Download Sex selection

Assisted Human
Reproduction Act
2004, c. 2
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genetic
screening
cloning
The
Technologies
gene
therapy
sex
selection
artificial
placentas
postmenopausal
motherhood
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Origin of Assisted Human
Reproduction Act
 Act based on Proceed With Care:
Report of the Royal Commission on New
Reproductive Technologies
 Hearings held by parliamentary
committees
 Committee acceptance of Commission's
position
 Ignored
CMA submission to Commission
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Types of Considerations Central to
Parliament’s and Royal Commission’s
Reasoning
 Beneficence and the social order
 Respect for Persons
 Children as Commodities
 The Position of Women
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Beneficence and the social
order
 Rejection of for-profit surrogacy is essential
under beneficence and for good social order
Disruption of normal parent-child relationship
 Spectre of women as “brood mares”

 Analysis
 No scientific evidence that social order would be
disrupted or threatened
 Inconsistent position on allowing other potentially
harmful activities
 No evidence of psycho-social harm.
 Violates autonomy and right to self-determination
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Autonomy & Respect for
Persons
 Cautionary position of Commission:

“Could a prospective surrogate mother ever be
in a position to make a free and competed
decision ?”
 Lawyers sometimes act as surrogacy brokers

Perceived conflict of interest
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Stated Purpose of Act
 “tak(e) appropriate measures for the protection and
promotion of human health, safety, dignity and
rights in the use of these technologies and in
related research” and
 avoid “the exploitation of children, women and men
for commercial ends”
 ensure informed consent in these areas;
 Preserve and protect “human individuality and
diversity, and the integrity of the human genome.”
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Tools Available to Parliament
 Constitution makes health care a matter
of provincial jurisdiction.
 Therefore claimed that only tools
available to Parliament are


Transfer payments
Criminal Code
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List of Prohibited Activities
 For-profit surrogacy
 Reproductive cloning
 Germ-line genetic
modification
 Creation of chimeras
 Inter-species implantation
 Sex selection for nontherapeutic reasons
 Using gametes of deceased
without their prior consent
 Maintaining embryos outside
human body longer than 14
days
 Sale, barter, etc. of
gametes, zygotes or
embryos.
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Required Activities
 Establishment of an Assisted Human






Reproduction Agency
Licensing (professional and institutional)
Informed consent to donation and/or use
Ensuring donor confidentiality
Ensuring access to statistical data
Retaining records in a central agency
Prosecution only with AG’s consent
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On the positive side
 The law provides some much-needed
control in the area of reproductive
technologies.
 It stipulates an oversight mechanism,
and promises to fund it.
 It has the potential for ensuring national
standardization in the area.
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General Problems
 Notion of human dignity elusive and
undefined.
 Inconsistent approach to
commercialization of reproduction.
 Based on few hard data about risks.
 Not consistent with other health care
related position.
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Specific Ethical Problems
 Disregard of equality and justice.
 Indifference towards suffering of future




generations.
Paternalism towards women.
Stigmatization of naturally occurring process.
Shortsighted re gametes/embryos of deceased
Knee-jerk reaction on sex selection.
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For-profit Surrogacy
 6. (1) No person shall pay consideration to a female
person to be a surrogate mother, offer to pay such
consideration or advertise that it will be paid.
 (2) No person shall accept consideration for arranging
for the services of a surrogate mother, offer to make
such an arrangement for consideration or advertise the
arranging of such services.
 (3) No person shall pay consideration to another person
to arrange for the services of a surrogate mother, offer
to pay such consideration or advertise the payment of it.
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For-profit Surrogacy (cont.)
 (4) No person shall counsel or induce a female
person to become a surrogate mother, or
perform any medical procedure to assist a
female person to become a surrogate mother,
knowing or having reason to believe that the
female person is under 21 years of age.
 (5) This section does not affect the validity
under provincial law of any agreement under
which a person agrees to be a surrogate
mother.
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Claims against for-profit surrogacy
advanced in debate of Act
 Harmful to women because it defines
women by their reproductive capacity
 Alienate women from what should be
inalienable from them
 Reduces women to slaves
 Turn children into products
 Psycho-social harm for children
 Contrary to public policy and social order
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Analysis
 Some women do have enough
information to make informed decision

Prospective parents in greater ignorance
than surrogate
 Aspersions cast on lawyers unwarranted
 Position of Ontario Law Reform
Commission
 Violates autonomy
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Children as Commodities
 Surrogacy for a fee amounts to selling
babies.
 This turns babies into commodities.
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Analysis
 Different types of surrogacy
 Gestational
 Gestational + ovum
 If paid for both ovum and services


Ovum is not fetus
Ovum is not potential child
 If paid merely for gestational services

Child is not sold


Must be adopted by contracting parents
Not invalidated by differential payments for birth as
opposed to miscarriage

Reduction in payment reflects differential view of


Incomplete service
Quality of service
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The Position of Women
 Claim:

gestation contracts devalue
women and deny their status as an
ends-in-themselves
‘brood mares’
 disruption of social structures

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Analysis
 Right to choose any activity consistent with
nature as person
 Values must not denigrate individual as person



Worker must not become identical with work
Therefore terms of contract are central
Fact that labourer and contractor have divergent
interests does not turn the labourer into a tool or
identify labourer with work
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Alienation from work
 In gestational surrogacy
 mother is mother by convention, not biologically
 No biological link (parasite)
 No genetic link
 Argument requires subsidiary premises
 Woman can never give up child


false
Such close connection to gestation that to sell services is
to sell self.
 false
 Requires morally repugnant subsidiary premise:

