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Thursday, January 16, 2003

Session 4: Beyond Therapy: Controlling Sex of Children

Discussion of Staff Working Paper,
"Ethical Aspects of Sex Control"

CHAIRMAN KASS: While the last – let's see we've got I think Janet and Charles. Well, let me just remind people – this will take a moment. You have your information about dinner, which is at 6:00, at 1201 F Street, which is a couple of blocks south and west of here, but walking distance for sure.

Again, I remind you, these additional materials are for tomorrow. Professor Merrill's outline for his talk, along with his advance paper, and then these materials which will help us get started in the discussion of neuropsychopharmacology and the questions of social control in the discussion we'll have for ourselves before the public session.

In this session, we move from sort of general questions of Beyond Therapy to a particular case of it. The staff, as I indicated to you, has been working up several of the cases on which we had expert presentations in the months from – well, actually starting in July, but mostly September, October and December.

The paper that was sent to you, a working paper prepared, in fact, by Adam Wolfson, primarily, with a little help from others. Adam, I should say, has been made the full editor of The Public Interest, and as a result of that assignment has had to give up his one day a week with us, but let the record show how much we've appreciated his work for us, and we hope we can bring him back here simply to sit in and join us.

But this is a working paper of interest in its own right, but also of interest as a kind of model for what we might be doing with some of the others. This one falls somewhat short by design on the technological side.

We will beef that up in a subsequent draft, but this at least gives us something to go on and something to talk about. In the constructive part, part two of the paper, we have a section on terminology and an argument made as to why we should call this "sex" rather than "gender", and "control" rather than "selection".

We have some discussion about why this might be an instance where the principle of liberty might run into some limits, namely that because children are involved and it is their identity which is at stake, this is not purely a self-regarding free activity, and also owing to the possible changes in the sex ratio that there are social effects that might be socially costly.

There are two arguments having to do with the human context, one following from the fact that this is control of sex, and the other that is the fact of some choice or control or foreordaining of a certain important feature of human children, that we have two discussions in parts three and four of the human context having to do with the meaning of sexuality as an essential aspect of identity, and then returning to the questions of choosing a particular child and how this feeds into matters of manipulation and parental control, and then finally a section which is not written, but depends, in fact, upon what the Council is interested in saying for itself, where the question of policy is at least raised as to whether or not there's something on this topic that we'd at least like to flag, whether as recommendations or more likely as alternatives.

Nothing specified there. It seemed to me that it would be useful to go around to see what kind of general reactions one has to this analysis. I think one should know that at least there are certain winds of change in the assisted reproduction community, moving in the direction, I think, of favoring the use of some of these techniques and I was told since the last meeting that there are quite a number of clinics, especially out in California, in which they are, in fact, doing this, using PGD for this purpose already.

The fact that there are already changes in the sex ratio at birth in this country among certain sub-populations means that the practice is going on, I suspect, probably more with sonography and selective abortion than with preimplantation genetic diagnosis, of which there have been, I think, only about one thousand births, so that's hardly enough to produce the kind of skewing that we have seen.

But I think what we should do is try to get some reaction to a form of presentation and moral analysis, and then see where Council members are as to whether this is a worrisome enough matter in which we want to do more than just present the analysis.

So let me just declare the floor open for substantive comment first and then policy.

PROF. GEORGE: Yes, Leon, on the subject of sex selection abortion. Of course, the country has had a running debate over abortion itself for 35 years or more now, but my sense is that there's a fairly wide consensus that sex selection is not a good reason for abortion, and I believe that there are jurisdictions, I don't know if these laws are enforced, but there are jurisdictions that at least prohibit sex selection in cases of late-term abortion.

I might not be right about that. I'm sorry Mary Ann's not here because she would know right off the top of her head, but if in fact sonography leading to sex selection abortions is a significant part of the change in the ratio, then I wonder if the morality of sex selection abortion really ought to be front and center in a public debate.

CHAIRMAN KASS: Give me another sentence? I mean, just elaborate how you'd want to formulate?

PROF. GEORGE: Well, if it's true that there is a consensus in the country that sex selection – whatever people's views about abortion are – that sex selection is not a legitimate reason for abortion and ought not to be – abortion ought not to be permitted for purposes of sex selection, then at least the public opinion basis for public policy in the area, and what that would be, whether at the national level or at the state level, and exactly how such laws could be drafted and whether they could be enforced and so forth would all have to be discussed, but in any event, the public opinion basis for legislation in the area would seem to be there.

CHAIRMAN KASS: Does anyone, Rebecca, do you know is there law on this?

PROF. DRESSER: I know that at least Pennsylvania has that in their statute, but that wasn't part of the case that challenged that law because it's not enforced.

The problem, or one problem with these things is that people can go and say, "I just want this pregnancy ended," or, in these other situations, "I want PGD for some other reason."

Now it would be more difficult to come up with something because that's a newer technology, but you don't know what the true reason is, so it's an enforcement problem.

In the context of diagnosis, I mean, there have been discussions of prohibiting physicians and genetic counselors from telling the sex, and that would be a place where you could try to enforce it and just not pass on the information, but people have said that's pretty difficult and have had a lot of objections to that.

PROF. GEORGE: Could the medical people say at what stage in gestation it's possible to give a pretty clear answer as to whether you've got a boy or a girl?

CHAIRMAN KASS: Sixteen to eighteen weeks, right?

DR. ROWLEY: It's got to be very much earlier than that.

DR. FOSTER: I think it's much earlier than that, about 16 to 18 days after –

CHAIRMAN KASS: When the tests are done?

DR. ROWLEY: Well, yes, but you can get fetal cells and do FSH analysis with X and Y probes until – I mean, they're doing chorionic villus at, what, 12 weeks or earlier, so that it's –

DR. FOSTER: Yes, I misinterpreted the question. We know phenotypically about the 16th or 18th day what's going to happen. You remember that if the gonads are removed, that the phenotypic development is female.

So what makes a male is when the testes develops and injects testosterone, and then there is the Mullerian ducts in the female apparatus then is atrophied, and the male duct system goes on, the testes have to move down to the inguinal region, all that sort of stuff.

But remember that what you get if you have no gonads is a phenotypic female with a short, blind-ending vagina. There's no reproductive capacity there. If it's an XY, you know, if you know that it genetically, as Janet was saying, is a male, it's an XY, we know that, let's say, from a biopsy or whatever, but if you remove the testes, then both the male and the female develop in the same way phenotypically, and that's known, if I'm not mistaken, at about the – I think the testes kicks in about 16 to 18 days, something like that.

