Sex selection banned in the UK

by Chris Bertram on November 12, 2003

The Guardian “reports that”:,2763,1082860,00.html

bq. Selecting the sex of a child is to be banned in the UK after a consultation exercise found the public outraged by the idea.

This is a recommendation from the Human Fertilisation and Embryology Authority to the British government and admits of some exceptions to cover families with sex-specific genetic disorders. The HFEA chairwoman, Suzi Leather expressed the body’s reasoning:

bq. We are mindful of their far-reaching nature. Nevertheless, it is clear that there is a substantial public consensus against sex selection for social reasons. We are not persuaded that the likely benefits of permitting sex selection for social reasons are strong enough to sustain a policy to which the vast majority are overwhelmingly opposed.

I don’t know whether there are other, good reasons, for banning sex selection, but I do believe that the reasons as stated are outrageous. The HFEA is arguing (and the Secretary of State is agreeing) that acts should be prohibited where a majority opposes them unless permitting those acts would have definite benefits for society at large. But this is to get the burden of proof completely the wrong way round. Whatever majorities think about some aspect of individual conduct, in a liberal society it has to be clearly demonstrable that an action would be _harmful_ if prohibition is to be justified. No such justification has been produced.



Chris Young 11.12.03 at 12:36 pm

Suzi Leather in 1953:

“We are mindful of their far-reaching nature. Nevertheless, it is clear that there is a substantial public consensus against coloured people moving in next door. We are not persuaded that the likely benefits of permitting coloured people to own houses for social reasons are strong enough to sustain a policy to which the vast majority are overwhelmingly opposed.”

Suzi Leather in 1903:

“We are mindful of their far-reaching nature. Nevertheless, it is clear that there is a substantial public consensus against sex for social reasons. We are not persuaded that the likely benefits of permitting sex for social reasons are strong enough to sustain a policy to which the vast majority are overwhelmingly opposed.”

Sadly it is most probable that a. this bloody fool has no idea what she has actually said, and b. the Secretary of State has never read the report, only a one page briefing summary by a junior civil servant.

IIRC, previous HFEA rulings against new technologies have been supported by (speculative) arguments about the welfare of children born as a consequence of using them. This was true in the well publicised case of Diane Blood, for example. So this is an innovation which ought to be nipped in the bud. For starters a sharp note to the SoS from a group of prominent philosophers might be in order.

Not that I’d tell anybody what to do.


Perry de Havilland 11.12.03 at 12:44 pm

But what could possibly be more democratic than using the hammer of state to support as many majority prejudices as possible?


Andrew Ian Dodge 11.12.03 at 1:25 pm

Lol, Perry, I agree. This is a really pathetic ruling.


Barbara 11.12.03 at 1:49 pm

This is a difficult issue, and the justification for it — the majority doesn’t like it! — is pathetic. But working through the logic and implications of the possibility of sex selection is extremely important. Ideally, no one would care, but the fact that people care at all (that is, have a preference) tells you that we don’t live in an ideal world. The problem is that enabling such individual preferences has consequences for society at large that can be imagined if you visit or study a place such as certain locales in India, where, if you will, such a eugenics experiment has been in place for the better part of a generation.

Perhaps this still doesn not justify impinging the liberty of parents. However, parents aren’t really at liberty to choose the sex of their children are they? They require the input and expertise of highly skilled people who are often working (especially in the UK) at public expense. The public does not wish medical resources to be used to fund de facto eugenics experimentation if not outright discrimination against one sex or the other (gee, I wonder which sex that would be?).


Xavier 11.12.03 at 3:08 pm

Barbara: Okay, that’s a good argument for denying public funds for sex selection research. But the sex discrimination claim is baseless. The problem with discrimination is that actual people are harmed by it. The only “victims” of sex discrimination in this case would be the female children that are never born.


Jack 11.12.03 at 3:09 pm

All the fine principles here wouldn’t have helped Pandora with her box would they?

