Straightening your heir: on the constitutionality of regulating the use of preimplantation technologies to select preembryos or modify the genetic profile thereof based on expected sexual orientation.
Remarkably rapid advances in genetics and related technology promise to profoundly impact the future of human health and welfare, (1) through applications ranging from the exceptionally practical and obviously beneficial to the exceedingly extravagant and ostensibly superfluous--e.g., from cancer medication safely and efficiently produced in chicken eggs (2) to grow-your-own breast implants. (3) Even those advances with probable potential for future benefit may in the meantime stir controversy regarding public expenditure on their development or regulation of their eventual use. (4) Future applications of genetics in human reproductive technology will almost certainly be no exception. (5)
Prospective parents already routinely screen for certain genetically linked diseases either during or even prior to pregnancy. (6) A few have used the same technology to select the sex of their potential offspring, (7) while others have expressed interest in screening for other non-health-related traits, including sexual orientation, should testing for those traits ever become available. (8) If technology to safely and effectively accomplish germline genetic modification were ever developed, some prospective parents might consider using this technology, as well, to influence the genetic profile of potential offspring. (9)
Although genetic screening or modification with respect to more complex non-health-related traits, including sexual orientation, is currently unavailable and may well remain so for the foreseeable future, contemplation of the mere possibility of such screening has driven much of the current debate about appropriate public policy regarding this ever-developing area of technology. (10) Legislation was proposed in Maine a couple of years ago that would make it illegal for a woman to terminate her pregnancy based on the expected sexual orientation of the fetus. (11) The bill was widely criticized, (12) but did invite speculation that the Supreme Court may one day consider the constitutionality of regulating the use of screening technologies to select for non-health-related traits. (13) Even more recently, a religious figure drew national media attention following his online conjecture that prenatal testing for sexual orientation might eventually be developed and that in utero hormone therapy--though not abortion or genetic modification--pursuant to the results of such testing would be morally justified if tests revealed a genetic predisposition to homosexuality. (14)
Whether reproductive technology and knowledge of the human genome will ever advance sufficiently to allow for selection or modification based on the trait--or, equally importantly, whether society will ever progress sufficiently to render the controversy moot due to absence of the desire to so select--remains speculative. Nonetheless, should the relevant technology become available and used, even if infrequently, regulations of dubious constitutionality will almost surely result.
This note addresses the possible development of preimplantation technologies that would allow for selection of preembryos or modification of the genetic profiles thereof based on expected sexual orientation. Part II explains the relevant technologies, including current use and possibilities for future development, Part III explores some of the consequences of the availability and use of the technologies for this purpose, and Part IV addresses the constitutionality of hypothetical bans on access to these technologies. I conclude that such prohibitions would be unconstitutional, as well as unwise as a matter of public policy.
II. GENETIC SELECTION AND MODIFICATION TECHNOLOGIES
Any current or future possibilities for preimplantation genetic selection or modification depend on the underlying technology of in vitro fertilization (IVF). (15) Millions of children born throughout the world have been conceived through IVF since 1978, (16) and, although expensive, (17) the procedure remains an attractive option for those who would have difficulty conceiving otherwise. (18) Coupled with preimplantation genetic diagnosis (PGD), it affords an opportunity, even for those who could conceive otherwise, to minimize the probability that any resulting children will possess the genes for certain traits, typically severe genetic diseases for which at least one of the prospective genetic parents has a family history. (19) Advanced technology may eventually allow prospective parents to instead maximize the probability that potential offspring will possess certain desired genes for more complex traits. (20)
A. Preimplantation Genetic Diagnosis
Preimplantation genetic diagnosis (PGD), a process designed to investigate the genetic characteristics of a preembryo prior to its transfer into the uterus, (21) has been described as the first technology to "bridge between the effort to 'assist' human reproduction and the ability to intervene in human heredity, thus extending the helping hands of medical science into the innermost workings of early human life." (22) Many prospective parents turn to PGD as a last resort, some after a history of miscarriage or the death of a child from a terminal genetic disorder. (23) Others seek treatment with the knowledge that they themselves suffer from a late-onset genetic disease that they wish to avoid passing on to their offspring. (24) Preimplantation screening offers them an opportunity to avoid the trauma of initiating a "tentative pregnancy" dependant upon the results of prenatal genetic screening (25) and offers still others the opportunity to conceive at all. (26)
Prior to the procedure, the prospective genetic mother undergoes a hormone treatment program (27) to ultimately stimulate the release of approximately ten to twelve ova, (28) which are then surgically removed and fertilized with sperm, usually by injecting single sperm cells directly into each egg. (29) The resulting preembryos incubate for approximately forty-eight hours after the completion of fertilization--or, usually, about sixty hours after the sperm are injected into the ova. (30) Once they are evaluated to determine developmental potential, (31) those preembryos determined suitable continue to incubate (32) until they each comprise approximately six to ten cells. (33)
Preembryos that continue to develop satisfactorily are then subjected to a biopsy to analyze their genetic profile. (34) To capture the necessary genetic material, a small hole is chemically drilled into the zona pellucida, (35) the "rubbery coat" that surrounds the preembryo, (36) and one or two cells are extracted using a microscopic needle passed through the hole. (37) The extracted embryonic cells are dissolved in a solution, (38) and their genetic material is either analyzed to detect chromosomal abnormalities or for sexing using fluorescence in situ hybridization (FISH), (39) or examined to detect the presence or absence of known genetic sequences following the gene amplification technique of polymerase chain reaction (PCR), if single genes are of interest. (40)
After testing, patients select preembryos for implantation based both on their genetic profiles and morphological properties indicative of development potential. (41) If conception is successful, patients have the option of conducting prenatal genetic testing, such as chorionic villus sampling (CVS) or an amniocentesis test, (42) to confirm the accuracy of preimplantation diagnosis, though, perhaps unsurprisingly, many opt not to do so. (43)
B. Enhanced PGD
For now, the effectiveness of PGD is limited, primarily due to the relatively small number of ova involved, the limits of present knowledge of the functions of even those genes that have been identified, and the relatively low chance (typically about ten to twenty percent) that a transferred preembryo will successfully implant and be carried to term. (44) Consequently, the process is currently used primarily to identify chromosomal abnormalities such as an extra chromosome, analyze for one or two specific genetic defects, or determine the sex of the preembryo to screen against gender-linked recessive diseases. (45)