Viz., that women are identical with their reproductive
function.
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Compare Royal Commission’s
own statement in Proceed With
Care
 Alittle is known about the psycho-social
effects of these arrangements on the
participants and the resulting
children.@ (at 685)
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Non-medical Sex Selection
 5.(1) No person shall knowingly
(e) for the purpose of creating a human being,
perform any procedure or provide, prescribe or
administer any thing that would ensure or
increase the probability that an embryo will be
of a particular sex, or that would identify the sex
of an in vitro embryo, except to prevent,
diagnose or treat a sex-linked disorder or
disease;
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Standard Position on the Ethics of
Sex Selection:
 Sex selection is ethically acceptable for
medical reasons
 Beneficence
 non-Malfeasance
Directed at condition,
not sex; therefore
species of medical care
 Sex selection is ethically unacceptable
for all other reasons
 Sexist
values are unethical because they
violate
Human dignity
 Equality of persons

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But: there are also some standard
objections to medically based sex
selection
 Interference in human reproduction
 Donum
vitae
 Instrumentalistic view of human life
 Human
beings viewed as manipulable objects
 Mistaken view of parenthood
 Only
conditional acceptance of children
 Negative valuation of differently-abled
persons
 Deaf
culture and the case of cochlear
implants
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Ethics of Sex Selection:
The non-standard version
 Political correctness is not ethics
 Consensus is not ethics
 “A
consensus means that everyone agrees to
say collectively what no one believes
individually.”
attributed to Abba Eban
 Inconsistent ethics is unethical in its
implications.
 Ethics that ignores facts is politics in
another guise.
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Some ethically relevant facts
 Preferences are logically different from
values
 Social policy that ignores material facts
is
 unworkable
 unethical
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Values vs. Preferences
 Values accord worth to what one values
 Sexist values accord greater worth to the
members of a particular sex

Therefore
 they are discriminatory
 they violate equality and dignity of persons
 Preferences do not accord greater worth to
what one prefers


Preferential social associations are not unethical
 friendships
 clubs, etc.
Therefore they do not violate equality and dignity of
the person
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Conclusions # 1
 Sex selection based on preference is not
subject to the same ethical critique as
sex selection based on sexist values

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

Christine Overall 1987, 1993
Murphy, 1990
Society of Obstetricians and Gynaecologist of
Canada, 1991
CMA, 1991
 Therefore value-based reasons against
sex selection do not apply to preferencebased sex selection
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Data on sex preference
 Canadians do not want more children of one
sex than of another

Proceed With Care: Final Report of the Royal Commission on
New Reproductive Technologies (1993)
 Most Western Countries do not want more
children of one sex rather than another



Jain, Missmer, Gupta and Hornstein. Preimplanttion sex selection
demand and preferences in an infertility population Fertility and
Sterility, 2005;83:649-58
Dahl, Beutel, Brosig and Hinsch. Preconception sex selection for
non-medical reasons: a representative survey from Germany.
Human Reproduction , 2003;18(10): 2231-2234
General position: “We want matched pairs.”
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Conclusion # 2
 Data do not show that in Western (and
especially Canadian) society, sex
selection would be based on sexist
values
 Therefore, to be ethically defensible,
prohibition of non-medical sex-selection
in Western countries must have some
other justification
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Ethics and public policy
 The purpose of public policy is to
 prohibit unethical acts
 encourage ethical behaviour
 encourage ethical values
 Public policy must be
 enforceable
 consistent

Cooper v. Hobart [2001] 3 S.C.R. 537
 Rights may be curtailed only to the least degree necessary
to achieve legitimate end

R. v. Oakes [1986] 1 S.C.R. 103
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“There is ... a need for judicial restraint
in the development of ... law as it
pertains to sensitive and far-reaching
issues of public policy.”
(Supreme Court of Canada: Dobson v. Dobson,
1999)
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Some more ethically relevant facts
that have been ignored in the sex
selection debate
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Sex Distribution at Birth
Surprise, Surprise!
 Male to female birth ration was 51.4% in favour
of males
 Male to female birth ratio currently is 60% in
favour of females

Davis, Gottlieb and Stampnitzky. 1998; Møller, 1998; Mocarelli, Gerthoux, Ferrari, Petterson, Kieszak, Brambilla, Vincoli,
Signorini, Tramacere, Carreri, Sampson, Turner and Needham, 2000; Martuzzi, Di Tanno and Bertollini, 2001; Ryan,
Amirova and Carrier, 2002; del Rio, Marshall, Tsai, Shao and Guo, 2002.
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Reasons
 Long-lasting environmental pollutants
 Dioxins
 Polychlorinated
biphenyls
 They are found globally
 In some locations, their effects are
extreme

In some Canadian locations, they have
resulted in a male/female birth ratio of .35
to 1
Mackenzie, Lockridge and Keith, 2005.
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Conclusion # 4
 Sex selection is pragmatically necessary
for species survival if polygyny, etc. are
not to be institutionalized.
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Modest Proposal
 Allow sex selection for sex-balance
 Institute sex selection lottery
 Only
for every second child
 Adjust chances relative to existing sex
distribution of fertile members of society
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Won’t this contradict the desideratum of
population reduction that underlies the
claim that responsible reproductive
behaviour limits children to 1 per family?
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Some other ignored facts
 Responsible reproductive policy cannot
be national but must be global
 Sustainability of species requires more
than one child

general estimate is 2.05 and 2.1 per couple


Espinshade, Guzman and Westoff, 2003
Australian Academy of Science, 2006.
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OK
Now What?
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