The popularity of the decision is pretty weak as evidence of what is actually a good idea but it doesn’t mean that there aren’t grounds for worrying about gender selection as India, Pakistan and China demonstrate. In any case having to dismiss the views of 80 per cent of people (number half remmebered from radio story)is not such a great position ot be in. Since this decision is clearly not irrevocable I would say that the onus was on people who think it is a good idea to explain it to people. Over history crackpot ideas that 80 per cent of people didn’t like and which we are very glad were not implemented surely outnumber the two cases listed above by thousands or millions to one.

It is surely not just a matter of individual choice because it concerns another human being and it potentially has effects that other people have a legitimate interest in. Individual choice is a factor but it shouldn’t really need saying that it isn’t the only one.


Nasi Lemak 11.12.03 at 3:36 pm

I think the real answer is implicit in some of the comments above: what on earth makes you think that HFEA is in some way committed to liberalism?


robert mcmanus 11.12.03 at 4:27 pm

A short glance at India ( and to a lesser extent because of technology lag, China) will show the potential harm. It is getting to the point in India where Brahman men are starting to go out of country to find wives


drapetomaniac 11.12.03 at 5:15 pm

A short glance at India ( and to a lesser extent because of technology lag, China) will show the potential harm. It is getting to the point in India where Brahman men are starting to go out of country to find wives.


i had to read this twice to realize it was bone-dry wit, but after the person who compared the qualms over discriminating against girl children with qualms over having ‘colored’ neighbours, i was a little disoriented.


Chris Bertram 11.12.03 at 5:32 pm

As I said in the post, I’ve no problem with prohibiting things if significant harm (or risk of harm) can be demonstrated. And *if* that can be demonstrated for India than that’s a reason for *India* to have a law against sex selection.

What I objected to was that the officials from HEFA didn’t employ a harm criterion but quite a different one that is supremely illiberal (namely, phi-ing should be banned if (a) most people are against it and (b) there’s no demonstrable social benefit).


Sifl Clone 11.12.03 at 5:45 pm

If clones are outlawed only outlaws will have clones.


Teep 11.12.03 at 6:38 pm

Well, a quick poke of the world wide wonderful turnes up the following…

It would appear that India *does* practice sex selection via (mostly) abortion… and that laws in India do exist to prohibit selection of a child’s sex.

See also



Jack 11.12.03 at 6:51 pm

Chris I think the argument is fine but not exhaustive and the categories used give it a misleading appearance of clarity.

For example, Choosing the sex of a child is one of a whole class of possibilities that contain some activities that would be much more controversial, selecting for blond hair or a predisposition for a high IQ for example and those objecting might reasonably want reassurance that the door wasn’t being opened all the way.

Nor is it clear whether or not there is the chance of significant harm. If it were in fact established that child sex selection was pernicious in India but not in the UK (Now and for always) then there might be an argument for one law for India, another for the UK. However sex selection is practised in India and has bad effects and not much practised in the UK thanks to the NHS. It is quite bold to treat the empirical example as automatically a special case and the optimistic assumption as normality.

In fact many of hte ingredients required for a demonstrably correct decision are unknown and that really needs to be taken into account.

Really it is a bit like President Bush’s “you are with us or you are against us” or Kennedy’s “You are part of the solution or you are part of the problem”. Nice rallying cries but no stronger as an argument than most people are against it. That’s not a great argument but not a good deal worse than what is being pushed to fill the vacuum left when it has been overuled.

Because the marginal effects on people beyond the parents are small it doesn’t follow that the state doesn’t have a legitimate interest just as it wouldn’t matter all that much if I didn’t pay my taxes. It has been amply demonstrated that the free choices of parents in the very matter can have negative effects.

It really should be a sign that an argument is lame if it doesn’t even attempt to deal with why people are against sex selection in the first place.


Dan Simon 11.12.03 at 8:52 pm

Chris writes, “[w]hatever majorities think about some aspect of individual conduct, in a liberal society it has to be clearly demonstrable that an action would be harmful if prohibition is to be justified.”