However, potential application of the technology could be greatly expanded to allow for selection of preembryos based on a more complete genetic profile as more is understood about human genetics and the technology itself is improved. (46) Such expanded application would require that all human genes and their functions be identified, techniques for accurately and rapidly screening them developed, and the efficiency with which the necessary genetic information could be recovered from a gene increased "essentially to 100 percent." (47) Additionally, the number of ova harvested from a single woman would need to be increased from the current dozen to at least one hundred, and the success rate for implantation would have to increase substantially. (48) These advances could be realized within the next half-century, though whether technology to accomplish enhanced screening would actually ever be developed and used remains speculative. (49)
C. Germline Genetic Modification
Of course, the success of even enhanced PGD depends on the availability of preembryos with desired genetic profiles. (50) If IVF does not or cannot yield any such preembryos, the prospective parents are currently left with the option of either implanting those preembryos that do result from IVF or none at all. (51) However, germline genetic modification will offer another option, as the technology would allow the silencing or replacement of one or more undesired genes in the embryonic cells following detection through genetic testing. (52) Modification could be accomplished either by inserting a vector with an appropriate genetic sequence into an existing chromosome, as is currently done in somatic gene therapy, (53) or through use of an auxiliary chromosome--a specially designed, inert framework into which genes may be reliably and predictably inserted. (54)
As with enhanced selection, technology to accomplish human germline modification will probably eventually become feasible, (55) though whether it would actually be developed and used depends on whether underlying technology advances sufficiently to ensure that modification could be accomplished safely and effectively. (56) Even if used for certain traits, some, including sexual orientation, (57) may prove too complex to be conducive to effective modification. (58) Nonetheless, the development of technology to accomplish preimplantation selection or modification based on expected sexual orientation remains a possibility, however remote, provided that knowledge of the human genome advances sufficiently to identify the genetic basis of the trait.
III. PUBLIC POLICY CONSIDERATIONS
Exploration in the field of genetics, particularly with respect to the human genome, has been pursued optimistically in recent years, (59) and, certainly, much progress has been made since Nobel laureates James Watson and Francis Crick published their landmark paper detailing the double-helix structure of DNA in 1953. (60) Significantly, the late 1980's saw the beginning of a project aimed at identifying the sequence of all base pairs of the human genome with the promise of improving our understanding of the "mechanics of disease" and, consequently, enhancing diagnosis and treatment. (61) The Human Genome Project (HGP) was completed more than two years ahead of schedule in April of 2003, and has thus far stimulated the discovery of more than 1,800 genes linked to disease and the development of many of the more than 1,000 genetic tests for health-related conditions currently available. (62) Although sequencing individual genomes is yet prohibitively expensive, once widely available, such sequencing should allow not only more efficient diagnosis of many conditions, but the development of a "powerful form of preventive, personalized, and preemptive medicine." (63)
Though most genetics research in humans has focused on "meeting the most urgent human need genetics can address: diagnosis and treatment of inherited disease," some non-health-related traits have been explored as well, (64) and current research suggests that a variety of traits, including those implicating behavior and personality, are heritable to one extent or another. (65) Perhaps unsurprisingly, while genetics research generally might invite controversy, (66) inquiry into the heritability of certain traits, such as intelligence (67) or predisposition toward violence, (68) but particularly sexual orientation, (69) is extraordinarily controversial. (70) Even assuming that a genetic basis for sexual orientation could precisely be determined to allow for effective screening, research into such a basis is hardly universally encouraged. (71) Nonetheless, it continues to be carried out, (72) and should it be successful, the preimplantation genetic screening technology currently applied primarily to select preembryos based on certain health-related traits (73) could plausibly one day allow for selection or even modification based on sexual orientation. (74)
A. Likelihood of the Development and Use of Preimplantation Screening for Sexual Orientation
While no specific gene or set of genes has yet been identified as the source of differences among individuals with respect to sexual orientation, research strongly suggests some biological basis, probably a genetic one, exists. (75) However, the probability that genetic testing for the trait would eventually be available depends not only on the speed of genetics research, which has thus far generally been quite rapid, but on the nature of the trait itself. (76) Even if differences among individuals with regard to a particular trait are heritable, such differences need not be determined exclusively genetically, (77) and any genetic influence may result from the indirect effects of a number of genes. (78) Although confident that "genes that influence sexual behavior probably will be isolated," Hamer and Copeland conclude that accurate testing for sexual orientation will not be possible, (79) They explain:
[T]he overall accuracy of any such test will probably be low because of the complex interplay of the genes with many different biological, environmental, social, cultural, and temporal factors--factors that cannot be measured or predicted by a blood test. Even with a test, parents could only be told the probability an unborn child would grow up to be straight or gay.... (80)
Prospective parents would probably not heavily demand access to a procedure of such high cost and low accuracy, even if available. (81)
To be sure, there is apparently at least some interest among the general population to use screening technology to select or modify the genetic profile of potential offspring based on sexual orientation, (82) and current use to select based on sex (83) suggests that prospective parents might be willing to screen for other non-health-related traits, including sexual orientation, should the testing become available. (84) Indeed, the complete absence of a test to select for the sexual orientation of potential offspring--as well as the complete absence of even the knowledge of the precise genes involved--has not deterred a few prospective parents from at least giving it a shot. (85) However, concerns that such technology would encourage and attract in substantial numbers those who intend to genetically influence the sexual orientation of their potential offspring may well be unfounded. (86)
Insofar as sexual orientation is subject to genetic selection or modification at all in the future, those prospective parents with at least some family history involving homosexuality or bisexuality would be more likely than others to utilize the technology for this purpose; (87) otherwise, selection would likely be trivial. While a gay or lesbian prospective parent might seek to select among preembryos for those that are genetically predisposed to a homosexual orientation, far more likely is the situation where a straight couple would select otherwise, (88) based on "the difficulties such a child would face in a prejudiced society, the reduced likelihood that such a child would have progeny that would continue the parents' genes, and the parents' own prejudices." (89) Though not an exhaustive list, (90) any chance of widespread use will probably involve these scenarios.
