« Size and Governance | Main | Another TWO guides for law review submissions »

Monday, February 12, 2007

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.

Posted by Glenn Cohen on February 12, 2007 at 10:52 AM in Information and Technology | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Sperm Sorting, Divergence, and Intimate Discrimination:

» More on Sex Selection from Reproductive Rights Prof Blog
Last week I posted an excerpt from a recent New York Times article on sex selection (see Ethical Debate Over Sex Selection). For an interesting discussion on the issues raised by the article, read Glen Cohen's post on Prawfsblawg: Sperm [Read More]

Tracked on Feb 12, 2007 4:55:29 PM

» The Ethics of Sex Selection from NOTLEGALROADKILLYET
This is not an argument that I want to enter, but it is very much worth reporting on. The New York Times reports on the possibilities of choosing the sex of one's offspring: Another method, used before the eggs are fertilized, involves sorting spe [Read More]

Tracked on Feb 13, 2007 6:00:19 PM


I wanted to add that it seems that discrimination takes on a different meaning in the egg donor / recipient context because there is an economic relationship between the recipient parent and the so-called donor.

Posted by: Jennifer | Feb 12, 2007 5:14:39 PM

I suspect my thoughts are less sophisticated than many of the other contributors to the comment forum, but I am a law student and I was recently an egg donor. I have spent much time considering the morality of the practices associated with egg donor selection. Recipient parents often intentionally select an egg donor with characteristics not common to the recipient mother (e.g. they seek out donors with higher IQ scores, physical characteristics, athletic ability, educational background while they refuse to consider donors of certain religious persuasions, race, intelligence, educational background, physical appearance, athletic ability, etc.). What should we make of these choices? Should these types of choices be permitted? Is the context in which these decisions are made sufficiently similar to the adoption case that the two should be treated similarly? I would be greatly interested in your thoughts on the subject.

Posted by: Jennifer | Feb 12, 2007 5:10:19 PM

Continuing on the point of "intimate discrimination," one can think of reasons not to forbid such discrimination in some intimate settings, even putting aside issues of practicality (of enforcement) and the question whether or not such preferences are moral or amoral. In dating, for example, it seems unlikely that anyone would want to be paired with a person who has racial or gender preferences but has been forced to date without regard to those preferences. In other words, whether we think it's moral or not, in some contexts, the lesser harm may be to allow discrimination on an intimate level that we would not tolerate by larger or public institutions. Having said that, I'm not sure how it bears on the sex selection question. Do we think parents who are forced to have a child of one gender would be bad parents if forced to parent a child of a different gender? Certainly, parents quite often don't get their wish with respect to their child's gender, and yet they are wonderful parents nonetheless.

Posted by: Caitlin Borgmann | Feb 12, 2007 4:32:47 PM

I guess that even in the adoption case it's hard for me to see that anyone is _harmed_ if the would-be adopter expresses and follows a preference for one sex over another. Not conferring a benefit that one has no duty to confer isn't normally thought of as a harm. At the very least it's not a wronging, and that's what the law should really care about. And of course it's desirable that parents have (nearly?) unconditional love for their children, but it's far from obvious to me that this is inconsistent with having preferences for the sex of one's child.

Posted by: Matt | Feb 12, 2007 2:41:57 PM

Steve -- thanks for reminding me of that point. The limitation of application of Title VII, 42 U.S.C. § 2000e(b) (as well as the ADA, 42 U.S.C. § 12111(5)(A) (2000)) to employers with 15 or more employees (the ADEA specifies 20 employees, 29 U.S.C. §630(b) (2000)) might be thought to de facto carve out a realm for intimate discrimination. That is, assuming some correlation between size of your firm and its intimacy. I suspect these limitations were not introduced for *this* purpose, but I'll defer to those with better knowledge of the legislative history of these statutes on that front.

Rick -- I think you are absolutely correct that the key question for us, in law at least, is whether this is a case of divergence or one of symmetry.
Logically there would be four possibilities -- two symmetrical ones (1) moral = wrong/legal = prohibit (2) moral = correct/legal = permit; and two divergent ones (3)moral = wrong/legal = permit and (4) moral = correct/legal = prohibit.
No one seems to be suggesting that this is case 4. If this is not discrimination (in the sense of wrongful discrimination) then it is case 1, and there is symmetry. If it is wrongful, then we have the further question of whether "law's morality" (as opposed to morality's morality) dictates prohibiting it.

