they would like to have a child of the opposite sex?

I don't find it irrational or weird or kooky that some people might make such a choice, particularly to have a girl after three boys. Anecdotal reports show that it matters to a subset of parents, often women, as in the case of the woman interested in having a daughter after two boys because of a special intimacy she had had with her mother. Experts on the psychology of sex differences confirm that there are physiological differences in many areas. This doesn't mean that "personality, values, abilities and interests" will be directly caused by the sex chromosomes, only that differences exist and that a family might reasonably decide to have another child only if they could ensure the sex opposite of existing children.

True, we don't have to encourage such choices and are free to rail against them. But they do matter to some people, and I see no reason to put major obstacles in their way.

Once we eschew legal prohibitions, we should also explore whether professional sanctions or guidelines against sex selection are also justified. The differences that we have displayed also exist among fertility doctors and the committees that represent their views. For example, the Ethics Committee of the American Society of Reproductive Medicine has been split on non-medical sex selection, recognizing it for family balancing by sperm sorting but discouraging embryo creation for that purpose. Practitioner objections, however, have focused on the propriety of subjecting women to a freely chosen IVF cycle just for sex selection, not the sexism debate we have been having.

What is then is to be done? I say leave the playing field to doctors and families to navigate as they choose. Such a solution might also have legs as a paradigm of how we will come to deal with the other selection choices that genetic virtuosity will throw our way. Growl, but permit. Traditionalists want to keep the wine in old bottles. I'm happy to try some new bottles as well. For some, the wine may be better.

Katz Rothman: 3/31/06, 01:52 PM
It is important, as you have noted, that the fertility experts have never questioned the legitimacy of the desire for sex selection, but only the risks in achieving it. And, as clinicians, they can focus only on individual risks, specific health risks facing women who use particular technologies to achieve sex selection. It is only the women themselves who can determine what risks are worth taking in the context of their own lives. Hence I am distressed, as I assume you are John, at the news that this week an Indian court sentenced a doctor and his technician to two years in prison for using ultrasound diagnosis for purposes of sex selection. The problem lies, I feel, not with the women who are pressured into having to produce boys, nor with the doctors who are helping them do that, but with a society that makes their actions not "kooky," or "weird," and certainly not "irrational."

Some years back, when selection for disabilities of various sorts was being introduced—including for a host of conditions that didn't prevent a child from having a full and happy life if the society was only willing to provide the necessary support—critics were repeatedly assured that prenatal diagnosis and pre-implantation technologies in this country were only used for "serious" and "medical" reasons, never for frivolous and inappropriate things like sex selection. "We" (Western Europeans, Americans) with our basic decency, good values, and medical sophistication were contrasted to "them" (Asians, Indians, immigrants, people of the third world, the-great-them-out-there) who were using these precious and valuable technologies for the "wrong" reason, for (shudder! the horror!) sex selection. "We", I heard at countless conferences, use these technologies for good, medical reasons; "They" use it for bad, social reasons. And now, just a few years later, a respectable law magazine is hosting a debate about the legitimacy of "balancing" families, and the voice you have claimed as rational and logical supports sex selection.

It's intriguing that the language is "balancing" and the examples you proffer are—each and every time—for girl preference. Well, no, it's not intriguing—it's dispiriting. It's clever, too. Contemporary U.S. data still shows us that women prefer—if not for themselves, then for their husbands' sake—to have sons first. Women worry, and rightly so given the data, that men may walk away from families they've started. Women try to entice men to love their children. One time-honored way of doing that is to produce a son. It is going to be girl-only families that are more often "balanced" with a boy, and then, when we've left "balancing" behind, it is going to be first, and of course then sometimes only children, that are boys.

And yes, back to that greased chute: "Balancing" is a really brilliant linguistic coup. My congratulations to whoever thought of it. Ten years ago, a family of two parents and their two "lovely daughters", or two parents and their "two fine sons," was never called "unbalanced." Now it will be. Certainly some people (out of what I remain convinced are sexist values) "tried again." That won't be necessary now—that second child can be chosen for "balance." And perhaps, in a few years, those who don't balance that second child will be seen as irresponsible, reproducing needless extra children.

I don't know what the new and what the old wine is here—but yes, it's enough to drive a person to drink.

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