B. Consequences of Unrestricted Access
In addition to any consequences of the technology generally--e.g., that the new technologies might impact the meaning (91) or even nature of procreation (92) or repeat past abuses of genetic knowledge (93)--widespread use of the technology to select or modify based on expected sexual orientation may plausibly not only exacerbate current prejudice against the gay and lesbian community, (94) but alter society demographically, if gays and lesbians are effectively systematically eliminated from the population. (95) However, the improved understanding of the nature of sexual orientation making development of the technology possible may well be accompanied by a general decrease in societal prejudice, given that "[a]ttitudes toward gays and lesbians are inextricably tied up with beliefs about what causes them to be homosexual." (96) In fact, since any prospective parent who trusts that the technologies would be effective enough to warrant any use would necessarily understand sexual orientation as having a genetic basis, such an individual may be less likely to desire to use the screening technology for this purpose in the first place, and so any concern even that use would be widespread may well prove unfounded. (97) Even if not, elimination of gays and lesbians from the population appears unlikely, especially given that the underlying technologies that enable selection against homosexuality are the very same that greatly enhance the reproductive opportunities available to the segment of the population simultaneously most likely to pass the trait to future generations and least likely to select against it. (98)
Indeed, the new technologies would offer all prospective parents more reproductive options, whether or not they choose to use those technologies for this or any other purpose. (99) However, prospective parents who do use the technology for this purpose may develop unrealistic expectations about the technology and about their resulting children that could prove harmful for their children. Not only may testing occasionally be inaccurate, causing an incorrectly identified or ineffectively modified preembryo to be implanted and an unintended child to be born as a result, (100) but even accurate testing would likely only reflect a probability that the potential child will have a given orientation. (101) Consequently, any child born following the procedure and impressed upon throughout his or her upbringing by the parent's expectations may not feel as free to determine his or her own identity as would a child born without the procedure. (102)
C. Consequences of Regulation
Many countries, including Australia, Britain, Canada, France, Germany, India, Japan, and Switzerland, have largely banned or imposed strict regulation on applications of genetic screening in reproduction, (103) although alternative reproductive technologies generally enjoy a virtual absence of regulation in the United States. (104) Still, should access to either selection or modification technologies ever be partially or completely banned in this country, such a ban might have an adverse impact on society generally, by impacting the pace or even quality of future advances in technology and genetics, since restrictions in more developed countries might push research and development of the technologies to those areas of the world that offer the least restrictions and cause that development to be undertaken with less caution. (105)
As for its potential impact on individuals, a ban would limit the reproductive options of those for whom the sexual orientation of prospective offspring is sufficiently important to make use of the technology desirable despite the substantial effort and cost. (106) Any such individuals who decide to have children without access to the technology might well attempt push their children to the desired sexual orientation anyway, but, because such children would be less likely to be predisposed to that orientation in the absence of access to the technology, any harmful effect of such parenting would be negligible in fewer cases. (107)
Thus, even if concerns over possible negative consequences of unrestricted access to these technologies turn out to be justified, regulation would probably not present a more attractive option.
IV. CONSTITUTIONALITY OF REGULATION
Unless our society miraculously manages to reach consensus regarding what today are a number of highly contentious issues--use of alternative reproductive technologies, genetic selection and modification, procreative choice, the nature of and acceptance of differences in sexual orientation--before genetic knowledge and technology advance sufficiently, if ever, to enable genetic selection or modification based on sexual orientation, the Court may well find itself passing on the constitutionality of a ban on such selection or modification. (108) Given apparent public acceptance of the current use of screening to select against preembryos exhibiting a genetic predisposition to certain severe health conditions, (109) an outright ban on screening would be less probable than one limited to preimplantation genetic testing for statutorily well-defined non-health-related traits. (110) On the other hand, given apparent current apprehension of the concept of human germline genetic modification, (111) popular support for a complete ban on the technology would not be inconceivable.
A. Appropriate Level of Scrutiny
Not all state action survives rational basis analysis (112) or falls under strict scrutiny. (113) Nonetheless, legislation instituting either of the above bans would probably survive or fall depending on the level of scrutiny the Court determines appropriate. Although case law indicates that strict scrutiny would be the appropriate choice, (114) the novelty of the technology and unprecedented extent to which that technology affords prospective parents influence over the genetic profile of potential offspring, (115) as well as the nature of the technology as operating in the window between fertilization and implantation, (116) complicates this determination.
