In 1990, Esperanza Martín, a 43-year-old mother of five boys, asked a judge for permission to choose the gender of her next baby. This time, she wanted a girl. The Mataró courthouse approved her request, but the attorney's office lodged an appeal, and in the end the courts ruled against it. Spanish legislation did not allow treatments to select the baby's gender.
And it still doesn't. The 2006 Human Reproduction Law only contemplates this option for therapeutic goals, that is, to prevent diseases such as hemophilia or muscular dystrophy, which mostly affect males.
But fertility clinics are collecting signatures - they need 500,000 of them - to present Congress with a popular legislative initiative to change all that. Their initiative has reopened a debate that had been dormant for years. Gender selection for non-therapeutic reasons has ethical and legal implications that divide the experts evenly on both sides of the fence.
"This issue has a fundamental problem to do with choosing your children's traits," explains Miguel Ángel Sánchez, a professor of bioethics at Madrid's Complutense University. "It seems to go against regular practices, against history, against the notion of children as a divine gift, a godly creation.
"The role of parents has always been to accept their children just as they come. Anything other than this has traditionally been considered an attack against morality. We are OK with discarding pathological embryos, but not with choosing between two seemingly healthy ones. But this has more to do with traditional attitudes than with rational motives, because there aren't any."
The mere desire for a boy or a girl isn't justifiable legally or ethically"
"The mere desire for a boy or a girl is not justifiable, either legally or ethically," says Natalia López, president of the Spanish Bioethics Association (AEBI), the most conservative of these groups, and a member of the Bioethics Committee of Spain. "Gender selection systems are complex and they have serious consequences, so that legally you need very well-justified reasons for them."
What about cases when parents already have two or more children of the same sex? "That is not a reasonable motive, not to 'balance out' the population, and not because educating one's children is difficult when there is no 'family variability.' Those are the two reasons we typically hear," she replies.
"Being able to select your children's gender has always been a desire of humankind. Two thousand five hundred years ago, Aristotle was already describing methods to favor the birth of children of one or the other gender," says Simón Marina, medical director of Instituto Cefer, the assisted reproduction center that is spearheading the legal reform movement, which has support from the National Association of Assisted Reproduction Clinics (Anacer). "Around 100 couples have requested information on this possibility in the last year, meaning that there's a social demand for it. In 80 percent of cases the couples already had two children of the same sex and were seeking to balance that out. If it is technically possible and it is being done in other countries, why ban it?" he says.
But Professor Sánchez points to another "fear" to add to the list of moral caveats: the fact that letting people choose their children's gender could alter the balance between males and females.
Gender selection without therapeutic purposes is banned across Europe
"Since a majority of societies are sexist, giving people a choice could result in discrimination and increase the male population," he says. "But in developed cultures this is not so. The publications I have consulted show that this fear is unfounded in places where the technique is available. Parents do not tend to choose one gender over the other. It would be a different matter in countries like China or India."
Gender selection without therapeutic purposes is banned across practically all of Europe. In the United States, however, the technique is available for around 20,000 dollars (around 15,000 euros), explains José Codesido, a spokesman for Anacer. It also requires in vitro fertilization and a preimplantation genetic diagnosis to analyze the sex chromosomes. The embryo of the desired sex is then implanted in the woman's womb.
In Spain, assisted reproduction clinics usually analyze five chromosomes: 13, 18, 21, X and Y, although parents undergoing fertility treatments are not told whether the embryo is a boy or a girl, says Marina. In this country, a fertilization cycle with preimplantation genetic diagnosis costs around 8,000 euros, according to figures provided at a press conference by the heads of Cefer and Anacer.
"Choosing your child's gender is an exercise in freedom," says Marina, who considers it "a legitimate reproductive right."
"There are many couples who travel to other countries to undergo the treatment, and this popular legislative initiative wants to make the technique more accessible to people who cannot afford to go abroad," he adds. The US, Mexico, Panama, Cyprus, Czech Republic, Thailand, Nigeria and Jordan allow parents to select their baby's gender, according to these clinics.
The clinics also released the results of a survey of 402 individuals, 81 percent of whom said gender selection should not be forbidden. And 22 percent of respondents said they would do it if they had the chance, said David Marina, Cefer's andrologist (the equivalent for men of a gynecologist). "The most common argument against it is that it's a personal whim, or that you have to accept children as they come because it's the natural thing."
In 2003, the Bioethics and Law Observatory at Barcelona University drafted a document defending a legislative change to allow "the satisfaction of a legitimate if not crucial desire" in specific circumstances and as long as non-discrimination was guaranteed. "The forceful state ban on gender selection represents a barrier that limits citizens' decisions, while being inefficient as a tool to keep away the ghost of designer kids. It can't be justified in our present context for reasons of fear, not even of the demographic sort," reads the text, which was underwritten by specialists in cell biology, embryology, medicine, nursing, philosophy, demography, anthropology and law.
Jaime Peris, chair of criminal law at Murcia University and author of several books on genetics and law, was one of the experts who helped draft this document, as well as other reports that helped strike gender selection from the list of felonies in the 1992 and 1994 penal code reforms. "It ended up as a serious offense," he explains. "We feel that this conduct is not serious enough to merit a penal reproach. I still believe this, and personally I feel there are no ethical reasons to prohibit it. The only valid ones would be scientific in nature, if it were proven that it produced a demographic imbalance between men and women, but studies seem to show this isn't so."
But the president of the Spanish Society of Gynecology and Obstetrics, José María Laílla, said he was "surprised" at the clinics' initiative. "We're talking about selecting embryos for no scientific reason," he said. "Where is the sense in that selection? After that, someone will want a little blonde girl. The clinics' mission is to let couples with fertility problems have children."
Meanwhile, the Health Ministry declined to make any comments on the popular initiative, although a spokesman said there were no plans for legislative reform in the pipeline.
Leopoldo Ortega-Monasterio, the psychiatrist who signed the report that a Mataró judge used to initially approve Esperanza Martín's wish to have a daughter, still remembers the case 23 years later. "Our criteria were based above all on common sense," he says in a telephone interview. "She was a lady who was not out of her mind, who was in full possession of her faculties, and her wish to have a daughter was not delirious, but just a normal expression of her free will; the technique did not present any risks... To apply the law strictly is to try to stem the tide."
He did not follow up on Esperanza, but he thinks she finally managed to have a little girl.