Article 14 of the Oviedo Convention on Human Rights and Biomedicine of the Council of Europe (1997) states that the use of techniques of medically assisted procreation are not permissible for the purpose of choosing a future child's sex, except when serious hereditary sex-related disease is to be avoided. Pre-conceptual sex selection with the aim of family balancing is legal in the USA. However, the European tendencies in health culture, as in China and India, do not regard reproductive justice as part of social justice.
Reproductive liberty is opposed by the Roman Catholic Church, which teaches that medical grounds may not justify pre-conceptual sex selection, though categorizing it as bioethically less harmful than pre-conceptual sex selection aimed at family balancing. Family balancing is a social argument that is not accepted worldwide. The proportions of children of given sex in a family can be determined technically by medical procedures of pre-conceptual sex selection. This is one potential means of family balancing. In Hungary, Section 170 of the Criminal Code specifies that pre-conceptual sex selection for the purpose of family balancing is a crime. The Hungarian legislation is therefore in complete harmony with the Oviedo Convention, enacted in Hungary in 2002 (Act 6 of 2002).
It is a feature of general human rights and human values that social justice may vary from country to country. Reproductive justice may comprise part of social justice, though only with the consent of the society involved and that of its legislation. As regards the rule of law, no country should admit legislation that is in conflict with social legitimacy. In a country where reproductive liberty focuses on elimination of the transmission of serious hereditary sex-related diseases, reproductive justice is not a constituent part of social justice. All this is not a result of the malfunctioning of democracy. The concept of reproductive liberty is rejected by various layers of the Hungarian society, some on religious grounds, some from moral considerations, and some in the belief that elusion of the Oviedo Convention would lead to reproductive tourism to Hungary.
Reproductive tourism is already a problem in the USA. Other bioethical controversies likewise generate legal and ethical problems that need to be resolved, e.g. euthanasia tourism in Switzerland. Pre-conceptual sex selection should be legal only under conditions that make reproductive tourism impossible. Here, the human values of liberty collide with those of restriction. If it is admitted that liberty stands above restriction, reproductive liberty should be regarded axiologically as an objective value. Things are, of course, not black on white. The Oviedo Convention of the Council of Europe does not look on reproductive liberty as an objective value, but as a question of health. Article 12 of the International Covenant on Economic, Social and Cultural Rights of the UNO (1966) declares that the States Parties to the Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The steps to be taken by the States Parties to the Covenant to achieve this right in its entirety shall include, among others, those necessary for the reduction of the still-birth rate and infant mortality, for the healthy development of the child, and for the prevention, treatment and control of diseases.
The Covenant on Economic, Social and Cultural Rights therefore lays down that reproductive liberty is not an imperative norm. It is not even a universal objective value. Some countries view reproductive liberty as an objective value. Supranational, federal and national legislations may opt to liberalize their reproductive policy. On a global level, however, such a must does not exist. Countries less indulgent than, for example, the USA cannot be compelled by international legal tools to follow a liberal path. There are good reasons both pro and contra.
The Hungarian legal practice is reticent on infringement of the rules of pre-conceptual sex selection. A case law has not yet been developed. This is due in part to the fact that the Oviedo Convention was ratified in Hungary only in 2002. It is also true that pre-conceptual sex selection is considered a medical problem to be solved by physicians rather than a question of criminal law. When a medical decision is reached, it is normally not disputed by lawyers. The activity of the public prosecutor in this field is hardly perceptible. Criminal law is an ultima ratio of the state. In Hungary, the crime of illegal pre-conceptual sex selection is punishable by from 1 to 5 years of imprisonment, which appears sufficiently serious to deter physicians from committing it.
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If a physician were brought sub judice, he/she might still argue that the medical treatment leading to illegal pre-conceptual sex selection was not intended, or not even known to cause sex selection, but was merely a side-effect. The Hungarian rule of law holds that, in the event of illegal pre-conceptual sex selection, no criminal liability can be established without the actor's intention or knowledge.
In the Hungarian professional literature, Kovács writes in his PhD thesis that the current decline in the Hungarian population provides a good reason for reproductive liberty for the purpose of family balancing.[1] This line of thought is similarly to be found in the works of other authors. However, pre-conceptual sex selection with the aim of family balancing is de jure inconceivable while Hungary is a State Party of the Oviedo Convention.