So what you get, it's a good argument for that the universe really wanted only women, but then it got frustrated from there. So you know the genetics immediately, whether it's an XX or an XY if you tested for it, but you don't know phenotypically, even if you're an XY, something can happen, and that may be because you don't make any testosterone or the testosterone doesn't work.

The classic example is what's called testicular feminization, that you go ahead and get the testes, but the receptor for the testosterone is totally resistant to the action, and so what you get is generally voluptuous females, they have heavy breast development and they have short, blind-ending vaginas.

They characteristically, in the full-blown state, have no sexual hair at all. There's no axillary hair or pubic hair and so forth. It's a very, you know, the wife of the Shah of Iran was a testicular feminization.

Kim Novak was a well-known testicular feminization. Males who appear – we had the head of a convent who, it was discovered, was XY and it was a huge problem for her to have to deal with, she says, you know, I mean I'm a woman, but I mean, genetically I'm a man.

So that's the way the problem works.

PROF. GEORGE: What I was wondering is is the procedure that Janet described routine, and how invasive would it be? My understanding is that sonography is now routine and it's minimally invasive, but I take it that you can determine sex by sonography only much later than by the technique that Janet described.

DR. ROWLEY: That's my impression.

CHAIRMAN KASS: Bill Hurlbut.

DR. HURLBUT: What you're asking is when can you see it on a sonogram. There are more invasive methods like amniocentesis and chorionic villus sampling, where you have to look at the cells, but you're saying when's it real easy to see, cheap and quick.

Well, with a sonogram there's a time at which you just can't resolve close enough, and I think that a figure for when you can detect sex is around 12 weeks.

DR. ROWLEY: On sonography?

DR. HURLBUT: On sonography. It's later than that?

PROF. GEORGE: Well, the reason I think it would be good to know is that if we can agree that sex selection, whatever people think about abortion generally, that sex selection abortion late in term is not ethical and ought not to be – well, at least ought to be discouraged at a minimum, it seems to me that then you might be able to think about public policies that would, minimally at least, discourage that ground for feticide.

DR. ROWLEY: Well, let me just follow up on this. It seems to me that for couples who intend to have only, say, male children, they certainly would use one of the more invasive techniques that can determine this very much earlier, and there's talk of trying to get fetal cells from the uterus much earlier where you then could determine this.

There are also techniques that are being used by some clinics looking at the shedding of fetal cells in the maternal circulation, and looking for XY cells just in the blood of the mother.

There are certain problems with that, and to my understanding – this is an area I'm pretty much not well-informed on, but there are – if a mother has been pregnant before with a male child, there can be residual cells from that male child still circulating some time after the child has been delivered, so that can be a confounding factor.

At least that's my impression, but the most reliable way would be to actually go in and do some kind of a biopsy and as Dr. Opitz, who I guess isn't here, could probably give us a far more informed statement than I'm going to make.

As he indicated, some cells in the placenta are of fetal origin, so that you would be able to, with biopsies properly done, to get fetal tissue without actually doing anything deleterious to the fetus.

CHAIRMAN KASS: Rebecca, please.

PROF. DRESSER: This is not on this direct point. Is that all right?

CHAIRMAN KASS: Please.

PROF. DRESSER: Okay. I think this paper is definitely something to work with. I had two broad points I guess. I would like to see something in here which, in fact, ties into the previous discussion on enhancement, whatever it is, which is talking about this as a practice of medicine and whether it fits professional integrity ideas about this, what's appropriate for medicine to do.

I think if we want to say anything about public policy, professional standards and what insurance should cover and all those kinds of things would be tied into that theme, and that also might be something that some people would find more persuasive than some other things.

So I would like to see more of that. The other thing is I do not like it that people want to do this, but at the end of the day, as I finish reading this paper, and I don't know that this will ever exist, but say there were a completely safe system of sperm sorting, and reasonably accurate, so that we would say, if the FDA were regulating it, if it's effective enough, and people wanted it for non-discriminatory reasons.

Now we could talk about what qualifies there, but you know, they have a girl and now they want a boy, whatever. It's hard for me to say those parents are immoral in what they want to do.

It's easier for me to say it's wrong for physicians to offer it or physicians to use their skills and talents and the resources that they have and what we've invested in their training and so forth to perform this, but I still find it difficult to say, you know, I can say I don't think it's ethical, I don't approve of it, I don't like it, I wish you didn't want to do it.

I think it's misguided, but to say it's immoral, I'd like to hear some views on that.

CHAIRMAN KASS: Actually, could I try you on the other half? Maybe it would help us if you could say why you don't think they should do it or why they're misguided. That might be sufficient unto the day.

PROF. DRESSER: Yes. Well, I find it – I think that most people when they say they want a boy or a girl, and let's say outside of a certain cultural tradition or religious belief, they're saying that because they think, well, there's a certain relationship I want to have with my child, or certain hopes, aspirations I have for my child, and I'll only be able to have those if it's this particular sex.

I think that's sad. I think it's confining for the child. I think it's confining for the parent. I think it would not necessarily promote a good relationship, and I guess that's this common sense, my basic problem with it.

CHAIRMAN KASS: Would someone join Rebecca before we move away and let's just pursue this question. Alfonso, please?

DR. GÓMEZ-LOBO: Yes, on the moral point, of course any moral judgment needs a broader story, a broader context I think. So let me provide a little bit of it.

On the one hand, there's this consideration that was brought forth by Frank, that a singular act or an act of a particular person may have ramifications for the community, for the whole, and that's very worrisome in this case.

So that would be a consideration that we should in our choices consider how we're going to affect the common good when we choose. Now, when we come to the particular level, the level of the personal choices, I don't think we can do away totally in this case with the prejudice against women.

I think that it's fairly clear that in those places where sex control is practiced, it's clearly anti-feminist biased. Now, but the broader context I think is this.

I think one can argue that not all desires ought to be fulfilled. In other words, we have desires for things good, and they're legitimate, and sometimes we have desires for things that are bad, and those are the ones that if we heed to, we would consider the act immoral.

My basic intuition here, for whatever it's worth, is that there's nothing wrong with having a family, as I do, with more daughters than sons, for instance.

