Family Law, Health Care / Medicine, Kids

I Want To Put A Baby In You: And I Want To Choose If It's A Boy Or Girl

Why is model Chrissy Teigen under fire for choosing the sex of her baby during fertility treatment?

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Chrissy Teigen

Chrissy Teigen

Chrissy Teigen is a Sports Illustrated swimsuit model, the co-host of LipSync Battle on Spike TV, and the wife of singer John Legend. Recently, Teigen came under fire for some candid statements about choosing the sex of her baby during fertility treatment.

After years of struggling with infertility, Teigen and Legend underwent in vitro fertilization — a form of Assisted Reproductive Technology, or “ART” — and used what is called embryo pre-implantation genetic diagnosis, or “PGD.” Originally, doctors used the PGD process to detect whether an embryo carried a disease or disorder, so that they could avoid implanting those embryos. But PGD now has a secondary purpose: doctors can also detect the sexes of embryos before implantation. Teigen recently acknowledged to People Magazine that, after obtaining information about the sexes of embryos she and Legend had created, she requested to “put in the girl.”

Teigen faced backlash on her Twitter account — which appears to be the primary medium for scandals now — with sentiments such as, “I do think it’s sad people would pick a specific gender / prefer a specific gender.” Teigen probably didn’t realize that she publicly stumbled into the deep waters of a long-disputed area of ART. So controversial, in fact, that over 30 countries have either banned or severely restricted sex-selective PGD.

  1. Prohibitions on Knowledge. Australia, New Zealand, South Korea, Switzerland, and Vietnam — among many others — are some of the major countries that entirely ban the use of PGD to acquire information about the sex of an embryo. That is, even doctors can’t legally obtain information about the sex of an embryo.
  2. Restriction of Sex-Selection. Many other countries prohibit sex-selective PGD unless the sex of the embryo may relate to a sex-linked disease or disorder.
  • India. India has historical and cultural issues of couples choosing to value the birth of a son over that of a daughter. In order to prevent a major population imbalance, in 1996, India enacted a law to prevent sex-selection specifically to prevent female feticide.
  • Israel. Always a country with interesting ART policies and cases, Israel generally restricts PGD except for use in preventing sex-linked disorders. However, Israel allows parents to use sex-selective PGD in one specific non-medical instance: when parents have at least four children of the same sex, and want a child of the other sex, they can apply to apply to the Ministry of Health for approval of sex-selective PGD.
  1. The Italian Case. Several years ago, Italy had laws in place that prohibited any genetic screening, whether for diseases or for sex determination. A couple challenged the Italian law in the case of Costa and Pavan v. Italy, which presented issues involving not sex-selection, but rather PGD screening for cystic fibrosis.

    2. The plaintiffs, an Italian couple with a young child struggling with cystic fibrosis, brought suit to challenge the government ban and allow the use of PGD to prevent their second child from suffering from the same debilitating and deadly illness. Notably, Italy allowed for abortion up to the first 90 days of pregnancy, thus allowing a couple to terminate a fetus diagnosed with cystic fibrosis during pregnancy, but not prevent it by selecting an embryo without the condition. The Italian government argued that the PGD ban was necessary to discourage “eugenic abuse.” But in 2012, the European Court of Human Rights — which had supranational authority over Italian law in the case — ruled that the prohibition breached the right to “respect of private and family life” under the European Convention of Human Rights.

  2. The United States. Teigen legally has nothing to fear. No state in the United States has banned PGD, regardless of the parents’ motive for using PGD. Notably, however, a number of states, including Arizona, Oklahoma, Illinois, and Pennsylvania, do specifically prohibit sex-selection abortions.

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Although hard numbers are hard to come by, according to one 2012 Slate article, sex selection was estimated to bring in $100 million in revenue, with the average cost of a sex selection procedure costing around $18,000 and as many at 6,000 procedures being performed each year. Fascinatingly, doctors estimated that in the United States, girls are preferred about 70 to 80 percent of the time.

Like many issues in ART, sex-selective PGD forces us to ask questions about appropriate medical decisions, and the legal limitations that we should place on expectant parents. Indeed, given the current ban on sex-selective abortions in some states, it would be unsurprising if some state legislatures in the U.S. enact bans on sex-selective PGD in the next several years. The truth is, however, that such bans would accomplish little of substance. The U.S. is nowhere near a sex imbalance in the greater population, and even Teigen followed up her recent controversial statements by implying that she would like to have another child some day — perhaps a boy the next time. In short, we are not at the “Gattaca” stage yet.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.

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