The view might be put forward that pre-conceptual sex selection for the purpose of family balancing is not harmful to society, i.e. it does not constitute a criminal offence. Section 4 of the Criminal Code of Hungary prescribes a criminal offence as any conduct that is committed intentionally or (if negligence also carries a punishment) with negligence, that is considered potentially harmful to society and that is punishable under the Criminal Code. An act harmful to society is any activity or passive conduct which prejudices or presents a risk to the person or rights of others, or to the fundamental social, economic or state order of Hungary, provided for in the Fundamental Law. In Hungary, Paragraph 1, Section 182 of Act 154 of 1997 on Health stipulates that procedures to determine the sex of progeny prior to birth may be conducted to identify heritable diseases linked to sex or to prevent the occurrence of such diseases. Infringement of the Act on Health would either prejudice or risk the state order of Hungary. Nevertheless, Hungary is free to opt out of the Oviedo Convention, or to instigate its modification.
In an article in 2013, Nugent writes as follows: Substantial research concludes that most Americans want to have at least 1 boy and 1 girl, yet few have empirically explored what drives this preference. (...) The desire for 1 boy and 1 girl may be motivated by its symbolic capital as a status marker, representing the image of a balanced, ideal family. Based on beliefs about the nonsubstitutability of boys and girls, this ideal represents a form of gender inequality that persists in families.[2] Nugent is not alone in searching for the grounds of reproductive liberty. In the USA, reproductive liberty enjoys full admission by both state and society. Since there is no restriction, pre-conceptual sex selection for family balancing is legal. Any debate that may arise concerns the ethical approach to full reproductive liberty. The golden mean is to be found between full reproductive liberty and its total absence.
In 2008, in the Journal of Medical Ethics, Landau published a noteworthy article on pre-conceptual sex selection in Israel, emphasizing that the Israeli Ministry of Health guidelines of 19 May 2005 permit sex selection after pre-implantation genetic diagnostics for social purposes, among others. That article examines these guidelines and their implications for the women undergoing the necessary medical treatment, for the children born as a result, for other members of the family, and for society in general.[3]
McGowan and Sharp reported on the results of research in the USA in Science Technology and Human Values: The results indicate that couples pursuing family balancing understand justice primarily in individualist and familial terms rather than in terms of social justice for women and girls or for children resulting from sex selection. Study participants indicated that an individual's desire for gender balance in their family is ethically complex and may not be inherently sexist, immoral, or socially consequential, particularly given the social context in which they live. The findings suggest that the social conditions that contribute to prospective users' desires for gender balance in their families may direct them away from recognizing or engaging broader social justice concerns relating to sexism and stratified reproduction.[4] This general problem with pre-conceptual sex selection for the purpose of family balancing has already been demonstrated by many researches in the field. Reproductive liberty does not necessarily signify the presence of social justice. Some may profit from reproductive liberty without any intention to fight for social justice. In contrast, in countries signatory to the Oviedo Convention, social justice may be complete without full reproductive liberty. A state that satisfies the democratic requirements of its society fulfils the criteria of social justice. If a relevant segment of the society finds that pre-conceptual sex selection is de jure properly regulated, social justice does not need to imply a wider meaning of reproductive justice.
The United States example illustrates that reproductive liberty is a democratic need of society, and moreover of individuals. Parents may choose between requesting pre-conceptual sex selection and refusing this freedom. Freedom is to be underlined because freedom is associated with the opportunity to enjoy the choice, but it also includes the liberty to say no. The essence of reproductive liberty is not restricted to the legal possibility to seek family balancing.
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It is important to note that pre-conceptual sex selection cannot be carried out in Hungary by a simple act of the state. Paragraph 4, Section 182 of the Act on Health stipulates that prior to the performance of the procedure of pre-conceptual sex selection, which is to be carried out by a healthcare provider authorized to conduct reproduction procedures, the couple bringing about the embryo must give their written statement of consent, after receiving all proper information. The regulation makes any such reproduction procedure illegal with the consent of the future mother alone. A further consequence is that this procedure can be carried out after the death of the future father only if his consent was given before his death. This implies serious ethical and possibly legal pitfalls.
