Sex Selection of Embryos: Inside of Canada
Adrian and Lindsey are a gay couple who had twin girls through surrogacy two years ago. They have decided to complete their family building through a second surrogacy, but want to balance their family with the addition of a son. Tristan and Riley are also building their family through surrogacy, but want to have a daughter in order to avoid a sex-linked disease for which Riley is a known carrier. Are either or both of these couples permitted to select the gender of the embryo to be transferred to their surrogate mother?

The answer to this question results from important Canadian government public policy decisions, which have far-reaching social and legal implications, and which were incorporated into the Assisted Human Reproduction Act, S.C. 2004 c. 2 (the “AHRA”). This piece of federal legislation governs the area of third-party reproduction in Canada, and clearly states in Section 5(1)(e) that:

No person shall knowingly, for the purpose of creating a human being, perform any procedure or provide, prescribe or administer any thing that would ensure or increase the probability that an embryo will be of a particular sex, or that would identify the sex of an in vitro embryo, except to prevent, diagnose or treat a sex-linked disorder or disease.

On the face of it, the answer appears very straightforward: sex selection for family-balancing purposes is a prohibited activity under the AHRA, but sex selection for legitimate medical reasons is a permitted activity. Therefore, in Canada, pursuant to the AHRA, Adrian and Lindsey will not be permitted by their fertility clinic to transfer to their surrogate mother an embryo of the desired gender, while Tristan and Riley will be permitted to do so.

But is this the right result for Adrian and Lindsey? No, in my view. The provisions of the AHRA that prohibit sex selection for social, non-medical reasons were meant to protect against discrimination based on cultural, social, and economic biases, typically in favour of male children, which would (i) lead to a distortion of the natural sex ratio and thereby create a gender imbalance, and (ii) reinforce discriminatory and sexist stereotypes, typically towards female children. However, when intended parents already have a child at home and simply desire a child of the other gender, the legitimate concerns of gender imbalance and discrimination do not come into play whatsoever. In my view, the AHRA should be amended to allow for sex selection for family-balancing reasons, with the appropriate safeguards in place.

Adrian and Lindsey may have another alternative, however.

Sex Selection of Embryos: Outside of Canada
Although a fertility clinic in Canada would be required, under the AHRA, to decline Adrian and Lindsey’s request for sex-selection for social, non-medical reasons, the question remains open whether they can ultimately, and legally, attain their objective in a jurisdiction other than Canada. If Adrian and Lindsey already require assisted reproductive technology to have a family and have embryos created and tested at a fertility clinic in the United States, where this type of testing for non-medical reasons is legal (and widely advertised and popular), and move only the embryos of the desired gender to a clinic in Canada to be transferred to their surrogate mother, have they contravened the AHRA? My view is that they have not. Or, if Adrian and Lindsey’s surrogate mother attends at a fertility clinic in the United States and receives an embryo transfer of the desired gender, have they contravened the AHRA? Again, my view is that they have not. In both cases, the activities in question have taken place outside of the scope of the AHRA. The fact that embryos can be created, genetically tested and moved into Canada, either in a petri dish or in utero, from a jurisdiction where the AHRA does not apply raises interesting conflict-of-laws issues and important questions about the strength of our legislation in this rapidly changing area of fertility law.

Sex Selection of Embryos: The Medical Perspective
Pre-implantation Genetic Diagnosis (“PGD”) is a screening process whereby embryos are tested for known genetic markers of specific inherited disorders so that only healthy embryos are transferred to the uterus of the surrogate mother or the intended mother in order to initiate a pregnancy. As part of the process, PGD will also reveal the gender of the embryo. PGD is an invaluable tool for people who are known carriers of single gene or chromosomal disorders (such as Huntington’s Disease, Muscular Dystrophy and Cystic Fibrosis), some of which are sex-linked (such as Turner Syndrome, Hemophilia and Fragile-X Syndrome). By transferring an embryo of a particular gender, sex-linked diseases and disorders can be prevented. In many places other than Canada, PGD is also used for social and non-medical reasons.