I can think of two plausible interpretations for this statement:

1) Chris believes that when democratic majorities ban things, it’s not because they consider those things harmful, but rather just because they like to butt into other people’s business for no reason at all.

2) He believes that democratic majorities may think that certain things are harmful, but that they are not in fact entitled to do so until certain people–I’m not sure who, but they’re definitely a minority, and I’m pretty sure they’re supposed to be more like Chris than most people–decide that those things are harmful after all.

I’m not sure which interpretation I find more disturbing.


Brian Weatherson 11.12.03 at 9:26 pm

I don’t see the problem with (1). Surely that’s true, at least some of the time. Here the banners weren’t even *trying* to put forward an argument that the actions were harmful, just an argument that they had no perceived benefit. What better evidence do you want that they are just poking into other people’s affairs?

In any csae, there’s a more charitable interpretation – which is that societies have to be *right* that the action is harmful before they are justified in banning it. This is not to say that they won’t make mistakes, everyone makes mistakes, or that there is an operational way to prevent these. But if societies act on mistaken beliefs about what actions are harmful, and in doing so needlessly restrict individual freedoms, then there is a pretty good argument that they act unjustly. That’s all Chris is trying to say in this sentence, and it seems right to me.


Dan Simon 11.12.03 at 10:29 pm

The fact that the “banners” cited no reason other than the public’s opposition proves nothing about the public’s motives in desiring a ban. I, for one, find it hard to believe that such overwhelming public opposition is a product of mere whimsy. (Whether I agree with the public’s attributions of harmfulness is, of course, another matter.)

As for the question of whether the public is right in concluding that the practice is harmful–well, it’s a nice philosophical point, I suppose, but in the real world, where such determinations are impossible to make with certainty, the only relevant question is whose opinion is the most likely to approximate the “right”, and thus ultimately ought to hold sway.

Now, if Chris were making persuasive arguments to the effect that sex selection is harmless, or insufficiently harmful to ban, then he would be doing his laudable part to improve the body of knowledge and wisdom available to the public, which they then could use to make their decision (through their elected representatives). But I saw no such arguments from Chris–only the vague implication that someone other than the public should be entitled to decide whether the public’s assessment of the harmfulness of sex selection is “right”.

So I ask you, Brian: who?


Brian Weatherson 11.13.03 at 12:46 am

Look Chris said no such thing. If you simply don’t care about debates about right and wrong, if you think they are merely “nice philosophical points” then obviously you’ll have a very different debate to those of us who do care about such things. Being an old-fashioned non-relativist I think that no one has the ability, let alone the entitlement, to simply decide that something is right and thereby make it so.

At the more practical level, I didn’t see anything it what Chris said, or implied, that the choice about whether sex slection should be banned should be made by anything other than a suitable democratic body. (Of course there’s all sorts of debates to be had about what that might be, but nothing Chris said commits him on that debate right here.)

Chris’s point though, and it’s a correct one, is that this kind of democratic procedural correctness is no guarantee that the decision is just. In this case they have, at the very least, used completely lousy reasoning, and that’s normally a sign that a bad decision is being made. In America these days that a bad decision is being made is usually a sign that there’s little hope of doing anything about it, but I take it things are still a little brighter in Britain.


Dan Simon 11.13.03 at 1:29 am

Okay, let me get down off my rabid-small-d-democrat high horse for a moment and be very specific about my complaint. Over here in the US, it is commonly asserted that decisions such as “whether sex slection should be banned should be made by anything other than a suitable democratic body.” In particular, the judicial system–and the Supreme Court in particular–is frequently touted as a kind of moral oracle on these questions. Taken in this context, Chris’ argument–which, I re-emphasize, was utterly devoid of material discussion of the morality of banning or not banning sex selection–looked suspiciously like an argument for taking the decision out of the hands of the public.