From the aspect of ethics, the question remains unanswered as to whether the father would have wanted this procedure in the knowledge that he would die before it could be performed. From the aspect of the law of inheritance, the chattels, real estate and other wealth of the deceased can be inherited by a possibly unwanted child. This latter situation can lead to serious changes, in the business policy of family firms, for instance. The list of ethical and/or legal problems may be lengthy.
The serious character of the above question is marked by Section 218 on the Violation of the Right of Self-Determination in Medical Procedures in the Hungarian Criminal Code: Any person who, without the permission or the consent of the entitled party, performs intentionally or knowingly a medical procedure in connection with pre-conceptual sex selection, which is subject to prior consent, or fails to disclose the information required by law for the exercise of the right of consent or permission, is guilty of a felony punishable by imprisonment not exceeding 3 years. (...) Any person who recklessly or negligently performs such a medical procedure without the consent or the permission of the entitled party is guilty of a misdemeanour punishable by imprisonment not exceeding 1 year.
Merhi and Pal wrote in the Journal of Medical Ethics in 2008: Performance of pre-implantation genetic diagnosis per request specifically for sex selection by an infertile couple undergoing medically indicated assisted reproductive technique may not breach the principles of ethics, and is unlikely to alter the population balance of sexes.[5] This assertion reflects a special approach to pre-conceptual sex selection. The authors believe that, if pre-conceptual sex selection for the purpose of family balancing is legal and ethical in the USA, then there is no special reason to forbid it for infertile couples. From a religious aspect, infertility is a reason to decline help for a couple hoping to achieve procreation. From an indulgent religious or ethical aspect, infertile couples should also have the right to a family with children. If this indulgent approach is supported by law, there appears to be no realistic ground on which to refuse pre-conceptual sex selection. This question, of course, does not arise in the countries signatory to the Oviedo Convention. The global community seems divided at present from the viewpoint of reproductive liberty. In matters involving medical and ethical concerns, the extent of this gap is reflected by the widely differing natures of the considerations in the different countries. Whereas authors in the USA scrutinize the special aspects of sex selection for family balancing, Hungarian authors are concerned with the allowance of pre-conceptual sex selection for family balancing or refusing it. The situation has now given rise to practically incompatible views. As an example, the legal norms laid down by Article 14 of the Oviedo Convention of the Council of Europe makes consensus between United States and European considerations irrealistic.
In the event of X-linked recessive diseases, 50% of the male offspring will be diseased, while 50% of the female offspring will be symptomless carriers of the disease. In order to avoid the procreation of diseased individuals in the following generation, pre-conceptual sex selection may be considered. Haemophilia A and haemophilia B are preferably to be avoided, whereas colour blindness does not appear sufficiently decisive as a reason for pre-conceptual sex selection.
Y-linked recessive diseases are manifested in every male offspring, while females are not affected. It may be advisable to avoid retinitis pigmentosa, which leads to blindness, whereas hypertrichosis pinnae auris (hairy ears) in males is more a ludus naturae (a normal variant) than a real disease.
Since there is no legal norm in Hungary that defines serious hereditary sex-related diseases, the responsibility behind the decision-taking is of a medical rather than a legal character, which may result in a grey legal situation. There are good reasons to award the liberty of counselling to the medical profession, though a certain degree of legal control is necessary. Naturally, the strict maintenance of medical ethics will eliminate the danger of elusion of the Oviedo Convention. It is difficult to conceive that physicians would promote the performance of pre-conceptual sex selections contrary to the Hungarian rule of law. In all, the problem in Hungary has three readings:
- legal,
- ethical,
- and medical.
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Zeller reports in her recent PhD thesis on a survey conducted in Hungary. The survey revealed that Hungarians would accept pre-conceptual sex selection only after a first child and only if the couple concerned wanted a second child only if they could select the gender.[6] Jobbágyi is in favour of the Oviedo Convention, putting forward the opinion that the question of reproductive medicine was not properly regulated in Hungary until Act 154 of 1997 on Health.[7] Hungarian viewpoints may not always coincide, but it is essential to respect the plurality of thought and ethics. Appropriately performed surveys may yield information of relevance for the legislator. It is also important to note that opting out of the Oviedo Convention of the Council of Europe is not a way for Hungary to follow at present.