There's no human good imperiled by having more children of one sex or the of the other sex. The human good of the family does not depend on that, so I'm inclined to say that any motivation to make this choice, whether by immoral means such as abortion, or by perhaps permissible means like sperm selection – sorting, sperm sorting.

Still, there is something about a human desire to aim at a good, which really is apparent, because a family with girls will be fine. Now, there is the cultural problem, of course, namely those societies which are strongly biased against girls.

But of course, as a moral philosopher I would have to say, well, so much worse for the culture. I mean, there has to be something of a – hopefully a realization that there's something deeply wrong in what they're doing, particularly if they end up having these skewed ratios.

There surely has to be some reflection about the morality of the actions that lead them to this quandary.

CHAIRMAN KASS: Could I just ask Alfonso a question? The social argument and the sexist argument are clear, but I thought the other argument was incomplete.

If you said there's nothing wrong with having a family that's mixed, the question is would there be something wrong with determining to have a family, assuming for the moment that, let's say, one chose to have a family of all girls, and that it didn't contribute to some – in other words, the fact that this is not necessary to achieve a human good doesn't necessarily mean that the attempt to use it is worse than neutral, let met say.

So, do you think this is worse than neutral?

DR. GÓMEZ-LOBO: I see the problem. As I was explaining it, I suddenly saw the objection in my mind. I think – Let me think about it for a day or two, because I think there must be a problem with that.

Otherwise, well, I would have to fall back on the impact on the social good, and say, well, maybe it is legitimate for me personally to do this, but on balance, you see, the community may suffer if there is generalized sex selection at will.

PROF. SANDEL: But falling back on the social good isn't going to help you in this case, because in the United States so far, both in the use of this micro sort sperm sorting and in surveys, people actually go more for girls than for boys.

So that won't necessarily give you grounds for opposing this if you want to oppose it. You're going to need an affirmative moral argument.

CHAIRMAN KASS: And by the way, for what it's worth, the working paper has a couple such arguments. I mean, in sections three and four, which perhaps they might – maybe they didn't strike you as –

DR. GÓMEZ-LOBO: May I make a different sort of cultural remark. There is this footnote on page 22 which I found interesting, which talks about the advantage that can arise for women from the skewed ratio.

I've heard that it's already happening in India, that they're switching from dowries to bride money. Namely that now, instead of the family of the bride having to pay the groom, families of boys go out there and pay families.

Culturally, this is just a particular thing of mine, it's interesting because in the ancient Mediterranean in the second millennium B.C. in archaic pre-history there's a switch from bride money to dowries, and it's unaccounted for.

There isn't an adequate explanation, and maybe this provides a clue.

CHAIRMAN KASS: Small thing on this?

DR. HURLBUT: Yes, it's important to recognize that that isn't necessarily a salutary transition, because it has been noted that when women are scarce they become chattel, a kind of chattel, and – well, you get it.

Just one little comment to this too. It would be natural if it's a balancing act, if you were trying to balance your family to have a higher skewing of choice for girls, because there's a natural higher birth rate among males.

Do you see what I mean? 105 to 100, I don't think it's quite that high, but that's – yes, in the paper it says 105, but I think that's –

CHAIRMAN KASS: Up to 105 I think is regarded as within –

DR. HURLBUT: But you get my point?

CHAIRMAN KASS: I think we're going to have a small bit of piggybacking here. There are two people waiting here, but Frank this is something on this last comment? Please, small.

PROF. FUKUYAMA: Well, I just think all the evidence shows that actually a sex ratio skewed against women is good for women, and it promotes actually a lot of social values that people like when you put women in the driver's seat in marriage markets.

CHAIRMAN KASS: Like large gangs of unmarried youth?

PROF. FUKUYAMA: No, that's not, but in terms of stability of family life and a lot of other things.

CHAIRMAN KASS: I have Janet and then Gil.

DR. ROWLEY: Well, I sort of echo Rebecca's sense of caution here, because I think similar to the discussions that we had earlier about your paper, that it very much has to be looked at in the context of the particular situation, and I can see why a family where, say, there are already two children of one sex might strongly consider trying to increase the likelihood of having a child of the opposite sex, so that you really get mixing within the family of boys and girls, and they learn to grow up together.

So I think that, as I say, we do have to look at the context.

CHAIRMAN KASS: Janet let me ask you this. I mean, it's also conceivable to me that some family with, let's say, three boys or four thought for its own good or bad reasons that if you had five you would have a basketball team, and that the choice might not be for its own personal reasons for one of the opposite, but for another like.

The question is are we in a position, if we sort of relativize this to people's circumstances, to sit in judgment and say balancing, that's okay. More of the same, that's suspect.

Or do you want to say, well, look, who are we to judge the parents and their own circumstances. They probably have their own good reasons for liking what they like.

Are we going to be able to – or is each case absolutely going to be different and there are no – going to be general principles? I mean –

DR. ROWLEY: Well, I'm the mother of four boys and I have to say that the lack of a daughter hasn't been a great tragedy for me because my sons are marvelous, but at the same time, I certainly would have liked to have had a girl.

I think this is an area we should leave alone.

CHAIRMAN KASS: Leave alone meaning leave it unregulated.

DR. ROWLEY: Leave it unregulated.

CHAIRMAN KASS: Gil.

PROF. MEILAENDER: Brother of five sisters.

(Laughter.)

PROF. MEILAENDER: It can be tough at times. I want to come back to Rebecca's point also, because I think she has articulated a kind of concern that many people have here, and I want to make just a very simple point with respect to it, and that is that whatever we think the complex relation between law and morality is, it may be useful when we're thinking about these matters to keep them a little separate and to start by thinking about morality.

In other words, I wonder, Rebecca, and I certainly don't wish to put words into your mouth, or thoughts into your mind, but the kinds of hesitations that you expressed I think we feel most strongly if what we're thinking we mean when we say, "It's wrong," is – and maybe we should publicly prohibit you from doing it, or something like that.

We get very cautious at that point. If you think of a good friend talking to you and asking you, `Do you think I should do this?' it has a different flavor.

Now even there, I might distinguish between saying to a friend, `Oh, I don't know if I think that's wise,' and saying, `I think it's wrong,' but there certainly are many occasions, and this might well be one of them, in which I could conceive of myself saying to a friend, `No, I think it would be wrong of you to do that,' without necessarily making a judgment about what I'd want to say if somebody wanted to transpose that into law.

