Is Nonmedical Sex Selection Always Sexist?

By John A. Robertson

Nonmedical sex selection is a thorny topic. Usually used to favor males, it has harmed women and resulted in sex ratio disparities in India, China, and other nations where son preference is strong. Sex selection is also troubling because it relies on infanticide, abortion, or the discarding of embryos based on their sex.

Since sex ratio imbalances are not a danger in the United States and equal rights and opportunities for women, though imperfect, are increasingly well-established, nonmedical sex selection in some circumstances, e.g., for gender variety in a family, may be more acceptable. That position, however, runs into the claim that any deliberate choice or preference about the sex/gender of offspring, even for a girl, is inherently sexist or gendered (see Glenn Cohen’s recent post). That position, however, is controversial.[1]

The main reason is that there are well-established physiological and psychological differences between the two sexes evident in infancy and early childhood, even before external influences have molded human clay. Indeed, recent epigenetic studies show that genes on the Y chromosome “may represent a fundamental difference in how the cells in men’s and woman’s bodies read off the information in their genomes.”[2] While the path from epigenesis is long and complicated, it should be no surprise that the experience of raising a boy is quite different than that of raising a girl.

Such real biological differences in childhood and perhaps later may explain the preference that some families have for gender variety in a family. The claim here is that sex preference, especially for second and later children, is not always discriminatory and invidious (though sometimes it is). Sometimes that preference simply reflects the deeper biologic reality of how raising girls and boys differs.

Biologically rooted sex differences may have led to construction of gender and thus underlay the inequality that women have historically experienced. However, it doesn’t follow that wanting the different experience of raising a girl or boy springs from gender stereotypes or will lead to gendered rearing practices. In fact, women who want a daughter after sons may drive most use of nonmedical sex selection by PGD. Practitioners, courts, legislatures, and scholars should be less quick to condemn all nonmedical sex selection as harmful to women or necessarily sexist or gendered.

As sex selection technology becomes more adept, the discussion should become more nuanced. Invidiously gendered selection decisions situations may be distinguished from those that are less so. Further work should identify situations where nonmedical selection carries little harm to society or women. For example, is selection of first born females acceptable but a first born male is not? Should sex selection be done only for the second or later children? How many children of one sex should occur in a family before seeking variety by sex selection? Is abortion justified for gender variety only in the first trimester? What about embryo selection or preconception sperm sorting? Indeed, is distinguishing gender variety from other instances of nonmedical sex selection workable or even cogent?

In grappling with these questions I am reminded of Justice Ginsburg’s landmark opinion in Virginia v. United States, 518 U.S. 515 (1996), the Virginia Military Institute case. While strongly upholding the right of women to be treated equally with men, she also celebrates the differences between the sexes:

“Physical differences between men and women are .. enduring. The two sexes are not fungible; a community made up of exclusively of one sex is different from a community composed of both. ‘Inherent differences’ between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of either sex or for artificial constraints on an individual’s opportunity. Such classifications might not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.”

Her eloquent words remind us that “inherent differences” in does not mean that differences should easily be used to penalize women. By the same token, if recognition of difference does not impose inferiority, it would seem to allow families the opportunity to choose the different rearing and relational experiences that arise with girls and boys. If reproductive choice is viewed as a fundamental right, there should be a stronger showing of harm to support limits on it than the claim that selection of a girl is inherently “sexist” or that it “reflects negative gender stereotypes.”

In writing this passage Justice Ginsburg almost certainly did not have a right to nonmedical sex selection in mind, but she chose general language with applicability beyond single-sex military schools. Litigators, ride hard this language when the law bars a family from having children of different sexes.

[1] John A. Robertson, “Procreative Liberty in the Era of Genomics,” 29 Amer. J. Law & Med. 439-4387 (2003).

[2] Nicholas Wade, “Researchers See New Importance in Y Chromosome,” New York Times, p. A12 April 24, 2014.

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