It's a boy! It's a girl! Until the 1970s, these words welcomed
virtually every child into the world. In less than one generation,
however, new reproductive technologies have shifted this announcement
from the delivery room to the obstetricians' office; ultrasounds
and amniocenteses now allow expecting parents to choose their
nursery walls' paint color months before giving birth.
The science and business of sex identification took yet another
quantum leap forward this past week with the Pregnancystore.com's
release of the Baby Gender Mentor Home DNA Gender Testing Kit.
Now, a woman can know her child's sex shortly after she discovers
her pregnancy. As soon as five weeks after conception, she can
prick her finger, FedEx a blood sample to Acu-Gen Biolab in
Lowell, MA, and have the sex of her sprouting embryo emailed
to her faster than Netflix can send her next movie.
An unequivocal good, many say. What's more harmless than learning
whether to buy dolls or trucks for the toy chest?
Ultrasounds and amniocenteses cannot accurately determine a
fetus' sex until at least four months into pregnancy and sometimes
not until month five - a point at which virtually all expecting
mothers have already chosen to continue their pregnancies to
term. Since the State has no legal interest in a fetus before
its viability (usually at 24 weeks), there has been a legal
and technological gulf separating a woman's choice to continue
her pregnancy and any knowledge of its sex.
This is no longer the case. With the Gender Mentor Kit, a new
issue enters many prospective parents' minds: Do we want to
have a child of this sex? Or should we try again?
Are there many people who would reason, and act, in this way?
There are. Nobel prize winning economist Amartya Sen estimates
that such sex selective practices are, in part, responsible
for over 100 million "missing women" worldwide. But
since dowries and other culturally specific influences fuel
boy preference in places like China and India, many, including
Pregnancystore.com president Sherry Bonelli, believe that this
"isn't an issue in the United States."
Or is it? Sex selection in the United States is becoming a
multi-million dollar industry. Businesses such as MicroSort,
a sperm sorting service that selects for sex before pregnancy,
are part of an ongoing commercial effort to normalize sex selection
as Extreme Makeover normalizes cosmetic surgery. To be sure,
the Gender Mentor Kit does this while also providing a wholly
new economic incentive: where sperm sorting costs in upwards
of $5000, the Gender Mentor Kit plus an early term abortion
- if the results are unfavorable - would cost as little as $600.
In some regards, Ms. Bonelli may very well be correct. Since
most Americans conceive children in a different cultural and
economic context than their Chinese and Indian counterparts,
there may be little reason to think that sex selection in America
would lead to an imbalanced sex ratio. Yet, defending sex selection
in this manner is little more than a straw man; its ethicality
should not turn solely upon sex ratios, but ought to look at
the act itself. America's foreseeable sex ratio speaks little
to the broader principle of whether sex should inform procreative
Some advocates argue, as Rutgers Law Professor Kimberly Mutcherson
told Newhouse News Service, "if you believe women have
the right to choose, [selecting sex] is a perfectly legitimate
reason." Yet this perspective, as a matter of law, is of
questionable merit. Subsuming an ostensible right to select
sex under Roe's reproductive freedoms is as misguided as the
Gender Mentor Kit's mistaking sex for gender. The right to choose
neither includes nor implies a right to design; Roe secures
a woman's decision to "bear and beget a child," not
a right to configure its human attributes.
What, then, is the appropriate response?
Our laws afford women a right to privacy with regards to their
decision to carry a pregnancy to term. Yet, allowing for-profit
corporations to change the nature of this 'private' decision
will undoubtedly have a 'public' impact; at least 15 countries
- including England, Australia, Canada, Germany, and France
- proscribe sex selection for this very reason. This is not
to suggest any new limits on Roe, nor resurrect or legitimate
any old ones. Rather, it is to put forward the idea that there
is a dubious relationship between embryonic sex identification
and sex selection that leads us one step closer to a new eugenics.
To the extent that the Gender Mentor Kit does little outside
of lending more ice to a slippery slope towards designer babies
- where a child's physical, emotional, and mental attributes
are pieced together in a Frankensteinish manner - we ought to
think long and hard about whether "mentoring gender"
is a recipe for disaster.
Osagie Obasogie, J.D., is project director with the Center
for Genetics and Society's Project on Race, Disability and Eugenics.
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