So it just seems to me that it may be useful for us if we want to make any progress to think first of all about just what do we think about this as a moral practice without thinking that that rushes any conclusion about what a policy might be.

I mean, I like the fact that the policy section was blank there, and the kind of what I take to be the principle argument, well the negative externality argument's one, but the other principle argument put forward, which has to do with the issue of control, and the way that has an effect on the relation between parents and children may be best thought about first as a moral argument, whatever one does or does not then conclude about possible policy options.

CHAIRMAN KASS: Having the floor and having, I think, wisely encouraged us, and by the way I second this completely. There's talk about prohibition, and getting in the way of this is not on the docket here, but having sort of steered us in this direction, would you offer a moral judgment on this, either responding to Rebecca or to Alfonso and to see if we can move the ball forward.

PROF. MEILAENDER: You want me to say something stronger than just, "It's not wise." You want me to offer a –

CHAIRMAN KASS: Or just –

PROF. MEILAENDER: Well, I'd be happy to, and I think, in fact, that one of the interesting things about – there are several interesting things about the argument presented in the draft.

One is that it takes seriously the importance of sexuality, over against those discussions of it being a non-essential characteristic and so forth.

The other is that what I take the argument developed most fully in it, actually brings us back to some things that we talked about and, in fact, wrote about in the cloning document, namely the sense in which too strong an attempt to control the characteristics of the next generation distorts the relation between those two generations; sort of undercuts some of the chief parental virtues and I think that that's morally very problematic, and I can conceive of myself in many circumstances being willing to use the "wrong" word.

CHAIRMAN KASS: What if one were to say, Gil, granted that sexuality is an important aspect of one's identity. I'm not sure it's the most important, but it's certainly an element.

But after all, they're really basically, leaving aside some minor variations, you're either X or Y, and it's not quite like entering into the control of all kinds of other things.

What's the big deal really in terms of the kind of control? I mean, it is an element of control, I grant that, but couldn't one say that simply sort of controlling something that's going to be there anyhow one way or the other, it's not all that decisive.

I mean, what would you say?

PROF. MEILAENDER: You don't think it matters that you're male rather than female to the you that you are?

CHAIRMAN KASS: No, I think it does. Sure.

PROF. MEILAENDER: I mean, every cell of your body is marked by that. It's impossible to conceive of your being the person you are were it not for that, so I guess I don't – I mean, unless I'm missing something, I don't understand why you would suggest that it's a trivial matter.

I mean, all the other sorts of things that people have the ability to get worried about. You're going to have an IQ too, you know, and some people think it would be nice to have it be 140 rather than 120.

So I guess I don't see the nature of the argument. Yes, presumably you're going to have a sex, but that doesn't make it an unimportant matter. It still may be something that marks and constitutes the person that you are.

CHAIRMAN KASS: Let me think about it some more. Robby? Bill May?

DR. MAY: I think the word that you used, Rebecca, earlier was "immoral." Hardly, however hard Gil would argue, would not seem to be immoral in the way that pedophilia would be viewed as immoral, and so forth.

I, unfortunately, picked this up very late, and so I have only skimmed it, and maybe it does deal with this problem, but an interesting issue if it can be done for this reason, to what degree it presents interesting problems, not simply in one's understanding of parenting, but the relationship of the man and woman to one another as one.

As things stand now, you tend to – we've decided to have a child, and a kind of openness to the unelected element in that, and if it can be subjected to control, that control spills over in a problem not simply in the relationship with the parent to the child, but maybe some elements of forcing in the relationship of the mates to one another, not that the dominant mate would necessarily win out.

But it does create an interesting problem in the conjugal relationship that is not quite there in a setting where this is not viewed as an acceptable reason for eliminating of the gender, the sex, you don't want.

PROF. GEORGE: Yes, I certainly think that is a very good point, and something really to be considered. I'd like to make two separate points. The first is the subject matter of public policy isn't always prohibition or permission.

Often it has to do with other matters. For example, quite apart from the question of whether any particular technology for sex control is to be prohibited or permitted, there's the question of whether insurance coverage for it will have to be provided by employers, whether employers who are morally opposed to it would have an exemption from any mandatory coverage.

Recent history suggests in a lot of cases where you have a controversial question, an argument for permitting the practice might begin as an argument for liberty, saying well we have disagreements in this culture about the controversial practice in question.

Let's just leave it up to individuals and not impose any societal judgment. Then, a few years go along, and what was considered an evil that has to be tolerated seems to be transformed culturally into something that's accepted as a good, and something, then, that has to be paid for with public funds, and perhaps imposed on dissenters who, as a matter of moral judgment, don't wish to pay for it or pay for insurance coverage for it, but who are now considered to be behaving wrongfully in resisting, implicating themselves in the practice.

So I don't think we can escape, even if we lay aside the question of prohibition, I don't think that we can escape public policy questions on an issue like this.

Public policy questions which will have to be grounded, ineluctably I would say, in a moral judgment one way or another. Then the second point is this.

It seems to me the heart of the argument here is the control argument as it's put forth in the paper, sketched at least in the paper, page 25, section D, the point about sex control challenging the fundamental understanding of procreation and parenthood.

I think that's right. Leon, in his devil's advocate role, raises the question about, well what's the big deal about this element. I think the use of the term "element" there is instructive.

Looked at simply in abstraction from the rest of what's going on in procreation and child-bearing as it's practiced in the culture, looked at in abstraction, yes, it doesn't seem like such a big deal, but as an element of a larger pattern, really a movement of procreation in the direction of being treated as a kind of manufacture, the child being the product at the end of the manufacturing process, I think it's a ground for a very serious concern.

Here again, to harken back to a point that I made in an earlier discussion, here I think we have an example of something that simply cannot, at the end of the day, be left to individual choice, because the character of that fundamental understanding of procreation and parenthood that's going to affect everybody in the culture, the character of that is going to be shaped by a lot of individual decisions adding up to a large cultural understanding which then in turn affects the decisions that people make, and even the options that they have as they're constrained by informal matters and by formal constraints such as law and public policy.

Now, what that understanding is going to be, then, really is a social decision. It doesn't mean that public policy is the only way to address that cultural understanding, and to try to shape and affect it for what one considers to be good, but it does mean that we can't simply satisfy ourselves to think that, well, look, this is a matter of individual decision and people can simply be left alone to make decisions as they like.

