Can't You Control Your Children?

In his paper "Preconception Gender Selection" (PGS), John Robertson (2001) discusses two issues: What limitations, if any, should the government impose on use of PGS? And what restrictions, if any, would it be justifiable for physicians to impose on prospective parents who request PGS? For both issues, the focus is on PGS for parental preference, as opposed to prevention of sex-linked diseases. The first issue requires the use of our constitutional law framework. According to that framework, procreative liberty is a fundamental right, which entails that government restrictions must be justified by compelling state interests. Meeting the test of being "compelling" requires especially strong reasons for infringing procreative liberty; according to Robertson, meeting the test typically requires showing that substantial harm to others would occur. The second issue does not require the constitutional framework. Here the question is whether some individuals—either individual physicians or groups of physicians —are justified in refusing to carry out patients' requests for PGS. In arguing that it is ethically justifiable for physicians to refuse such requests, it is not necessary to show that there are compelling reasons for the refusal. It is only necessary to show that the arguments for refusing are better than the arguments for carrying out the requests.

Unfortunately, this basic difference between constitutional and professional ethical argumentation is not clearly acknowledged in Robertson's article. Throughout the paper he appeals to the more demanding constitutional framework, even where the less demanding framework for professional ethical justifiability is all that is required. For example, he argues that PGS for offspring diversity is ethically permissible, despite the objection of some ethicists that it is sexist. He concludes his argument by stating:

If this view is correct, then those who deny that biological gender differences exist, or who assume that any recognition of them always reinforces sexism or disadvantages women, will not have carried the burden of showing that a couple's use of PGS for offspring gender variety or other nonintentionally sexist uses is so harmful to women that it justifies restricting procreative choice. Until a stronger basis for finding harm to others from PGS exists, policies to prohibit or substantially restrict its use would not be justified.

Here Robertson appeals to the test of substantial harm. Later he advocates physician guidelines that permit PGS for gender diversity, but the only arguments for such guidelines that can be found in the paper appeal, like this one, to the test of substantial harm. This blurring of constitutional and professional ethics argumentation creates a problem in trying to justify physician guidelines. Robertson seems to approve of guidelines that permit PGS for gender diversity because objections to such guidelines do not meet the demanding "compelling reasons" test. But objections to physician guidelines simply do not have to meet this high standard.

This problem is significant because there are important arguments bearing on the issue of physician guidelines that Robertson does not address. In particular, in discussing concerns about the genetic control of offspring, he does not present those concerns in a particularly forceful form. As a result, his paper does not engage those issues very well. There are at least two concerns that should be discussed, and although they overlap, I believe it is useful to distinguish between them. First, there are concerns about the genetic enhancement of offspring. Second, there are concerns about parental genetic control of offspring characteristics irrespective of whether the purpose of the control is properly labeled "enhancement" (as in the case of control for offspring diversity, eye and hair color, or various other possibilities).

Let me begin with the first set of concerns, which is relevant to the issue of physician response to requests for PGS for firstborn male offspring. I want to emphasize that sex selection is not itself a form of enhancement. To claim otherwise is to imply that one gender is superior to the other. However, it is obvious that in our male...