1. Considering Rational Basis Analysis
While the Court does not "sit as a super-legislature" to evaluate the wisdom of ordinary economic or social legislation, (117) it does accord a less deferential attitude toward legislation that interferes with a fundamental right of privacy. (118) It has recognized the foundation of this right in the specific guarantees of the Bill of Rights (119)--specifically, the First, (120) Fourth and Fifth, (121) and Ninth Amendments (122)--though current jurisprudence places that right directly within the liberty guaranteed by the Due Process Clause of the Fourteenth Amendment. (123) The Court has defined no specific boundaries (124) but indicates that this "private sphere of individual liberty" (125) is implicated to at least some extent in the contexts of marriage, (126) procreation, (127) contraception, (128) family relationships, (129) child upbringing and education, (130) bodily integrity, (131) abortion, (132) and, probably, refusal of medical treatment. (133) Although access to enhanced selection or modification technologies does fall directly within the procreation context, these technologies allow prospective parents an influence over the genetic profile of potential offspring that the Court has never explicitly determined is included within this protected sphere of privacy.
To make such a determination, the Court first formulates a "'careful description' of the asserted fundamental liberty interest." (134) It then examines history and legal precedent to objectively ascertain whether that interest is "deeply rooted in this Nation's history and tradition" (135) or "'implicit in the concept of ordered liberty' such that 'neither liberty nor justice would exist if they were sacrificed.'" (136) One might conclude that an interest in access to a novel technology that allows unprecedented influence over the genetic profile of potential offspring is not deeply rooted in tradition, and that regulation of that access would therefore be subject only to rational basis scrutiny, under which it would almost certainly survive. (137)
However, while such a narrow description of the interest at issue--merely as an interest in access to a particular technology--may well be "careful,"
this narrow characterization may obscure broader underlying liberty interests. (138) Indeed, the interest in access to selection and modification technologies is essentially an interest in autonomy in decisions related to family planning and child care and upbringing--choices which have consistently been recognized as "central to the right of privacy" (139)--though this particular formulation of the interest is too broad for careful analysis. However, even under the strictest explicit guidelines the Court has offered for evaluating an asserted interest--that the description must be formulated at "the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified" (140)--individual interests implicated by both hypothetical bans would lie within the sphere of privacy.
In the context of access to selection technology, the most specific relevant interest that may be identified is an interest in access to genetic information material to the decision whether to procreate. (141) Autonomy in making that decision itself clearly enjoys a heavy measure of constitutional protection, for "[i]f the right of privacy means anything, it is the right of the individual ... to be free of unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child," (142) and selection technology basically functions as a selective postfertilization contraceptive. (143)
It functions like a contraceptive, though, for which access to genetic information is critical. The Court has generally recognized some right of access to information, (144) and, specifically in the procreation context, has acknowledged a right of access to information relevant to the decision whether to bear or beget a child. (145) As for the particular information involved here, courts widely recognize at least the relevance, if not crucial importance, of certain genetic information of the potential offspring to a mother's decision whether to continue pregnancy, given the number of jurisdictions that recognize "wrongful birth" actions. (146) Moreover, the availability of selection technology, at least for health-related applications, apparently enjoys wide public support. (147) Even though availability for non-health-related applications does not enjoy such support, neither does regulation, (148) which has yet to be pursued despite current, albeit infrequent, use of PGD for sex selection. (149) Such evidence indicates that the individual interest burdened by the hypothetical partial ban on PGD lies within the protected sphere of privacy.
In the context of access to modification technology, insofar as the availability of influence over a particular trait would be determinative of the decision whether to procreate, access would be presumptively protected under analysis similar to that above regarding an interest in access to selection technology. (150) Generally, however, such availability is not determinative, (151) and the most specific relevant interest that may be identified is an interest in influencing the genetic profile of potential offspring. Whatever right of influence technology has traditionally afforded has rested exclusively with prospective parents rather than with the state, from the more basic method of influence afforded by autonomy in spousal selection (152) to the more extensive method now afforded by the widely accepted and unregulated technology of PGD. (153) The concept of germline modification does not currently enjoy such acceptance, but probably eventually would if the technology is ever to develop and become used significantly, (154) and, even if not, an interest's status as fundamental does not turn on societal acceptance of a particular application. (155) Moreover, the control afforded to prospective parents in this context is consistent with the wide autonomy parents have traditionally exercised in matters of child care and upbringing. (156)
To be sure, such control has certainly never been to the extent allowed by modification technology nor has it had such far-reaching consequences. Nonetheless, the protection of individual autonomy that the Constitution affords is not static, (157) and any concerns raised by its consequences are relevant not to the determination of whether an interest in access to the technology is presumptively protected, but whether the state has a compelling interest sufficient to sustain its regulation. (158)
2. Considering Undue Burden Analysis
The Court has made clear that regulations burdening "a decision as fundamental as whether to bear or beget a child" must survive strict scrutiny if that decision is made prior to a certain point, (159) but that such regulations need only have a rational basis and not unduly burden the same decision made after that point. (160) The Court has used the terms "outset of pregnancy" (161) and "inception of pregnancy" (162) to describe this point at which the state may assert its "legitimate," though not "compelling," interest in potential life, (163) but in cases which presume that the woman making the potentially burdened decision has already been pregnant for some time and probably conceived in the conventional manner. Consequently, it has never determined which moment during the process from fertilization through implantation (164) or beyond marks the threshold between the propriety of strict scrutiny and that of undue burden analysis. (165)
If the Court determines that this threshold lies at a point as early as fertilization (166) or at any other point before the relevant technologies operate, either the hypothetical partial ban on enhanced PGD or the complete ban on germline modification would be upheld as long as it has a rational basis and does not constitute an undue burden. (167) In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court explained in the abortion context:
The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause. (168)
It specified that "[r]egulations which do no more than create a structural mechanism by which the State ... may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose. (169)
Possessing the ability to know or substantially influence the genetic profile of potential offspring before implantation is obviously not inherently material to the decision whether to procreate. (170) Indeed, it might be relevant to that decision in a small minority of cases and determinative in far fewer. A ban on testing for a particular trait for purposes of selection or a ban on germline modification would constitute a "substantial obstacle" to the decision whether to procreate only for those individuals who could not or would not procreate except for access to those technologies.