There will be social consequences of it, not simply in a kind of concrete, material sense, but perhaps even more importantly social consequences affecting the large cultural understanding of what procreation is and whether there's, in fact, a difference between conceiving of a child as a gift and conceiving of a child as a product.

It could be that the capacity of future generations to grasp, to understand children as gifts and not products will be profoundly affected by decisions that we make today and in the next few years about what the shape of that cultural understanding is going to be.

CHAIRMAN KASS: Someone want to respond to Robby? I mean, Paul is waiting, but do you want to join this in particular?

DR. MCHUGH: My comments are a little bit along that line. On the other hand, I have a lot of sympathy with what Janet has said. Let me put it this way.

I was – my major concerns at first were exactly along Robby's lines. That is, we're going to affect – children do not just belong to us, they belong to the world, they eventually become part of the world.

Not only that, even in the family, before they are outside of the family they affect the community, and I know that and I've spoken to you before about it, about how recruiting people to my department, I've discovered I was recruiting families and the families' children interacted in the community in most wonderful ways, athletically, academically, and the like.

So, it is really important, and we could change our whole view, perhaps, of the world if this technology became so dominant. However, my other concerns and objections to this related to cultures that were prejudiced against one or the other sex, and that they expressed this both in relationship to feticide, but also in infanticide.

We're seeing that right now in China. They are fundamentally killing girls left and right, and our friends go there and rescue these little girls out of the mouth of the dragon, really, and they come here, and that's wonderful.

On the other hand, if we are in a culture in which we appreciate women and men equally, recognizing their wonderful diversities and similarities, if we say killing is a behavior that we won't produce no matter what, in any form we won't kill anybody to do this, then it seems to me that the argument that Janet produces is very powerful, that if you have a way of doing this without killing anybody, but by able to selection through cellular biological work, that this becomes a gift itself of our advancing science.

Janet says she's had four boys. Well, in my family we had a girl and we had five guys, one after another, one set of wonderful males. Then finally a girl came just a year ago, and boy was there a celebration. Man, we loved it. It was a little girly.

It strikes me, well, supposing without killing anybody and without saying that the boys are better than the girls or the girls are better than the boys, I haven't made my mind up, but that's the default position that a kind of a doctor response to, I suppose, and kind of thinks about, and I'd like to be argued out of it, but that's what –

CHAIRMAN KASS: Let me try. This isn't an argument, but a test of an intuition on this matter. Would you like to be responsible for the maleness of your son? Right now you're responsible for having said, along with your spouse, yes to his existence.

Do you want to be held responsible for whether or not he, in fact, likes to be a boy and for the particular relations that you now enter into with him on that basis?

DR. MCHUGH: Well, that would certainly be problematic for me if I had no offspring. If I were saying I'm going to manufacture a boy and be responsible for that.

But if my wife had given me several boys, and begged me that we could have a girl, it's hard to say no to her. She's powerful anyway. She has this great influence on me. I'd say no to her never.

But at any rate, not just at that, you know, Leon.

CHAIRMAN KASS: Do both of you want to be responsible for the possibility that the daughter is unhappy to be one daughter amongst a houseful of men?

DR. MCHUGH: Oh, I think I could handle that. That would not be – I think she could be happy or unhappy in all kinds of circumstances. I could manage that. You know, I'm the dad, I can handle that one.

CHAIRMAN KASS: You did this to me, Pop. I could have been a boy like my brothers.

DR. MCHUGH: I could've been a contender. Yes, well, as I say, I think I could handle that, and I think that would be something I'd be happy to talk with her about.

I would be happy to talk with her about what a treasure she is. Now, since I don't think if it were done at that level, the kind of level that Janet and I are talking about, I don't think it would be a big thing in our world.

It would be small. I doubt that it would have huge influences on ratios and the like. Okay? So if there's no killing going on, and if we're in a community where we appreciate women and men alike, and we understand that we are contributing to the future as members of the community, then the cellular biological enterprise doesn't sound so bad.

CHAIRMAN KASS: Michael Sandel. Thank you for your patience, Michael.

PROF. SANDEL: First, I'd like to comment on one feature of this paper that we haven't discussed, which is the attempt to shift the term for this practice from sex selection, which is the common, familiar term, to sex control.

I think that's a mistake. It's a mistake, it seems to me, because it's a transparent attempt to make it seem to the American public less attractive. The American public, we know, is in favor of selection and choice and it's against control.

Control sounds bad, it sounds tyrannical, it sounds authoritarian, and I think this is a transparent attempt to just rejigger the term in order to bias the discussion. I don't think we should do that.

Having said that, I think that sex selection is morally objectionable and should probably be banned. So here I'm going to try to bring out the libertarian instincts of Gil, who will rise up to say why it shouldn't be.

But I agree with Robby, and I don't think that we can get to the real heart of this question by talking about sex ratios, because it may well be that the sex ratios would turn out just fine in the United States with a regime of sperm sorting.

I don't think we can get to the heart of the issue by worrying about prejudice or discrimination, because prejudice and discrimination are simply a matter of preferring one over another without a good reason.

If we're against prejudice at the level of society and a culture and its prejudice, then why shouldn't we also be worried about prejudice at the individual level?

If it's preferring one over another without a good reason, then it's objectionable. Well, then there's no good reason to support it, but there is a reason, and I think it has to be – the moral account has to be given, but it goes back to the distinction between a gift and a product regarding a child.

It goes back to the discussions we've had about trying to characterize, when we've been talking about enhancement in general, the issue of mastery versus gift.

I think there is no case – this, in a way, is the best case, and may be the most fateful insofar as we're worried about the attitude of mastery. It's the best and most fateful case precisely because it needn't involve killing embryos, so that issue is put to one side, and it needn't involve various externalities that can trigger utilitarian worries of the kind that Frank raises, assuming that the sex ratio problem isn't a problem for the United States, which it might well not be.

So, it's a perfect issue to get at the question, how seriously do we worry about allowing a new practice that would have as its point and as its purpose turning child-bearing and procreation essentially into product selection.

Not for the good of the child, it's nothing to do with health. The prejudice or the discrimination for healthy over unhealthy children is a perfectly worthy prejudice or discrimination.

But the health of the child is not involved here at all, and so it really presents the issue we've been wrestling with in the enhancement discussions in its pure form, and it seems to me if we want to – insofar as we're bothered by a practice that will transform our understanding of children and child-bearing from gift to product, or into objects of our will, here is one.

