Comparing Non-Medical Sex Selection and Saviour Sibling Selection in the Case of JS and LS v Patient Review Panel: Beyond the Welfare of the Child?
- 467 Downloads
The national ethical guidelines relevant to assisted reproductive technology (ART) have recently been reviewed by the National Health and Medical Research Council (NHMRC). The review process paid particular attention to the issue of non-medical sex selection, although ultimately, the updated ethical guidelines maintain the pre-consultation position of a prohibition on non-medical sex selection. Whilst this recent review process provided a public forum for debate and discussion of this ethically contentious issue, the Victorian case of JS and LS v Patient Review Panel (Health and Privacy)  VCAT 856 provides a rare instance where the prohibition on non-medical sex selection has been explored by a court or tribunal in Australia. This paper analyses the reasoning in that decision, focusing specifically on how the Victorian Civil and Administrative Tribunal applied the statutory framework relevant to ART and its comparison to other uses of embryo selection technologies. The Tribunal relied heavily upon the welfare-of-the-child principle under the Assisted Reproductive Treatment Act 2008 (Vic). The Tribunal also compared non-medical sex selection with saviour sibling selection (that is, where a child is purposely conceived as a matched tissue donor for an existing child of the family). Our analysis leads us to conclude that the Tribunal’s reasoning fails to adequately justify the denial of the applicants’ request to utilize ART services to select the sex of their prospective child.
KeywordsAssisted reproductive technology Sex selection PGD Saviour siblings Health law Selective reproduction
- Bennett, B., and M. Smith. 2014. Assisted reproductive technology. In Health law in Australia, 2nd ed., edited by B. White, F. McDonald, and L. Willmott. Rozelle, N.S.W.: Thomson Reuters.Google Scholar
- Chalmers, D. 2013. Regulatory legitimacy: The case for controlling and restricting access to PGD for sex-selection purposes. In Regulating pre-implantation genetic diagnosis: A comparative and theoretical analysis, edited by S. McLean and S. Elliston, 148–170. London: Routledge-Cavendish.Google Scholar
- Fertility Society of Australia, Reproductive Technology Accreditation Committee. 2017. Code of practice for assisted reproductive technology units (revised October 2017). Melbourne, Australia. https://www.fertilitysociety.com.au/wp-content/uploads/2017-RTAC-ANZ-COPFINAL-1.pdf.
- Gavaghan, C. 2007. Defending the genetic supermarket: Law and ethics of selecting the next generation. London and New York: Routledge-Cavendish.Google Scholar
- Human Fertilisation and Embryology Authority. 2003. Sex Selection: Options for Regulation. London, United Kingdom: HFEA.Google Scholar
- Human Genome Research Project. 2006. Choosing genes for future children: The regulatory implications of preimplantation genetic diagnosis. Dunedin, N.Z.: Human Genome Research Project.Google Scholar
- Kant, I. 2001. Fundamental principles of the metaphysic of morals. In Basic writings of Kant, edited by A.W. Wood, 143–222. New York: Modern Library.Google Scholar
- McLean, S. 2006. Modern dilemmas: Choosing children. Edinburgh: Capercaillie Books.Google Scholar
- National Health and Medical Research Council (NHMRC). 2015. DRAFT Ethical guidelines on the use of assisted reproductive technology in clinical practice and research: Public consultation—2015. National Health and Medical Research CouncilGoogle Scholar
- National Health and Medical Research Council (NHMRC). 2017. Ethical guidelines on the use of assisted reproductive technology in clinical practice and research. National Health and Medical Research Council, E7JPR814569.Google Scholar
- Patient Review Panel. 2013. Guidance Note No. 2: Approval for sex-selection using pre-implantation genetic diagnosis.Google Scholar
- Robertson, J. 1994. Children of choice: Freedom and the new reproductive technologies. Princeton: Princeton University Press.Google Scholar
- Sandel, M. 2007. The Case against perfection: Ethics in the age of genetic engineering. Cambridge, Massachusetts: Belknap Press.Google Scholar
- Smith, M. K. 2015. Saviour siblings and the regulation of assisted reproductive technology: Harm, ethics and law. London; New York: Routledge.Google Scholar
- Taylor-Sands, M. 2013. Saviour siblings: A relational approach to the welfare of the child in selective reproduction. Abingdon, Oxfordshire: Routledge.Google Scholar
- Taylor-Sands, M. 2017. Non-medical sex selection: Sliding down the slippery slope? in Tensions and traumas in health law, edited by I. Freckleton and K. Petersen (2017). Leichhardt: Federation Press (forthcoming).Google Scholar
- Victorian Assisted Reproductive Treatment Authority. 2010. Conditions for use of tissue typing in conjunction with preimplantation genetic diagnosis (PGD).Google Scholar