Right to choose gender of a child

By Legal Eagle

A Victorian couple with three sons are asking VCAT to allow them to select the gender of their next child. The couple are desperate for a girl after they had a baby girl who died a few days after birth. The Herald Sun reports:

[The couple] are asking the Victorian Civil and Administrative Tribunal to allow them to choose the sex of their next child in a test case, and give them the opportunity to have the daughter they were denied.

An independent panel, known as the Patient Review Panel, recently rejected the couple’s bid to choose the sex of their next child using IVF.

They have gone to the tribunal to have the decision overturned. The tribunal recently ruled it had the power to review a decision made by the Patient Review Panel.

The tribunal will hear the couple’s case in March.

So determined is the couple to have a girl that recently they terminated twin boys, conceived through IVF.

They said it had been a traumatic decision to make but they could not continue to have unlimited numbers of children.

If their bid to have a daughter fails they say they will go to the US so they can conceive a girl.

The couple, who cannot be identified, conceived their three boys naturally.

The woman – in her thirties – says she loves her sons but would do anything to have a daughter.

“After what we have been through we think we are due for a bit of luck,” the man said.

“We want to be given the opportunity to have a girl. We know we definitely won’t be replacing her in any way, but want the chance to have the baby girl we don’t have.”

Section 28 of the Assisted Reproductive Treatment Act 2008 (Vic) bans parents from selecting the gender of an embryo:

(1) A person carrying out a treatment procedure must not use gametes or an embryo, or perform the procedure in a particular way, with the purpose or a purpose of producing or attempting to produce a child of a particular sex.

Penalty: 240 penalty units or 2 years imprisonment or both.

(2) Subsection (1) does not apply if –

(a) it is necessary for the child to be of a particular sex so as to avoid the risk of transmission of a genetic abnormality or a genetic disease
to the child; or

(b) the Patient Review Panel has otherwise approved the use of the gametes or embryo for the purpose or a purpose of producing or attempting to produce a child of a particular sex.

I presume that these provisions were enacted to prevent parents from preferencing gametes of one gender. In some cultures there is a very strong bias towards having a male child (eg, in some cultures in China and India). An Indian friend told me that he and his wife were banned from finding out the gender of their child before she was born because India is trying to prevent the abortion of female foetuses.

Of course, I am lucky enough to have had a child of each gender naturally. I never really minded which gender my children were, and did not have a strong preference. I still found out what gender they were before they were born because I’m insanely curious, and it reduced 50% of the names list immediately. I feel very sorry for the couple having lost a daughter, and I understand that if one has had three sons and lost a daughter, the desire to have a daughter would be very great.

Still, I can’t help feeling deeply uncomfortable about this story. I have a friend who has been trying to conceive a child via IVF (no success yet, but my love and prayers are with her). She would love to have a child, whatever the gender. It has been a gruelling and awful process for her. I simply can’t imagine how she would feel at this story. It just seems so selfish when the couple already has three other healthy children.

On the other hand, on a pragmatic level, I wouldn’t want this couple to keep trying to conceive children and aborting male foetuses, so perhaps it would be better to let them have a female foetus implanted. But would it open up the floodgates for others to argue they wanted to select the gender of their child via IVF?  Sometimes technology makes life easier, but sometimes it also makes the ethical questions in life so much harder…


  1. Jeremy Gans
    Posted January 13, 2011 at 7:13 am | Permalink

    NF, s28 actually prohibits ‘use of gamettes/embryos’ OR ‘procedures in particular ways’ for sex selection. I agree that the procedures option is unlikely to matter. The interesting bit is the use option. If it doesn’t include getting someone pregnant, then what does it include?

    Note that the ART Act was enacted after the Abortion Law Reform Act, so presuambly it can override it. Section 28 is in the same terms as a providion in the earlier Infertility Treatment Act, enacted at a time when abortion was illegal unless within the defence of necessity. Neither the VLRC report nor the EM contain any discussion of the reach of s28

  2. Jeremy Gans
    Posted January 13, 2011 at 8:53 am | Permalink

    Nope, I’ve never found an EM discussion much use. That’s probably mostly a good thing, as they border on the undemocratic. They are rarely discussed in parliament and there seems to be no way to amend them.

    In this case, there’s no surprise that this question wasn’t discussed, whether or not it was thought of. If you were trying to get the Bill passed, you wouldn’t touch the abortion issue with a barge pole!

    But surely it’ll have to be considered in VCAT if the applicants rely on the lawfulness of abortion as an alternative…

  3. desipis
    Posted January 13, 2011 at 10:18 am | Permalink

    Here’s a thought: is it a breach of s. 28 to go through an IVF procedure intending to /abort the fetus if it is the ‘wrong’ sex?

    Section 28 refers to the person performing the procedure, not the patient. Unless it’s the one doctor performing both the IVF and the abortion (or perhaps some form of conspiracy between doctors) I don’t see how the section would apply.