The closest example, comparable case, would be allowing a market, not in organs, but in children. What would be wrong with buying and selling children, provided we didn't allow abuse, we didn't allow enslavement, all of those things, but simply allowing a market in the purchase and sale of children for the same reason.

Not because we're afraid that the market would place a higher price on boys reflecting cultural prejudices. That wouldn't be the fundamental reason. The fundamental reason is that it would transform the understanding and the practice of having children and raising children in ways that would, in line with a lot of tendencies already powerful in our culture, transform further in the direction of producing a product or an object of our will.

So on those grounds, since there is no compelling reason on the other side. There's no compelling reason of health or of any other kind to allow this kind of technology.

It seems to me it's both morally objectionable, and there are good grounds to ban it, but we should ban it by calling it what it is commonly understood to be, sex selection.

In fact, it's important if we're going to ban it to call it selection and not control so that it's clear that it's for that reason that we're standing up precisely to the consumerist aspect of this, rather than saying, "Oh no, this is a kind of social authoritarian control."

CHAIRMAN KASS: Response to Michael's – a man who's grabbed the bull by the horns and we can now see where we are.

DR. MCHUGH: Can I get in there, because that is a wonderful and powerful, but there is – I just want to come back, there is a reason for this alternative, Michael.

It wouldn't be done trivially. As I say, I'm working this out myself. You say this is an example, an expression of our manufacture, of our control, our enhancement of our family life.

But isn't that a worthy thing? Shouldn't that weigh a little bit on the scales, that a family that has three or four girls might have a boy or three or four boys might have a girl, and that the – you're just really speaking really to the emotional attitudes of the parents themselves that's so uncalculating at one level.

They just have a feeling, oh, if only, and I've been in lots of delivery rooms when disappointment was registered at the fact that this is the fifth boy, and I don't know, but you say there's nothing there.

I mean, there is something there. That's all I'm saying.

PROF. SANDEL: But there's a preference there. I agree there's a preference, but is it a preference to which we should attribute some moral weight, do you think, Paul?

DR. MCHUGH: Well, I'm certainly giving it emotional weight, and since I spend most of my time telling people their feelings have too much salience in everything they're doing, I'm arguing against myself today.

Don't let my patients know that I've said this. Block it off.

CHAIRMAN KASS: It's on the Internet.

DR. MCHUGH: It's on the Internet, I know, but I'm just saying that what I'm trying to feel my way along is this idea that there's a deep, heartfelt sense in both parents that they would love to have both boys and girls in their life this way, and that if they could have it, they pray for it, they hope for it.

Having a boy and a girl is called the King's Blessing. So –

PROF. SANDEL: But then why do you shrink, Paul, from the case from the preferences that people have as a result of what you call social and cultural prejudice? Why not give way to their preferences too? They have a heartfelt desire.

DR. MCHUGH: Well, I think that those social preferences, those heartfelt desires are aspects of a culture that needs improvement.

CHAIRMAN KASS: Careful.

DR. MCHUGH: Yes, I know it's dangerous, but I –

PROF. SANDEL: What I'm suggesting is that our culture needs improvement, too, our consumer culture.

DR. MCHUGH: Yes, yes, I hear you, sir.

CHAIRMAN KASS: Robby.

PROF. GEORGE: Paul, I think you get to where you're getting precisely by abstraction, by taking this one element out of a larger picture and abstracted from that larger picture it looks relatively trivial, but you have to see it in context.

This kind of social analysis requires that each element of a larger picture be analyzed in relation to the other elements. I think we should ask ourselves why the killing?

Why would anybody destroy a perfectly healthy female fetus? Apparently a not insignificant number of people are prepared to do that. Why would they kill a perfectly healthy female infant?

Some people are apparently prepared to do that. I think that manifests, it reflects, it's a consequence of our failure to maintain a cultural structure, a public understanding of the child as a gift, precisely as a gift.

What happens when you start to treat something as a product, whatever it is? You apply quality controls. When the products don't measure up, the controls have to be put into place.

You throw out what didn't measure up and you make new ones that are better. So I think we're already pretty far down the line here. I mean, the cultural understanding has already been eroded to the point where these things can happen.

I'm not quite sure how we correct it or rectify it, but I certainly think that we have to see it in context as contributing to an attitude that we really should be trying to overcome.

CHAIRMAN KASS: Paul did stipulate for the record that he wanted – he was willing to countenance this only if there was no killing; that this was just the micro sort technique. But you want to say that that's of a piece with these other things?

PROF. GEORGE: Yes, let me say this very carefully, because I realize that Paul proposed no killing prenatally, post-natally, no killing of any sort.

CHAIRMAN KASS: I want to make sure we clarify this.

PROF. GEORGE: No, my problem is not to focus on the particular case, whether it's killing or just sex selection that doesn't involve killing. But to look at the role of sex selection as an element in a general attitude which licenses the designing of children, that sex selection is just one part.

If we look at that attitude, why would we think that attitude is a bad thing? What are the consequences of that attitude? Now let's shift the focus back a little bit and look at something that we know is going on already, and is responsible for some imbalance already, and that is killing in the cause of sex selection.

Now how can that be? Babies are cute, and ordinarily, a healthy baby, we can't say we're doing an intervention of any kind for the baby in this case, because the baby's perfectly healthy.

How can it be happening? Well, it's because, I think, people are already tending to see procreation as the manufacture of a product, and if I don't get what I bargained for, if I'm getting a boy when I wanted a girl, a girl when I wanted a boy, then it's okay to apply the quality controls, shut that one down and redo the process and get what I want.

DR. MCHUGH: These are very powerful arguments, and I'm digesting them, and I appreciate just exactly what you're saying, that this kind of commodification and manufacture can be a problem.

On the other hand, I think Janet and I together, Janet help me out, are just saying, gee, leave it alone for awhile. See whether in fact it does have the corrupting influence that we have, or whether that we can anticipate, which, I hear your arguments very strongly, Robby, on how it could lead us into all these other things.

On the other hand, it's new, a new world, it's new opportunities. Leaving it alone might give us a better picture, just like maybe we got a better picture with IVF or something of that sort.

I'm – Listen I'm on thin ice out here fellows.

PROF. GEORGE: If I could continue –

CHAIRMAN KASS: The trouble is when you get on thin ice, you like to stay there. We've got to be very careful.

DR. ROWLEY: Let me just make a few comments here, and I think that we do have to recognize that we are discussing things in the context of the practice in the United States, and I think that it's true that as we watch certain practices elsewhere, one worries whether they might become more common here.