The Court explained in Casey that "[t]he proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant." (171) It determined that the proper focus for scrutiny of a spousal notification provision was not "all women or all pregnant women" but, specifically, "married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement." (172) The Court concluded that the provision imposed an undue burden, because "in a large fraction of the cases in which [the provision] is relevant, it [would] operate as a substantial obstacle to a woman's choice to undergo an abortion." (173) Because it is unlikely that lack of access to selection or modification technologies would be determinative of the decision to procreate in a "large fraction" of cases in which that access would be relevant, the hypothetical bans addressed in this note would likely survive a facial challenge. (174)
However, opinions of members of the Court that have mentioned the issue of access to postfertilization contraception have suggested that the appropriate moment at which the state's interest in potential life becomes sufficiently significant to justify abandoning strict scrutiny is not prior to completion of implantation in the uterine wall. (175) Consistently with this suggestion, the American College of Obstetricians and Gynecologists defines the beginning of pregnancy as the completion of implantation, (176) and the Court has specified that undue burden analysis applies to regulations that impact the decision whether to procreate from the "inception of the pregnancy." (177) Since, at this point in embryonic development, twinning remains possible, and embryonic cells have yet to differentiate into those that will continue in the embryo and those that will develop into the placenta, (178) perhaps a more appropriate threshold would be at the fifteenth day after the beginning of fertilization, at which point the "embryo is committed to the formation of a single human being, or none at all" (179)--a point at which the state's interest in potential life might rise to a certain critical level of significance in a similar sense as that interest rises to the level of "compelling" at the point of viability. (180) In either case, strict scrutiny would be applicable to the hypothetical bans considered in this note.
"Where certain 'fundamental rights' are involved, the Court has held that regulation limiting these rights may be justified only by a 'compelling state interest,'" (181) "and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake." (182) The state may attempt to justify either hypothetical ban by asserting a legitimate interest in the "potentiality of human life," (183) which generally comprises both a basic interest in expansion of the population, as well as an interest in ensuring respect for potential life. (184) Since the net effect of the hypothetical bans would be to decrease the potential population, given that it would discourage those prospective parents for whom selection of sexual orientation was sufficiently important from having children at all, only the latter aspect of the state's interest is relevant here. However, even that interest does not save either hypothetical ban, because the Court has already determined that the state's interest in potential life does not become sufficiently "compelling" to defeat autonomy in reproductive decisions until viability, (185) and preimplantation selection and modification technologies operate well before that point.
Nor will a legitimate interest in "protecting the ethics and integrity of the medical profession" (186) save either ban. While sufficient in Gonzales v. Carhart, where the Court upheld a ban on a certain method of abortion used even previability, (187) this interest in protection of the medical profession is grounded in the same concern for respect for potential life (188) as that interest that the court has already determined is not compelling before viability. (189) While such a legitimate interest may be successfully asserted for purposes of undue burden analysis as in Carhart, (190) this interest will not justify either ban under the strict scrutiny required here.
Certain other interests yet to be contemplated by the Court in the procreation context would probably also be insufficient. For example, particularly in support of a ban on germline modification, the state might assert an interest in preserving the diversity of the gene pool (191) or in preventing the eventual development of an insurmountable social gap between "enhanced" and "unenhanced" individuals arising due to exclusive access to the technology only by those who can afford it. (192) Insofar as such interests may be compelling under some set of circumstances, the former would not be compelling absent widespread use, and the latter would not be compelling absent availability for such a wide range of traits and in such a manner that it threatens to produce the feared outcome. Both sets of circumstances remain speculative at this point.
Finally, the potential child has no relevant interests that may be asserted by the state on its behalf. Certainly, if a given preembryo is selected for implantation either with or without having been modified and then carried to term, the resulting person should enjoy some degree of autonomy in determining his or her own identity (193) and, even as a child, some interest to be considered with respect to certain childcare decisions presumptively under the parent's control. (194) However, the preembryo simply does not qualify as a person for purposes of Fourteenth Amendment protection. (195) While one might argue that "[t]o recognize rights only after the child is born would be too late because the germline intervention will have already been performed and the genetic destiny of the child and all of her descendants will already be set in stone," (196) even in the absence of modification, a child is born having had absolutely no control over its genetic profile. To deny parents the opportunity to modify would merely sanctify chance at the expense of parental autonomy.
Therefore, the hypothetical bans addressed in this note would not only be unwise as a matter of public policy--as they would address remotely potential negative consequences at the expense of safe and cautious development of inevitable technology--but, in any event, would fall under strict scrutiny. While we may not be comfortable with the decisions any given prospective parent might make, we must accept that "a necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices." (197)
(1.) See LEE M. SILVER, CHALLENGING NATURE: THE CLASH OF SCIENCE AND SPIRITUALITY AT THE NEW FRONTIERS OF LIFE 269-70 (2006) (discussing past accomplishments in biotechnology and future possibilities).
(2.) Sheep Cloners Put Cancer Medicines in Chicken Eggs, STAR-LEDGER (Newark, NJ), Jan. 15, 2007, at 4. Chickens may be genetically designed to lay eggs that generate human immune system proteins used in the manufacture of cancer medication. Id. Other animals, such as cattle, sheep, and goats, have been genetically engineered to produce milk containing human insulin and proteins used to treat cystic fibrosis. Id.