    Also the start of that sentence:

    A person carrying out a treatment procedure must not use gametes or an embryo…

    indicates that the restriction on “use” is only within the context of a treatment procedure (as far as s28 is concerned). A “treatment procedure” is defined in s3 as:

    treatment procedure means-

    (a) artificial insemination, other than self-insemination; or

    (b) assisted reproductive treatment;

    I think you’d have to get creative to fit an abortion within “assisted reproductive treatment”.

  4. Nick Ferrett
    Posted January 13, 2011 at 10:22 am | Permalink

    What desipis said

  5. Jeremy Gans
    Posted January 13, 2011 at 11:00 am | Permalink

    D, it’s true that the offence is committed by the doctor (although the parents could presumably be prosecuted for complicity in the doctor’s crime.)

    However, s. 28 certainly doesn’t require that the doctor must be the one that performs the abortion. Rather, it requires that the doctor have ‘a purpose’ of producing a child of a particular sex. That would surely be satisfied if the doctor knows of the parents’ plan to abort all boys. (Oblivious doctors are safe though. Not a great incentive for doctor-patient communication, but c’est la vie. But the secret’s out in this case, isn’t it?)

    You might try to distinguish between the doctor’s purpose (to help the parents achieve their purpose) and the parents’ purpose, but that’d create a worrying loophole in s. 28, I think.

    The definition of treatment procedure (ART + AI) covers all medical treatment to procure a pregnancy other than by sex or self-insemination. So, to the extent that ‘use of gamettes/embryos’ is tied to the procedure, the requirement is for the purpose to exist prior to the pregnancy. But why does that rule out a pre-pregnancy purpose to abort boys during the pregnancy?

    The key point is that s. 28 is all about purpose. It limits who has the purpose and when they have the purpose (the doctor at the time of the treatment) but not how the purpose is to be effected.

  6. Nick Ferrett
    Posted January 13, 2011 at 11:47 am | Permalink

    Also, the fact that it creates an offence means that you would read the provision as narrowly as possible.

  7. desipis
    Posted January 13, 2011 at 1:18 pm | Permalink

    Jeremy, I guess we could stretch that “purpose” even further. For example:
    A women goes for IVF and successfully has a male child. She goes back a second time and says to the Doctor: “I hope it’s a girl this time”, but it ends up being another boy which she keeps. Going back to the doctor for a third treatment she says “I’m going to keep having children until I get a girl”. Does this make the purpose of the doctors actions “to produce a child of a particular sex”?

    I’m uneasy about judging doctors on the basis of what their patients may or may not do in the future. Are we going to start charging doctors with aiding crimes when they provide treatment to people they suspect may commit a criminal act sometime in the future?

    That said, there is a clear intent to consider the future possibilities, both in the “presumption against treatment” section and in the guiding principles:

    5. Guiding principles

    It is Parliament’s intention that the following principles be given effect in administering this Act, carrying out functions under this Act, and in the carrying out of activities regulated by this Act-

    (a) the welfare and interests of persons born or to be born as a result of treatment procedures are paramount;

    I guess it could be argued that the doctor should not provide treatment where they believe in a significant risk (abortion for being the wrong gender) to the “person to be born”.

    As far as the case in the news article is concerned, I think that and the next bit of the guiding principles could be relevant:

    b) at no time should the use of treatment procedures be for the purpose
    of exploiting, in trade or otherwise-

    (i) the reproductive capabilities of men and women; or

    (ii) children born as a result of treatment procedures;

    I imagine the Patient Review Panel could have concerns the child would be exploited as a means of therapy for the mother:

    But the woman concerned, who is consumed by grief, said she had become obsessed with the idea of having a daughter and it was affecting her psychological health.

    I also noticed there’s nothing in the guiding principles about any broader social impacts through the use of treatment, but then neither is there anything that would support an exception in this case.

  8. Patrick
    Posted January 13, 2011 at 1:23 pm | Permalink

    EMs are interesting indeed. The ATO is a big fan of them.

    However prevailing jurisprudence, and indeed the bare words of sections 15AA and 15AB of the Acts Interpretation Act 1901, suggest a very limited scope for the EM.

    And I can’t find it off the top of my head, but there was a recent(ish) case, I think a bankruptcy case in NSW, where the judge pointed out a few errors in the EM and then said, in light of the manifest errors as to the actual operation of the law, how could he possibly rely on the EM? I’d love it if anyone had a cite!

    And I am sure there are older judgements (perhaps McHugh or Dawson or maybe even Callinan?) addressing use of the EM to clarify the purpose of the relevant provisions which pour scorn on the idea that the EM expresses the purpose or intention of anyone other than its drafter. Some sophisticated Judges have even commented on the fact that given the sausage factory model of legislation the search for a unified Parliamentary intention is misguided in the first place.

  9. desipis
    Posted January 13, 2011 at 1:35 pm | Permalink

    I wonder if the definition of “treatment procedure” excluding self-insemination provides somewhat of a loophole for s28. Could the treatment center provide the equipment and training to do self-insemination, and simply allow their client to select the embryo and perform the procedure?