In an article published in the Journal of Medical Ethics in 2014, Zuradzki expressed the essentiality of a pre-implantation genetic diagnosis if there is a significant risk of the birth of a child with a serious condition.[8] Other authors too discuss such highly important topics in the field of reproductive ethics, the ever-increasing number of articles forming a coherent literature. Different standpoints emerge, though the differences are all based on human values and human rights. Science and technology may aid in forwarding reproductive liberty.
The development of reproductive ethics has likewise become tangible in less wealthy countries in the past few years. Technical development is not only a key to reproductive liberty in the better-off regions of the world. The robustness of the debate between state and society is palpable. In poorer countries, the standpoint of physicians representing the state is clear-cut, but is largely in contrast with the view of the underrepresented civil society. Social justice, including reproductive justice, evolves slowly in the poorer parts of the world, though evolution seems ineluctable. Pre-conceptual sex selection is clearly preferable to abortion, which is why less wealthy states should emphasize it.
In the Indian Journal of Medical Ethics in 2002, Karkal reported that: "As a result of sustained agitation by women's groups in the 1980s, a law was enacted banning the use of prenatal diagnostic technology for sex detection enabling sex selective abortion. However, the practice continued despite this law.[9] This is not a question of pre-conceptual sex selection for the purpose of family balancing. Grey family balancing remains a practice in the absence of properly functioning legal control. Pre-conceptual sex selection is allowed under special conditions, but sex selection for the purpose of family balancing involves the abortion of the conceived embryo. Hungary is currently faced with such a problem, and the rules of abortion might be eluded in Hungary. Paragraph d), Section (1), Article 6 of Act 79 of 1992 on the Protection of Unborn Life stipulates that pregnancy may be interrupted up to the 12th week in the event of an acute crisis of the pregnant woman. An acute crisis may be of a non-medical character, depending on the social or financial situation of the woman, for instance. It depends on the quality of the rule of law whether such elusion of the law is feasible or not.
Reproductive justice comprises part of social justice. In Hungary, the Oviedo Convention allows use of the techniques of medically assisted procreation for the purpose of choosing a future child's sex only when serious hereditary sex-related disease is to be avoided. Determination of the serious character of a hereditary sex-related disease is not the task of the legal profession. The responsibility for making such a distinction lies with the medical profession. In Hungary, the broadening of reproductive liberty with a view to making pre-conceptual sex selection legal for the purpose of family balancing is supported by many authors. However, the contrary opinion also exists. In consequence of the elusion of the legal rules of abortion, sex selection for family balancing is not a latent problem in Hungary alone. ■
NOTES
[1] Kovács, G.: A biológia és az orvostudomány hatása a büntetőjogra. PhD thesis, István Széchenyi University, 2007. 8.
[2] Nugent, C. N.: Wanting mixed-sex children: separate spheres, rational choice, and symbolic capital motivations. Journal of Marriage and Family, 2013;4:886-902.
[3] Landau, R.: Sex selection for social purpose in Israel: quest for the "perfect child" of a particular gender or centuries old prejudice against women? Journal of Medical Ethics, 2008;9:e10.
[4] McGowan, M. L., SHARP R. R.: Justice in the context of family balancing. Science Technology and Human Values, 2013;2:271-293.
[5] Merhi, Z. O., PAL L.: Gender "tailored" conceptions: should the option of embryo gender selection be available to infertile couples undergoing assisted reproductive technology? Journal of Medical Ethics, 2008;8:590-593.
[6] Zeller, J.: A testen kívül létrejött embriók morális és jogi státusa a reprodukcióhoz való jog és a tudományos kutatás tükrében. PhD thesis, University of Pécs, 2009. 213.
[7] Jobbágyi, G.: A művi megtermékenyítés jogi és erkölcsi kérdőjelei. Iustum Aequum Salutare, 2006;1-2:147-158.
[8] Zuradzki, T.: Preimplantation genetic diagnosis and rational choice under risk or uncertainty. Journal of Medical Ethics, 2014;11:774-778.
[9] Karkal, M.: Sex selection and the population policy: the medical profession's responsibilities. Indian Journal of Medical Ethics, 2002;2:25.
Lábjegyzetek:
[1] The author is research fellow, University of Szeged, Hungary.
Visszaugrás