(3.) Jonathan Leake, Now You Can Grow Your Own Breast Implants, SUNDAY TIMES (U.K.), Feb. 11, 2007, at 10. The enlargement technique utilizes stem cells and fat from the woman's own body to develop implants that "becom[e] an integral part of the breast rather than a foreign lump." Id.
(4.) Consider the salience of stem cell research as a political issue. See, e.g., Kitta MacPherson, Corzine Rallies Those in Need of Stem Cell Miracle: Candidate Vows to Foster Controversial Research, STAR-LEDGER (Newark, NJ), Sept. 15, 2005, at 17.
(5.) See SILVER, supra note 1, at x (noting that "biotechnologies directly challenge the most deeply rooted religious and spiritual claims of limits to human knowledge and power over the natural world").
(6.) John A. Robertson, Procreative Liberty in the Era of Genomics, 29 AM. J.L. & MED. 439, 456 (2003). Such screening is "now standard practice for couples with a family history of [a particular] disease or when population screening is justified." Id.
(7.) Id. at 460. For examples of actual cases of screening for purposes of sex selection, see, e.g., Rob Stein, A Boy for You, a Girl for Me: Technology Allows Choice, WASH. POST, Dec. 14, 2004; Beth Whitehouse, Gender Bias Technology Has Led to Better Sex Selection for Would-Be Parents, but the Controversies Remain, ST. PAUL PIONEER PRESS, Sept. 9, 2004.
(8.) See Elizabeth Banger & Glenn McGee, Aspiring Parents, Genotypes and Phenotypes: The Unexamined Myth of the Perfect Baby, 68 ALB. L. REV. 1097, 1102 (2005) (summarizing study findings measuring attitudes toward selection for different traits).
(9.) See SILVER, supra note 1, at 347-48 (concluding that germline genetic engineering will eventually become an accepted practice).
(10.) Robertson, supra note 6, at 460.
(11.) Jeff Tuttle, "Gay Gene" Bill Stirs Debate in Augusta, BANGOR DAILY NEWS (Me.), May 6, 2005, at B1; Mark Peters, Critics: "Gay Gene" Bill About Politics, Not Rights, PORTLAND PRESS HERALD, Feb. 24, 2005, at B1. The bill provided, "An abortion may not be performed when the basis for the procedure is the projected sexual orientation of the fetus after birth, based on analysis of genetic materials of the fetus in which sexual orientation is identified through the presence or absence of a so-called 'homosexual gene.'" Act to Protect Homosexuals from Discrimination, L.D. 908, 122d Leg., Reg. Sess. (Me. 2005).
(12.) Peters, supra note 11.
(13.) See Jeffrey Rosen, Roberts v. the Future, N.Y. TIMES, Aug. 28, 2005, [section] 6 (Magazine), at 24.
(14.) Homosexuality May Be Based on Biology, Baptist Says, N.Y. TIMES, Mar. 16, 2007, at A17; David Crary, "Gay Baby" Article Irks Both Sides: Baptist Leader's Theory Assailed on Left, Right, CHI. TRIB., Mar. 15, 2007, at 3.
(15.) GREGORY STOCK, REDESIGNING HUMANS: CHOOSING OUR GENES, CHANGING OUR FUTURE 53-54 (2002); LEE M. SILVER, REMAKING EDEN: HOW GENETIC ENGINEERING AND CLONING WILL TRANSFORM THE AMERICAN FAMILY 87 (Perennial 2002) (1997).
(16.) SARAH FRANKLIN & CELIA ROBERTS, BORN AND MADE: AN ETHNOGRAPHY OF PREIMPLANTATION GENETIC DIAGNOSIS, at xx (2006). More than two million conceived via IVF were born worldwide by 2005, though the procedure is used more widely in some countries than others. See id In Denmark, for example, children conceived through the procedure account for up to five percent of the birthrate, id., while, as of 2002, still accounted for less than one percent in the United States, STOCK, supra note 15, at 55.
(17.) See STOCK, supra note 15, at 53 (noting that "[a]n IVF cycle in the United States typically costs about $10,000, and is not covered by health insurance").
(18.) Donrich W. Jordaan, Preimplantation Genetic Screening and Selection: An Ethical Analysis, 22 BIOTECHNOLOGY L. REP. 586, 586 (2003).
(19.) See FRANKLIN & ROBERTS, supra note 16, at 17. Use even for health reasons may prove controversial under certain circumstances, as in a "savior sibling" case, illustrated by the Nash family, "whose HLA-typed offspring Adam saved his sister Molly's life through a transfusion of his cord blood." Id. at 35. For a thorough treatment of this issue, see generally Donna M. Gitter, Am I My Brother's Keeper? The Use of Preimplantation Genetic Diagnosis to Create a Donor of Transplantable Stern Cells for an Older Sibling Suffering from a Genetic Disorder, 13 GEO. MASON L. REV. 975 (2005-2006).
(20.) See SILVER, supra note 15, at 243 (enhanced screening); STOCK, supra note 15, at 105 (genetic modification).
(21.) Soren Holm, Ethical Issues in Pre-implantation Diagnosis, in THE FUTURE OF HUMAN REPRODUCTION: ETHICS, CHOICE, AND REGULATION 176, 176 (John Harris & Soren Holm eds., 1998) [hereinafter FUTURE OF HUMAN REPRODUCTION].
(22.) FRANKLIN & ROBERTS, supra note 16, at xv.
(23.) Id. at 17.
(24.) See id.