  10. Jeremy Gans
    Posted January 13, 2011 at 5:48 pm | Permalink

    NF#56, the presumption that penal provisions should be read narrowly is pretty weak these days. The HCA refers to it as a principle of ‘last resort, given that most interpretation issues (perhaps including s28) are to be resolved by purposive interpretation. Given the comprehensive interpretation principles pointed out by desipis, it’s hard to see how the penal presumption will matter. Surely, ‘best interests of the child’ (at least) will trump it.

    D#57. ‘Purpose’ is a very tricky word (and in my view should not be used at all in criminal offences, especially where it’s the core of the offence, as here.) You could perhaps distinguish between a ‘hope’ (where there’s a wish, but no reason to expect it to transpire) and a ‘purpose’ (where there’s some reason to think you can influence things.) I dunno.

    P#58. The EM of the Charter of Human RIghts and Responsibilities is my personal bug bear. A wrong date in the EM to the transitional provision has been wrongly relied on by a dozen judges to date. And the EM to the rights themselves are packed with nasty caveats that have no place in any EM, let alone one for the Charter.

    D#59. Self-insemination is a deliberate loophole for the whole ART Act (as no-one wanted to try to regulate turkey basters.) For similar reasons,so is sex (so, if anyone produces a drug that influences gender through natural conception, then it isn’t subject to s. 28.) For now, I doubt that any ‘use of gamettes or embryos’ is presently viable for either sex or self-insemination, but maybe in the future?

  11. Nick Ferrett
    Posted January 13, 2011 at 8:25 pm | Permalink

    S 28 has to be construed in the context of the whole of the statute: AG v Prince Ernest Augustus of Hanover [1957] AC 436.

    S 1 of the Act provides that one of the main purposes of the Act is to “to regulate the use of assisted reproductive treatment and artificial insemination procedures (other than self-insemination)”. There is no similar provision about regulation of pregnancy more generally.

    The guiding principles to which desipis refers (in s 5) are to “be given effect in administering this Act, carrying out functions under this Act, and in the carrying out of activities regulated by this Act”. There is nothing to suggest that they are intended to expand the meaning of other provisions such as s 28.

    The opening words of s 28(1) effectively confine the rest of the provision: “A person carrying out a treatment procedure must not …”. Plainly the provision is talking about the use of gametes or an embryo in the course of a procedure. This interpretation is supported by the apparent limitation of the Act to regulation of artificial insemination rather than pregnancy on a more general basis.

  12. Patrick
    Posted January 13, 2011 at 8:53 pm | Permalink

    Jeremy, that’s ok, the entire Human Rights Charter is a bugbear of mine 🙂

    One Victorian Supreme Court Judge was enthusiastically pressed with submissions on the Charter by both parties. He relegated it to a footnote noting that counsel had directed him at length to the implications of the Charter applying but that in the end he couldn’t see any, or something to that effect. Another case of my wishing I had the citation.

  13. Jeremy Gans
    Posted January 14, 2011 at 6:16 am | Permalink

    NF#63.Ii’m not saying that s28 regulates pregnancy. Rather, what s28 regulates is the purposes the doctor has in mind when she/he is doing a treatment procedure, including when she/he is putting a gammete/embryo in someone. If the doctor’s purpose is to produce a child of a particular sex, then there’s a breach of the section.

    Your argument is that the words ” with the purpose or a purpose of producing or attempting to produce a child of a particular sex” should be read down so as to only cover purposes brought into effect by the procedure itself, rather than subsequent (and also, I assume, prior) actions. Maybe you’re right, but I think that any interpretation that involves putting words into a provision – especially one whose purpose could be undermined by technical loopholes – needs pretty strong justification.

  14. Jeremy Gans
    Posted January 14, 2011 at 10:38 am | Permalink

    I’ve done a little more digging around to find similar provisions to s. 28 elsewhere. The big news is that there are hardly any similar provisions elsewhere. All other Australian jurisdictions, plus the UK and NZ, sensibly regulate this issue through ethical guidelines for ART practitioners. (The VLRC report is misleading on this point, claiming that other jurisdictions have bans like Victoria’s, but then citing ethical guidelines for the most part.)

    One exception is Canada (in its Assisted Human Reproduction Act 2004):

    5. (1) No person shall knowingly… (e) for the purpose of creating a human being, perform any procedure or provide, prescribe or administer any thing that would ensure or increase the probability that an embryo will be of a particular sex, or that would identify the sex of an in vitro embryo, except to prevent, diagnose or treat a sex-linked disorder or disease.

    There’s a ten year penalty!

    Canad’s provision, in contrast to Victoria’s s.28, is all about procedures ‘that would ensure or increase the probability’ of a particular sex. If Victoria had wanted to similarly limit its offence, it could have inserted those words after ‘perform the procedure in a particular way’.

    A better (or additional) way to limit the Victorian offence would be to insert the words ‘of a known sex’ after ‘use gamettes or an embryo’. Canada achieves the same outcome by barring pre-pregnancy sex identification. (India tries to achieve a much broader ban by barring all pre-birth sex identification, and doesn’t bother with any other regulation of procedures.)

    Or we could just do things the Victorian way and just read the words as meaning whatever our preconceptions say they should mean.

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