I think we do have different cultural values. We aren't an agrarian society dependent on sons to till the fields and so that some of those pressures that lead to sex selection elsewhere are not really so – are not pressing here.

I think we also have to have a certain humility ourselves on what our role either on the Council is or trying to set rules and regulations that can affect individuals in ways that we may not foresee.

So we're not God, and I think that we have to, as I say, have a certain sense of humility about what our role is. That's, I guess, part of my reason for saying that I'm not sure that this is of sufficient public urgency now that we need to make a judgment, and I agree with Paul, obviously, in the sense that to tell a family that they cannot make a choice if it were available for them to make the choice, and again, I agree with Paul, that it's certainly preferable to do this with no killing involved.

For us to say to a family you cannot do it because you are engaged in immoral behavior, I think is very dangerous ground for us to be on, and I commented at lunch time to John Opitz that I thought that his slide from "Non Sequitur" was really quite inspired.

One sign, "The facts as they are, the truth as I see it," and I think that a lot of what we're discussing now is the truth as I see it, and I think I'm reluctant to move ahead with that as the basis.

CHAIRMAN KASS: Gil.

PROF. MEILAENDER: This is just a small question, Michael, with respect to what you were willing to ban, and I mean, you understand that I, of course, am quite sympathetic to the moral argument you put forward, but I just found myself thinking about the kind of case that someone will raise, and let's suppose we're just talking about sperm sorting techniques to accomplish this, and you said it's morally objectionable and I'd be prepared to ban it.

Somebody's going to say to you, what about people who want to do this because the mother carries an X-linked recessive disorder, and they want to avoid having a son who has it.

Now somebody's going to ask you that question, which, you know, what are you going to say? Are you going to say, no, if we ban it, we ban it, or are you going to say, I'm going to begin to distinguish between circumstances in which I guarantee myself that they are doing this for the morally objectionable reasons, which I don't disagree with you about.

How are you going to deal with that sort of question?

PROF. SANDEL: I think I would try to make those distinctions. Where it's for a matter of health I would permit it.

PROF. GEORGE: I would say that a scheme that did permit it in those kinds of circumstances where health was the concern would substantially alleviate concerns I have about the impact on the public culture and public understanding of procreation.

So it seems to me if that's what our fundamental concern is, then it wouldn't necessarily have to be an absolute ban. The ban would be on sex selection as a simple matter of preference.

DR. ROWLEY: And are you going to make this a criminal offense?

PROF. GEORGE: Do you think that baby-selling should be a criminal offense?

DR. ROWLEY: That's a totally different issue. You know, we went through this in the cloning of the slippery slope. Unfortunately, it was Jim Wilson who said, you know, that's not an appropriate argument.

So that's a totally different problem, and I think shouldn't cloud the issue.

PROF. GEORGE: No, it's not a different problem. It's not a question of the slippery slope, it's a question of the principle. Do we have a principle that children are not commodities that can be treated as products?

That's where the similarity is.

DR. ROWLEY: Well, I, you see, I don't think that that's so. I think that to give parents a choice of the sex of their children is not to turn that child into a commodity.

PROF. GEORGE: Okay, we have a disagreement about that particular point, but –

DR. ROWLEY: So this is the "I think, and the facts are."

PROF. GEORGE: Well, but let's stay with baby-selling for a moment. We can certainly imagine, Judge Posner has argued in the Wall Street Journal in defense of a scheme of baby-selling.

We can certainly imagine circumstances in which an individual couple who wanted a baby of a particular description and could not obtain that baby by adoption except by purchasing that baby, perhaps a purchase in a foreign country of that baby, could bring that baby to the United States and raise that baby in circumstances that are far superior to what that baby might be experiencing in his home country.

So the situation for the baby is much improved, and the parents get what they want. Now I would argue that there's still a moral reason, although neither the parent nor the child is harmed in that case, there's still a moral reason having to do with the impact on the public culture of baby-selling for prohibiting the baby-selling.

DR. ROWLEY: Now how do you distinguish that from individuals who go to China or to the Ukraine and elsewhere to adopt children?

PROF. GEORGE: In the one case, children are being purchased. In the other case, they're not.

DR. ROWLEY: And you're so sure that there is no money when children are being adopted from China?

PROF. GEORGE: You're asking me whether I'm sure of the question of empirical fact of whether money's changing hands?

DR. ROWLEY: Yes.

PROF. GEORGE: I don't know, but if money is changing hands, then I think that an immoral transaction has taken place. I wonder if you agree with me.

DR. ROWLEY: I don't think it's that simple. I think that for individuals whom I know, and I have no idea whether they paid or not, though maybe as I think about it more, I'd be surprised if orphanages were just giving children away without some kind of remuneration.

But I have no idea about this, but if parents cannot have children, and there are children elsewhere whom nobody wants, and most often in China they are girls that are being offered for adoption, I guess I have a hard time seeing that parents should not be able to offer a child a good home and a good life, that that's morally objectionable.

PROF. GEORGE: Well, the question is not whether it's objectionable to offer a child a good life; the question is whether it's objectionable to buy the child.

DR. ROWLEY: And I'm saying I just wonder whether, in fact, this practice which certainly some individuals are applauding because it has unwanted children now with good homes, whether – I'm asking the question. Whether money changes hands or not.

I guess I'm not – I hear – I guess I'm willing to say that the ends of parents who want a child and a child who has no home, getting them together, if some part of that involves the exchange of money, I guess I'm willing to say that the ends justify the means.

PROF. GEORGE: Well, that was my only point, that these two cases are on a parallel.

DR. ROWLEY: Well –

PROF. GEORGE: I think that should be your position if you have the position you have in the other case.

DR. FOSTER: I really had no intent to say anything this afternoon, but let me – since there's a lot of discussion going around, and I don't want to get into this discussion.

I think that there are situations where there could be exchange of funds for a child that were no direct payments for the child. I mean, for example the number one adoption agency in Dallas, Texas, there is a payment to keep them going.

Let's suppose there was an orphanage in Russia or something that you didn't pay a family, but because they're protecting things. I think to make I solely that dollars have changed hands is not either moral or immoral, it depends on how it occurred.

My philosophy throughout all of this, I just want to make two points, has always been, I guess, from a person who's a physician, an academic physician, is that I'm very much in favor of things that prevent premature death and help in terms of disease.