(25.) Id. at 18. Some "undergo serial terminations of wanted pregnancies following a positive diagnosis of chronic and often terminal genetic disease." Id at 56. The authors describe this unfortunate situation as "reproductive roulette." Id. at 106 (quoting Susan Picketing et al., Strategies and Outcomes of the First 100 Cycles of Preimplantation Genetic Diagnosis at the Guy's and St. Thomas' Center, FERTILITY & STERILITY, Jan. 2003, at 81, 82).
(26.) Id. at 106.
(27.) See id. at 141-43. After the patient begins treatment with medications designed to "down-regulate" ovarian hormone production by producing a "temporary chemical menopause," id. at 141, she follows with the introduction of hormones to stimulate follicular growth and induce ovulation, see id. at 142-43 & n,8.
(28.) Id. at 145. Though approximately a dozen is typical, the procedure may yield as many as thirty ova. Jordaan, supra note 18, at 586.
(29.) SILVER, supra note 15, at 242. Sperm are injected using intracytoplasmic spermatic injection (ICSI), a technique developed to treat male infertility, but now also used with PGD to avoid the contamination of the outside of the ovum with paternal DNA and the consequent impact on the accuracy of genetic testing. FRANKLIN & ROBERTS, supra note 16, at 145.
(30.) FRANKLIN & ROBERTS, supra note 16, at 139.
(31.) Id. The authors explain that "'[g]ood-looking' embryos display clear, even, well-rounded development, giving a robust appearance of vitality," while "'[ploor-looking' embryos show signs of disaggregation, uneven development, opaque coloring, and stalled or delayed cellular division." Id. at 145.
(32.) Id. at 139.
(33.) Jordaan, supra note 18, at 586-87. At this stage in development, the cells constituting the preembryo are totipotential--i.e., not yet "committed to a specific developmental path"--so that removal of a couple of cells will not impact normal embryonic development. Holm, supra note 21, at 176. At a later stage, separation of individual cells will become difficult or impossible, while at an earlier stage, removal threatens development. SILVER, supra note 15, at 242; see also FRANKLIN & ROBERTS, supra note 16, at 145 n.11.
(34.) FRANKLIN & ROBERTS, supra note 16, at 145. Even among the preembryos that have developed satisfactorily, typically not all survive biopsy. See id. (noting that some may burst, collapse, or behave unpredictably).
(35.) SILVER, supra note 15, at 242.
(36.) Id. at 43.
(37.) Id. at 242.
(39.) See FRANKLIN & ROBERTS, supra note 16, at 139. The procedure "uses a probe tagged with a fluorescent dye to bind to targeted regions of particular chromosomes." Id. at 139 n.3 (citing Paul Scriven, Alan H. Handyside & Caroline Mackie Ogilvie, Chromosome Translocations: Segregation Modes and Strategies for Preimplantation Genetic Diagnosis, 18 PRENATAL DIAGNOSIS 1437 (1998)).
(40.) See id. at 139. See generally SILVER, supra note 15, at 240-41 (explaining PCR); DESMOND S.T. NICHOLL, AN INTRODUCTION TO GENETIC ENGINEERING 11819 (2d ed., 4th prtg. 2005) (same, though in more detail). To selectively amplify the desired sequence, scientists heat a mixture containing, inter alia, targeted DNA strands, primers--molecules which anneal to single strands of DNA at certain points in the sequence, NICHOLL, supra, at 31--and DNA polymerase--generally, an enzyme which synthesizes copies of DNA molecules, id. at 49, and, specifically for PCR purposes, one of thermostable form to ensure proper functioning during repeated heating cycles, see id. at 119--to denature the DNA. Id. Once the DNA has separated into single strands, the mixture cools to allow the primers to mark off and the polymerase to copy the desired sequence. See id. The process is continuously repeated through use of a programmed heating system called a thermal cycler to generate enough copies of the sequence for assay. See id.
(41.) See FRANKLIN & ROBERTS, supra note 16, at 151. Prospective parents sometimes find themselves confronted with a choice between those preembryos that have favorable genetic characteristics but little developmental potential and those that have the most potential but lack the desired genetic profile. Id.
(42.) See generally ROBERT BLANK & JANNA C. MERRICK, HUMAN REPRODUCTION, EMERGING TECHNOLOGIES, AND CONFLICTING RIGHTS 134-36 (1995) (explaining CVS and amniocentesis).
(43.) FRANKLIN & ROBERTS, supra note 16, at 158. The authors describe the thoughts of one study participant, "Having spent so much time and effort trying to have a child, they could not imagine making a decision to terminate a child who 'may be the only chance you ever get.'" Id. at 159. Of course, the procedure does not always even result successfully in conception, and some patients experience the "end point problem," an "inability to bring themselves to walk away from treatment empty-handed." Id. at 166. With this in mind, patients often decide on a limit to the number of unsuccessful IVF cycles they will undergo--often three--before ending treatment. Id. at 168. However, conception need not be the only positive outcome of treatment, as patients may derive satisfaction, for example, from having tried the procedure unsuccessfully and freeing themselves to move on to other options. Id. at 192.
(44.) See Jordaan, supra note 18, at 587.
(46.) See SILVER, supra note 15, at 243.
(48.) See id.
(49.) See id. at 244-47 (describing possible technological developments and concluding that it is an "almost certainty" that such "genetic choice will become feasible by the middle of the twenty-first century"). On the other hand, Professors Franklin and Roberts assert, "The optimistic anticipation by some PGD specialists of multiplex diagnostic assays capable of detecting 'all known genetic disorders' may suggest an improved future for PGD, but the technological obstacles to such a quantum leap in diagnostic accuracy do not appear to be lessening over time." FRANKLIN & ROBERTS, supra note 16, at 199-200.
