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Designing your own child: Australia's regulations

10 June 2019
By Dr Patrick Foong
Western Sydney University
Appeared in BioNews 1001

In Australia, debates on whether prospective parents should be permitted to make their own decisions on gender selection for non-medical purposes have been ramping up. Attitudes on this practice differ and are likely to be influenced by an individual's personal values and culture and also by that of their families and community. A recent case where an Australian couple spent AU$20,000 to go to the USA to choose the gender and eye colour of their babies through IVF has reignited the debate. 

Preimplantation genetic diagnosis (PGD) provides parents with facts about the various characteristics of embryos, which allows them to opt in favour of particular ones. This diagnosis has raised some concerns about the creation of 'designer babies'.

PGD allows for genetic testing of an IVF embryo before it is implanted in the mother's uterus. Parents can then decide not to implant embryos affected by a genetic disease or condition. PGD can also be used to identify the gender of the embryo and be used for sex-selective purposes. Parents may wish to avoid transmission of a sex-linked disease such as haemophilia or they may want to have a baby of a particular sex.

While this technology is of immense benefit to couples with a family history of genetic conditions, the use of PGD for sex selection in the absence of a sex-linked disease is highly contentious. 'Family balancing' raises questions about discrimination based on gender and if this becomes widespread, the ratio between the sexes would not be balanced.

Gender selection is generally prohibited in Australia. Three states have statutes on this issue. The Commonwealth of Australia comprises six states and two territories. Laws are passed by either the Federal Parliament, or the Parliament or Legislative Assembly of the respective states or territories.

According to the Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical Practice and Research 2017 (ART Guidelines), sex selection for medical purposes is permitted (see BioNews 901). Section 8.13.1 of the guidelines provides that sex selection technology may be used to lower the chance of passing on a genetic condition, disease or abnormality that could seriously affect the quality of life of the person who would be born, provided there is evidence to support claims that the condition affects one gender much more than the other.

However, sex selection for non-medical purposes is not allowed. Section 8.14.1 of the guidelines provide that sex selection techniques may not be used unless it is to reduce the risk of transmission of a genetic condition, disease or abnormality what would severely affect the quality of life of the person who would be born. A further clause 8.15.1 states that PGD may only be used to select against genetic conditions, diseases or abnormalities what would severely limit the quality of life of the person who would be born.

After a public consultation in 2015 on this matter, the Australian Health Ethics Committee (AHEC) provided that the guidelines should continue to prohibit non-medical sex selection as there was no sufficient support for an amendment in the ART Guidelines.

It states: 'Following lengthy consideration… AHEC concluded that in some circumstances, sex selection for non-medical purposes is consistent with the guiding principles… AHEC acknowledges that the motivations of those seeking to use sex selection for non-medical purposes cannot be easily identified.

'What is presented as a desire to introduce variety could conceal cultural and/or personal biases. AHEC also recognises that many of the issues surrounding ART are as much social and political as they are ethical. With any controversial practice, society's readiness to accept a practice is a relevant and important consideration. At the time of publication [2017], there is limited research into the question of whether Australians support the use of sex selection for non-medical purposes.'

It is noted that guidelines are not legally binding. However, Australian fertility clinics cannot practice without accreditation which depends on their agreement to follow the ART Guidelines. The ReproductiveTechology Accreditation Centre (RTAC) of the Fertility Society of Australia sets standards for clinics. The RTAC Code of Practice requires fertility clinics to comply with the regulatory requirements including compliance with the ART Guidelines.

Three states (Victoria, Western Australia and South Australia) have legislation that also regulates what they are permitted to do. New South Wales (NSW) also has a similar statute but it does not expressly provide for this issue on sex selection; thus, the fertility clinics in NSW and other states which do not have similar legislation are regulated by the ART Guidelines.

As AHEC seems to be suggesting, much more research needs to be conducted on whether the Australian public is in support of the use of sex selection for non-medical purposes. Depending on the findings, it is possible that the law might change in future.

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