Why criminalizing sex selection techniques is unjust: an argument challenging conventional wisdom.

Introduction The issue of selection is one that often invokes a great deal of controversy. In a society where we value equality between men and women should one be able to choose the of one's offspring? Would males be chosen over females, thus promoting continued inequality between the sexes? What about those whose culture and/or religion prefers that women bear a child of one over the other? What about those who just want an evenly balanced complement of children? These are important considerations to be taken into account when deciding how to regulate the use of selection techniques within society. However, the new legislation dealing with selection in the Assisted Human Reproduction Act (1) appears to have focused solely on the first two considerations, while paying no attention to the necessity of balancing these other valid concerns. The AHRA was recently passed by the Parliament of Canada, after a more than a ten-year delay from the submission of the Royal Commission on New Reproductive Technology's Final Report (2) to the government, and after several earlier incarnations of it failed to become law. (3) The AHRA is, according to many, overly restrictive in terms of the prohibitions and limitations on various procedures and techniques, as well as harsh in terms of penalties. The Act prohibits many activities through criminalization, including therapeutic cloning (4), payment for surrogacy and for the provision of gametes. Section 60 of the AHRA calls for a maximum penalty of 10 years imprisonment, a $500,000 fine, or both for violation of any one of several provisions, including the use of certain selection techniques. (5) While a good deal of the AHRA is fertile ground for critique, this paper will focus on the legal problems that the blanket prohibition and criminalization placed on the use of non-medical selection (6) in s. 5(1)(e) of the Act has created. Specifically, it will be argued that this prohibition through criminalization is problematic for three reasons: first, that it fails to stop all methods that one could employ to select the of one's child; second, that the criminalization of the use of selection techniques legally moves Canada backwards from a position of protecting the health, welfare and human rights of its citizens to one of imposed morality; and third, that it is unconstitutional and cannot be justified under s. 1 of the Charter, and should, therefore, be struck out of the AHRA. A. Background The Science While the generic term sex selection is often employed to encompass all methods by which one may select the of a child, there are several very different techniques that can be employed in order to select for the of a child. Some are more fraught with ethical dilemmas than others, given the invasiveness of and the particular methods employed to achieve the goal of selecting the of one's child. The most blatant and horrifying form of selection of children is that of infanticide, in which a child of the undesired is killed after birth. This is not a common practice in Canada and is not considered a to attempt to control the of a child for the purposes of this analysis, as it is performed after the birth of the child. However, infanticide has been and continues to be utilized in other countries. A study in India noted, in 1995, that approximately 300,000 female infants die each year due to gender discrimination, which includes both the willful killing of the child or neglect that causes death. (7) If other forms of selection, as described below, are not made available to women who face difficult choices when it comes to giving birth to a child of a particular sex, then female infanticide may continue in some places unabated. The first medical technique that can be used to select for is that of pre-natal diagnosis [PND] and abortion. To utilize this method, the pregnant woman must undergo some sort of prenatal testing, such as an amniocentesis, chorionic villus sampling or an ultrasound, which will allow the doctor to determine the of the child, among other things. …

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