Your point about religious preferences by churches as to employees raises the further difficult question of trying to pick out which elements of a setting make it "intimate". On the one hand, church employees are employees, and we might think the worker-coworker or boss-employee dyads are, *in general*, not intimate in the way dating or child rearing are. But a church may perceive its relationship with its employees as being more intimate than the average employer-employee relationship, and the question would be at what level of generality to define the spheres of intimacy and whether it turns on conventions or essences. (I make a similar point as to the commodification debate in earlier work, here, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=479321)).

Posted by: Glenn Cohen | Feb 12, 2007 2:11:29 PM

Great post, Glen. Although I probably have pretty well-formed views about the morality (and the presence of a victim) in the sex-selection-abortion case, I don't think I can say the same about "discrimination" in the matter of having preferences w/r/t one's child's sex more generally. On the one hand, I'm more sympathetic than (it sounds like) Matt is to the Sandel / Kass-esque idea that we don't want parents to think of their kids too much in terms of projects or artifacts; that we worry about "designing parents." On the other, it seems perfectly innocuous -- and unthreatening to the "convention whereby parents unconditionally love" their children -- for parents who, say, already have a boy or two to want a girl, also.

But, I wonder: should we think about this problem in terms of "discrimination" and "divergence" at all? Is this (or the dating hypo) a context where we might think law and morality will *diverge*, or is it a context where the moral norm at issue -- i.e., the norm against unjustified discrimination -- simply does not apply, because it is not implicated? As you suggest, the word "discrimination" has come to mean "unjustified or blameworthy discrimination", and so we might not think that a preference a daughter over a son, or for a partner to whom one is (for whatever reason) attracted, counts as "discrimination" in this sense. (For what it's worth, I think the debate about "discrimination" by religious institutions and churches raises many of the same questions as your intimate-discrimination post.

Posted by: Rick Garnett | Feb 12, 2007 12:27:31 PM

On the subject of "intimate discrimination," note that fair housing laws generally (perhaps always) exempt units in owner-occupied buildings below a certain size.

Posted by: steve lubet | Feb 12, 2007 12:24:07 PM

Thanks for the comment Matt. I think you are right that the claim of discrimination in sperm sorting faces the *additional* hurdle of whether there exists a *subject* of the discrimination, which I referenced (but did not expand on) in the third to last paragraph with the mention of Parfitt's work. But that problem does not affect the adoption case, where we have to face the question of whether it is discrimination at all head on. One interesting upshot of this point is that although prenatal sex selection gets the attention, it may be adoptive sex selection that is more morally problematic, and our intuitions on the adoption case (which I informally find to be quite pro-selection) may just be wrong.

I've always admired the way Prof. Sandel speaks to a wider public audience in his publications in the New Republic and Atlantic Monthly, although it sometimes has the effect of not giving him the space to fully cash out a claim. I understand he is releasing a book on bioethics this year, which will likely expand on his views on this matter.

But one way to recapitulate his point (though I suspect it might be a more consequentialist way than Michael would put it) would be: it is beneficial to have a convention whereby parents unconditionally love (or at least feel pressure to unconditionally love) their children, for child well-being, if nothing else. Sex selection, by suggesting that something like sex is relevant to whether (or how much) you love your child, undermines that convention.

That claim, as I've put it, would depend on an empirical question of whether we think sex selection is likely to undermine the larger convention. It would also depend on a claim that choosing the sex of the child is understood to be a suggestion that sex is relevant to whether (or how much you love the child), or at least will be *perceived* to be relevant.

This is not to say I am convinced by the argument (I am very much mulling this over), but I think this would be a charitable statement of something with which Sandel might respond.

Posted by: Glenn Cohen | Feb 12, 2007 11:28:14 AM

The discrimination claim here seems week since there is, at least in the sperm sorting approach, no one who is even plausibly harmed by the action. (I'd want to say that there is no one who is harmed even in the abortion case, but that's of course more controversial.) But, without harm of some sort (assuming we don't throw the sex ratios massivley out of wack, and I don't think that's a huge worry here) I don't see why this is anything more than a preference and one that's no ones buisness.

On a seperate note I'd wonder if Sandel has an argument for his view expressed above. I have to admit that I find much of the effort people put in to have 'perfect' families and the like distasteful and a sign of some unpleasent traits in people. But Sandel's position, so far as I've understood it, seems to but no more than an expression of his feelings w/o much of an argument at all, something we'd expect from Kass, maybe, but not really worthy of him.

Posted by: Matt | Feb 12, 2007 11:09:09 AM

The comments to this entry are closed.