I do not believe the public of any country to be morally infallible, and I would be delighted to see thoughtful, informed discussion of the moral merits and demerits of banning sex selection. (My own thoughts on the subject, as a matter of fact, are far from fully-formed.) But the implicit bureaucratic reasoning in this case–which I took to be, “if the public are overwhelmingly against it, they are legally entitled to enact a ban, and I will give them the benefit of the doubt in assuming that they have a plausible moral argument for it”–strikes me as unexceptionable. And complaining, “but the public may not be right,” is no argument for opposing their decision, unless accompanied with a concrete argument against their position.


carlin 11.13.03 at 3:50 am

Dan, you’re making a good point, but are missing the other folks’ different, but good, points in your haste to defend something you think valuable.

We all agree that democratic decisions are better than dictatorial ones, other things equal. Dan thinks Chris and Brian don’t agree with that, but they do. Here’s how.

There are different ways of making a democratic decision. One is to immediately have a vote, or take a poll, offering a limited number of choices (or even simply yes or no to one proposal). That takes everyone’s preference as eternal, antecedent, and not open to change except perhaps under extreme social pressure. But deep down, each person will only ever have one opinion on a matter, so we might as well take a vote now.

Another way is to offer people the chance to reason about the question. Before they vote on whether to ban sex-selection, they get to ask questions of each other. Why would someone want to do it? What is the likely aggregate effect? Could people be encouraged to give birth to female children – perhaps through social incentives, banning dowries and enforcing the ban, etc?

On this model, people also get to discuss whether a ban is the best way to ensure the underlying goals, which include equal value of male and female lives, old-age security for parents, medical privacy and individual autonomy, a desire to avoid unnecessary coercive laws, etc.

But now, Chris’ point ought to make sense to Dan. Chris isn’t saying that democratic decisionmaking is a bad thing because a vote came out the wrong way, so the people polled must be idiots. He’s saying that having a poll without any discussion, without giving people any input into the alternatives available (outright ban? No public subsidy but no ban? No travel abroad to get sex-selection? social pressure but no ban? adoption?), that this itself is undemocratic.

Remember the example of determining the length of the emperor’s nose by polling many people who have never seen it? That’s what Chris is complaining about here, and he’s quite right. Dan, feel free to disagree with him, but disagree with what he actually says. Argue that no one every really changes their minds in discussions, or that HEFA polls are robust to the number and quality of possible answers, something like that.


Jack 11.13.03 at 8:04 am

Carlin, I think Chris has pointed towards the arguments you outline in the last two paragraphs but he hasn’t gone that far. Other commentaters here have run with the argument in other directions.

The report itself is the second review in a decade of an established policy and is in part the result of a substantial public consultation process.

It is online and explicitly addresses the issues raised here, in paragraphs 18 and 147 for example. In particular it has done exactly the things you suggest it ought to have with, it seems to me, a remarkably thourough discussion and revisitation of previously addressed issues.

Paragraph 147 makes it clear that the report does not regard public opinion as decisive. The report mostly revisits an existing policy so the question is should we change an existing policy against the explicit wishes of the majority? Say yes to that if you like.

Dan also raises the issue of exactly who is supposed to be liberal. Somehow society needs to protect the interests of minorities and to prevent the wanton imposition of disinterested majority preferences. Who is supposed to do what when that doesn’t happen? A benign despot should stop them? Decisions should be made by an elite committee of the illuminated (more or less what has been done in this case)? Or an effort made to persuade the overbearing majority of the value of tolerance which would lead them to give the right answer when democratically consulted?

In short I think Chris has raised a valid objection to the press release but that his proposed test is itself too crude. The report itself is somewhat more defensible than the press release.


Chris Bertram 11.13.03 at 11:12 am

Jack, Many thanks for pointing to the text of the report. I don’t really share your view that the report is more defensible than the press release, but it is at least clear. The relevant sentences in para 149 are

bq. …the fact that a proposed policy is widely held to be unacceptable does not show that it is wrong. But there would need to be substantial demonstrable benefits of such a policy if the state were to challenge the public consensus on this issue.

