The Absurdity of Criminalizing the Use of PGD for Sex Selection, and The Current Debate about Sex Selective Abortions

Last week, the issue of some Canadians aborting female fetuses as a means of sex selection and how to prevent this returned to the forefront of fertility law headlines.  Dr. Rajendra Kale, the then-interiim editor of the Canadian Medical Association Journal, reignited this hot topic by publishing his editorial entitled, "It's a girl!" - could be a death sentence.  In his opinion, gender based abortions are an evil propagated by some Asian communities, and is unacceptable in Canada.  His solution to stopping this practice is to deny all Canadian parents access to information about the gender of a fetus until about 30 weeks, at which time it is extremely difficult to get an abortion.
 
Dr. Kale's editorial set off a media storm about the practice of female feticide in Canada, and the merit of Dr. Kale's proposed solution.  See these related articles from the National Post, the Toronto Sun and The Globe and Mail and perhaps as interesting, see the readers' comments.  As would be expected, there were and continue to be many vocal opinions shared across Canada on this subject. 

Andre Picard responded to Dr. Kale's piece with an editorial of his own in his column in The Globe and Mail.  His editorial, Sex Selection is a Complex Issue with Many Nuances is bang on in that, with respect, Dr. Kale's proposed solution is overly simplistic and fails to address the root of the problem.  While it may seem that the issue of sex selective abortions is black and white, it is actually quite nuanced and brings up other important issues relating to multiculturalism, tolerance, reproductive freedoms and feminism that Dr. Kale's solution disregards.  Despite many readers comments to the contrary, just as being a pro-choice advocate is not equivalent to being a pro-abortion advocate, disagreeing with Dr. Kale's proposal does not make one pro-sex selective abortions. 

Now putting on my fertility lawyer hat, what I find truly absurd is that sex selective abortions are legal in Canada, but engaging in PGD (pre-implantation genetic diagnosis) or embryo selection in order to implant embryos of a particular gender (except for the purpose of preventing, diagnosing or treating a sex-linked disease) is a criminal act carrying with it the penalty of up to ten years in jail and/or a $500,000 fine (see sections 5 and 60 of the Assisted Human Reproduction Act).  To my mind, if people are going to select the gender of their child, is it not ethically more acceptable that they do so at the embryonic stage, prior to the existence of a fetus, instead of aborting a fetus?

If we think like Dr. Kale, the simple solution, then, would be to criminalize sex-selective abortions in a similar manner as we criminalize engaging in procedures to determine the gender of an embryo.  But just like Dr. Kale's proposed solution was overly simplistic, so too is this solution.  We can only imagine the repercussions of criminalizing sex-selective abortion, and regardless, it would be all but impossible to develop a system to determine which abortions were only performed for the purpose of sex selection, and no other purpose that is legal (such as not wanting a baby at all).  Instead, to rid the law of this absurdity, we should allow the lesser evil (if it is an evil at all), which is selecting embryos of a certain gender to implant instead of forcing those who will engage in sex selection to abort fetuses.