Sperm Sorting, Divergence, and Intimate Discrimination

I'll go back to talking about fellowships in my next post, but a recent New York Times article provides a good jumping off point to discuss something I have been thinking about recently (and maybe even writing about more formally).

The article discusses the development of sex selection technology in the U.S.  It reports that:

Another method, used before the eggs are fertilized, involves sorting sperm, because it is the sperm and not the egg that determines a baby's sex. Semen normally has equal numbers of male- and female-producing sperm cells, but a technology called MicroSort can shift the ratio to either 88 percent female or 73 percent male. The enriched specimen can then be used for insemination or in vitro fertilization. It can cost $4,000 to $6,000, not including in vitro fertilization.. . .  The technique has been used in more than 1,000 pregnancies, with more than 900 births so far, a spokesman for the clinic said. As of January 2006 (the most recent figures released), the success rate among parents who wanted girls was 91 percent, and for those who wanted boys, it was 76 percent.

I am particularly interested in the question of whether sex selection constitutes discrimination, but before I get to that let me briefly set out some of the other major arguments marshalled against sex selection, after the jump.

One major set of arguments focus on the method for selection used, prenatal testing plus abortion in the United States, infanticide in some other places.  While there is an obvious comprehensive moral disagreement in the United States as to when (if ever) abortion is justified, sperm sorting significantly dampens if not entirely eliminates these method concerns (perhaps there is some religious or moral tradition with weak prohibitions on sperm sorting).

A second set of reasons focuses on the consequentialist fear that the aggregation of individual choices as to sex selection will lead to a gender imbalance of new babies that will (a) imperil our reproductive future, and/or (b) have bad social consequences for the gender that ends up behind. 

This is an empirical question.  Some research shows that only a very small percentage of Americans (8% in one study ) would choose to use sex selection (although some earlier research suggested a higher percentage).  And while there is evidence of a strong bias towards boys in some countries (see this research on Pakistan, for example) , the work I've seen in the US is less clear on whether one sex is preferred in a significant way (although there appears to be good evidence of a stronger American preference for having the firstborn be a boy).   Moreover, even if there was a significant effect, individuals might adjust their preferences based on availability -- if people are favoring boys and there is an over-supply, you might favor a girl so she has more suitors to choose from or disfavor a boy for fear he will never marry.  For all these reasons, this argument has not become decisive for me yet, but if you feel differently consider a parallel case that does not have the same problem: sex selection among adoptive parents.

In both the adoption and prenatal sex selection case, a further claim that is sometimes marshalled is that sex selection is discriminatory and ought to be prohibited for that reason alone.  This is a very interesting claim, and one that forces us to confront a larger question of whether the term discrimination makes sense (as a moral judgment) in the context of intimate relationships. 

Consider a potentially parallel question that I have found to deeply divide my friends -- whether individuals who have racial preferences in dating are behaving immorally or whether it is instead an amoral matter, a preference that is not subject to moral praise or blame.  Those who believe in the practice's amorality usually suggest it is just about "attraction," but all forms of racial preference could potentially be reducible to similar "feelings," and yet we do not tolerate them on that basis.  A more reasoned defense might go as follows: discrimination involves making decisions based on morally irrelevant factors, such as race and sex.  But in the dating race and sex are not morally irrelevant,  they are instead highly relevant to attraction, which is a prerequisite to dating. (I'll note but not explore the further interesting issue of whether the connection between attraction and race (or even sex!) is "constructed", and whether the answer to that question makes a difference from the point of view of morality). 

But how defensible is this intuition and how wide is the space for "intimacy" where race and sex are relevant?  If "attraction" is the 800-pound gorilla (if only because it is difficult for many of us to imagine being attracted to both sexes), consider instead friendship.  Is a person's sex morally relevant to friendship?  If someone preferred having male friends to female, would they be a misogynist, or would that instead be an amoral choice?

To relate the question back to sex selection, is it possible that the decision to have a child of one sex rather than the other is likewise an amoral choice.  I may just "prefer" boys, or may just feel more competent at raising them, or something along those lines (a same-sex couple might very well have such gendered feelings about competency, whether they are legitimate or not.) Is childrearing, like dating, an intimate space where we think ordinary principles of discrimination do not apply?  We could make this space "bigger" to encompass hard moral (if not legal) cases in  hospital administration/employment, such as whether to respect a woman's racial or sex preferences as to which Ob-Gyn delivers her baby, or gender or race preferences as to the nanny one hires to care for one's kids.

One pushback I'd expect from someone like my old boss and mentor Michael Sandel, is that it is a corruption of the notion of parenthood to try and act on such preferences, or as he puts it in a piece on enhancements more generally: "The problem lies in the hubris of the designing parents, in their drive to master the mystery of birth. Even if this disposition does not make parents tyrants to their children, it disfigures the relation of parent and child, and deprives the parent of the humility and enlarged human sympathies that an 'openness to the unbidden' can cultivate."

But if that is true, should we also condemn the parent who chooses by sex in adoption?  If anything, the harm there seems more tangible, since it is harm to a child who already exists and will not get adopted, as opposed to the harm of not coming into existence (there are echoes of Derek Parfit's Non-Identity Problem here).  And what about the dating selection case?  Does it corrupt the practice of romantic love to think that things like race ought to be relevant?

Beyond all this we have the further question of whether we think the law ought to be involved in regulating any or all of these examples of discrimination.  Dating selection seems an area where it is pretty clear we don't want the law to intervene, perhaps because we think it powerless to do so.  But sex selection seems a harder case.  A law criminalizing sex-selection technology would be no harder to enforce than a number of other laws on the books.  Should the law and morality be symetrical here, or  this an area where "divergence" (to use Seanna Shiffrin's term ) between law and morality is justified?

Obviously this post asks more questions than it answers, and wades into some controversial territory (hopefully with sensitivity), but I have been thinking about this issue recently and look forward to getting some input from others.