This makes it evident that the frame within which the report’s authors were operating is a review of existing policy where positive reasons have to be shown to justify overturning the policy. And that’s what I object to. What the HFEA should have been asking is whether a restriction on individual liberty is justified, and the right way of approaching that issue is to look to whether prohibition is necessary to avoid the risk of serious harm. They should have operated with a libertarian presumption, and they didn’t.

I’d also like to note — especially since the suggestion of elitism has been thrown at me in this thread — that the implicit view of the state’s role embedded in the sentences quoted is highly elitist: reflecting public opinion where they (some body separate from society) has to, and challenging it where they can.


Dave F 11.13.03 at 12:33 pm

As for the “democratic majority’s” views on the rights and wrongs of anything, the last time they were asked, the majority were in favour of bringing back the rope. Since there clearly are likely benefits to the “democratic majority” if more bad hats are put permanently out of circulation, I can’t see why parliament persists in flying in the face of public opinion.


Thomas Dent 11.13.03 at 2:17 pm

I may be missing something here, but how is some quango supposed to find out the reality of ‘majority public opinion’, in order to base their default position on it? Opinion polls are hardly an accurate or reliable way of doing so.

If it were really a single yes-or-no question it might be possible to get a clear result, but supposing the most widely-held opinion was “no but with a few exceptions”? Good policy-making almost always involves compromise, whereas opinion polls almost always exclude the very possibility of compromise.

It’s difficult to say precisely why government by opinion poll would be so objectionable, but the problem of who formulates the poll questions is a big part of it.

I don’t see why this issue shouldn’t be decided in as democratic a way as we have — i.e., in Parliament.


Robert Speirs 11.13.03 at 3:24 pm

Doesn’t the modern reasoning dictate that a woman has a right to have an abortion for any reason or no reason at all? Who could possibly deny her that right, especially if she pays for the procedure? Is the govt. now asserting the power to force a woman to have a child she does not want?? Do voters now have some “right” to have 50% of the population be of each sex? What if a twelve-year-old rape victim is prevented from having an abortion because the fetus is female and too many females have already been aborted this month? I see some problems here.


Jack 11.13.03 at 9:06 pm

I can see how you might still take exception to the report butit does explicitly mention your original objection.

Objection to the report’s status as a review doesn’t immediately strike me as compelling, especially since the original decision is relatively new and has been revisited in the interim. There are many much more significant issues that don’t get that sort of consderation (the procedures of the House of Lords for example).

All of this seems to be a discssion of the form of a debate and not of its content. I think that a discussion of the content would lead to significant considerations for the form. For example this issue certainly has plausible genie in a bottle potential and therefore is ripe for application of a precautionary principle or a more subtle way of taking uncertainty and risk into account.

Just in case of confusion, I am not accusing you of elitism. I just wonder where the liberalism of socety is supposed to reside. I’m glad there is no death penalty despite what a poll would likely say. However when society is somehow getting it wrong, who is supposed to be at fault and what is the proper process for fixing it. Similarly, how should liberal policies that run against democratic willbe properly implemented? I can easily agree with the ends but the means have to look pretty ugly and most likely rather like the HFEA.


Dan Simon 11.13.03 at 9:18 pm

Chris, I don’t necessarily agree with the reasoning in the report either, but I find the “libertarian presumption” you advocate to be at least as disturbing. The problem with it is that it implicitly assumes that the public are incapable of gauging the “harm” done to them by certain classes of action.

As I mentioned previously, while I don’t believe that the majority has an iron-clad grip on moral truth, I do believe them to be, on the whole, well-intentioned in forming their opinions–that is, to support bans on behaviors if and only if they believe those behaviors to be harmful. If you disagree, then you must specify whom you consider more trustworthy in that regard.

And at that point, you must explain how to avoid the pitfall into which the American system has fallen–slipping easily and naturally from trusting an unaccountable body to identify “harmless” behaviors that therefore mustn’t be banned, to trusting that same body to identify “harmful” behaviors that must be banned. That way, to be blunt, lies the judicial tyranny that currently blights the US.

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