I thought that that is the reason that I strongly favored what the Council in general said was a lesser good, that is to use cloning for the obtaining of stem cells, and to study this to find out if we could substitute adult cells or whatever, but not put it into a moratorium where we don't get the answer of anything.

I felt strongly about that, and I do still feel strongly about that, even though I know that there may be problems there. That issue, and all of us, if we had a fair hearing about that, but that's a momentous issue and was a momentous report, however it came out.

I mean, to decide whether you're going to clone to make babies is a momentous issue that forces any council that has an ethical or moral component to act on.

That's the case. Now my own personal view is more in view of what we were talking about at lunch today, that I guess Daniel Callahan calls the sacro-symbiotic approach to life and nature, instead of the power-plasticity model, where that everything you could do that you do.

I personally would be most comfortable with the whole idea of letting nature be nature, and in a sense that's why I'm pretty much against some of the aspects of enhancement that we're talking about.

I mean, I never cared whether I ended up with three boys, but I didn't care about that. I mean, I just think that in general, we ought to be satisfied with those things that are normal and natural and have always been a happy part of life, and then try to change those things that have been negative in life, disease and so forth.

Having said that, I think there could be a perfectly innocent thing to want to have a boy or a girl, and if there is ways that somebody could do that, I'm not sure that I would object to that as a general rule of an ethical problem, but what I can say in my view is that it is a trivial ethical problem at this point, and therefore puts us in danger of the concept of taking on things that are not momentous.

I would say that pharmacologic enhancement things, those are at least quasi-momentous, but the cloning thing was truly momentous, and I think we ought to limit our ethical recommendations to those things which are serious and are on – even if they have potential wrong.

So in this case, I might be, whereas I objected to the moratorium in the first place, because I thought it kept us from answering the question that all of us really wanted to know and where we could've gotten out of any problem of making embryos if it showed that the adult cells and so forth work and so forth.

Here I would be willing to have, as Janet and – I hope I'm not getting your cold, Robby. I'm just kidding. I'd be willing at this point, in fact, I would strongly say that this ought to be an issue of moratorium and keep an eye on things that's going on.

If we began to see sex ratios coming up, then I think we ought to hop into it very fast, if we still exist, to do something about it. But I'm worried about having this constellation of bright people and so forth being labeled in some sense with not taking care of what I think is a more serious problem of commodification of organs, things of that sort.

So my simple point is that I prefer nature as it exists when it's healthy and happy, and see no need to try to make it super-happy, but I am very much in favor, when something goes wrong in nature, that we try to fix that for the larger good.

So I think I want to weigh in by saying that I think there's strong reason, despite the potential moral arguments, and I understand that – I mean, I don't like sex selection, but I'm not saying we ought to ban it at this point.

CHAIRMAN KASS: The hour is late. Let me make one comment in response to Dan's last, and then to the rest, just simply see if I can sniff out where we are with a view to the future on at least this draft.

I would agree, I think, that at least – this doesn't look momentous, I would grant you that. It might be deceptive, however, in not looking momentous, insofar as people like Michael or Robby are right in saying the principle here is established of selection, even if the thing selected seems relatively, not inconsequential, but relatively innocent.

In fact, it is an issue which the Brits are now, in fact, having had a stricture against this are now having a public consultation about it. The American Society of Reproductive Medicine is, I think, reconsidering its position.

The practice is, I think, on the rise. In the poll that the Genetics and Public Policy Center over at Hopkins took very recently, there's a footnote here, one-quarter of American women and one-third of American men said that they would approve of this, of use of PGD to determine the sex of the child.

I don't think, by the way, such a statement is worth very much. I mean, it's one thing to say it to a pollster, and another thing to actually act upon it when you actually have to go to the trouble of doing all of that.

I mean, not everybody's going to go have PGD in any case, but I would at least suggest, because there are really two questions here, one is the question of the control issue that has been raised, and the other really is the social consequence question.

With respect to the second, it certainly seems to me that the Council could recommend that there be demographic attention to what is happening in the country, and that there be some kind of at least monitoring and reporting of the various clinics that are engaged in this practice, so that we could at least find out the magnitude of the practice and what it's being used for.

This simply is a matter of keeping abreast of the practice from the point of view with social consequences. With respect to the moral argument, it may very well be that the proper document of a case study here would not be simply one-sidedly condemnatory, but that one include in here the arguments in favor as well as the arguments against, and in other words, to adapt this draft so that the reasons that have been offered here are, in fact, incorporated, and we'll take this through another draft and allow people to have their comments.

In the meantime, be thinking about also, in addition to questions of ban, whether or not this body could exercise some influence, for example, over the American Society for Reproductive Medicine as it considers this policy.

Maybe they would like to have, at least, the analytical discussion that we've had here to consider when they meet again and establish some kind of professional self-regulation.

I mean, there are lots of things in between saying nothing and having a ban that are appropriate for our discussion. We will try, I think, at the staff, to incorporate as much as we can this really quite rich discussion of this topic in another draft.

If people have comments on the draft as it now exists, please let's have them so that the next round will be improved. I think, Bill, did you want to comment before we break, please?

DR. MAY: Well, I suppose I don't, like Dan, I don't see it as momentous, because I think, yes, you may have chosen to have a girl, but there's so much unelected in what in fact you get in that girl, that very quickly you learn that parenting is more than willfulness, a willful design.

It seems to me there's a comic element in all this that shouldn't be overlooked. I've often thought that women that I've known eventually wanted a girl because they didn't want to end up entirely in the hands of daughters-in-law in their old age.

There's all sorts of interesting issues. It's not that they objected to having five sons and so forth, but kind of nice to have a daughter in those later years.

All through these meetings, I have spoken on behalf of the gift and beholding instead of excessive molding and so forth, but I think this is one of these cases when the child is born, even though there was that element of choice at the beginning, so much in life would lead to a very different relationship to the parenting experience.

So why, I think in the moral – we're not dealing with the moral and the immoral sometimes, but sometimes a good that may be less good than the perfect understanding of something, but one hopes that in the course of the relationship, a more perfect understanding develops as to what parenting entails.

CHAIRMAN KASS: As usual, thank you very much. Look forward to seeing you at dinner. We will meet tomorrow again, 8:30. We have guests starting in the early session, so please be prompt. Thank you.

(Whereupon, the foregoing matter went off the record at 5:33 p.m.)

  - The President's Council on Bioethics -  
 
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