(50.) See JOHN A. ROBERTSON, CHILDREN OF CHOICE: FREEDOM AND THE NEW REPRODUCTIVE TECHNOLOGIES 162 (1st paperback prtg. 1996) ("When one or more embryos are found to have a genetic defect and fetal or postnatal therapy is not effective, the couple might request gene therapy because they have few healthy embryos to transfer....").
(51.) See FRANKLIN & ROBERTS, supra note 16, at 151-52 (explaining that choices with regard to implantation are often difficult).
(52.) See Christine Willgoos, FDA Regulation. An Answer to the Questions of Human Cloning and Germline Gene Therapy, 27 AM. J.L. & MED. 101, 105 (2001).
(53.) See STOCK, supra note 15, at 37-38. Somatic therapy is currently used in the treatment of particular genetically linked diseases after birth by targeting a particular tissue, whereas germline modification would influence the genetic profile of virtually every cell in the individual by introduction of the new gene early on in development. See id. at 37-39 (comparing somatic and germline modification).
(54.) Id. at 65-66. For a thorough treatment of the technology and its implications, see generally id.
(55.) See id. at 109 ("Many leading scientists are convinced that conscious manipulation of the human germline will eventually be feasible, although they differ about whether it is desirable.").
(56.) See id. at 64 (2002) ("Prospective parents will not seriously consider altering the genetics of their future children until there are both seductive genetic constructs to use and safe, reliable methods to put them into an embryo. Neither exists today."). Professor Silver optimistically speculates, "Almost certainly, at some point, a combination of scientific knowledge, technology, reduced risks, increased benefits, and societal acquiescence will cross a threshold, allowing human genetic engineering to proceed." SILVER, supra note 1, at 347-48.
(57.) See discussion infra Part III.A (discussing likely nature of genetic influence on sexual orientation and probability of development of procedure for selection or modification).
(58.) See STOCK, supra note 15, at 54 (speculating that the secondary effects resulting from differences in many genes could make modification of especially complex traits impossible). However, some polygenic traits could possibly be effectively influenced by modification with single gene. See Lee M. Silver, How Reprogenetics Will Transform the American Family, 27 HOFSTRA L. REV. 649, 651 (1999) (describing how diabetes could be controlled using only a single gene for insulin).
(59.) See John A. Robertson, Genetic Selection of Offspring Characteristics, 76 B.U.L. REV. 421, 421 (1996).
(60.) Robertson, supra note 6, at 439.
(61.) Id. at 439-40.
(62.) See National Institutes of Health (NIH), Human Genome Project Fact Sheet, http://www.nih.gov/about/researchresultsforthepublic/HumanGenomeProject.pdf (last visited July 14, 2007). For a thorough account of the history of the HGP, see generally JAMES D. WATSON WITH ANDREW BERRY, DNA: THE SECRET OF LIFE 166-93 (2d paperback prtg. 2006).
(63.) NIH, supra note 62.
(64.) WATSON, supra note 62, at 374.
(65.) See id. at 375-81 (discussing twin studies); see also Dorothy Nelkin, The Social Power of Genetic Information, in THE CODE OF CODES" SCIENTIFIC AND SOCIAL ISSUES IN THE HUMAN GENOME PROJECT 177, 181 (Daniel J. Kelves & Leroy Hood eds., 1992) [hereinafter CODE OF CODES] (mentioning a number of complex traits thought to have a genetic basis). For a thorough treatment of the subject, see generally MATT RIDLEY, THE AGILE GENE: HOW NATURE TURNS ON NURTURE (Perennial 2004) (2003); DEAN HAMER & PETER COPELAND, LIVING WITH OUR GENES: WHY THEY MATTER MORE THAN YOU THINK (Anchor Books 1999) (1998).
(66.) See James D. Watson, A Personal View of the Project, in CODE OF CODES, supra note 65, at 164, 173 (Daniel J. Kelves & Leroy Hood eds., 1992). Dr. Watson worried,
Deep down, I think the only thing that could stop our program is fear; if people are afraid of the information we find, they will keep us from finding it. We have to convince our fellow citizens somehow that there will be more advantages to knowing the human genome than to not knowing it.
(67.) See SILVER, supra note 15, at 101.
(68.) HAMER & COPELAND, supra note 65, at 125. See generally David Wasserman, Is There Value in Identifying Individual Genetic Predispositions to Violence?, 32 J.L. MED. & ETHICS 24 (2004).
(69.) See SIMON LEVAY, QUEER SCIENCE 5 (1996) (observing that "research that attempts to find the cause of homosexuality is inherently a social and political enterprise as well as a scientific one").
(70.) STOCK, supra note 15, at 105 (stating that "[s]tudies in such politically charged areas [as religiosity, criminality, intelligence, addiction, and sexual orientation] may prove too controversial to fund"); WATSON, supra note 62, at 363 (observing that "[t]he scientific agenda reflects society's preoccupations, and all too often social and political considerations end up outweighing purely scientific ones").
(71.) See, e.g., HAMER & COPELAND, supra note 65, at 195 (remarking on the response to Hamer's 1993 paper that "[r]arely before have so many reacted so loudly to so little.").
(72.) E.g., Robert Mitchum, Study of Gay Brothers May Find Clues About Sexuality, CHI. TRIB., Aug. 12, 2007, at 1.
(73.) See Robertson, supra note 6, at 456 (explaining that screening for such diseases as cystic fibrosis, sickle cell anemia, and Tay Sachs is routine).
(74.) Some forecasts are more optimistic than others. Compare Michael J. Malinowski, Choosing the Genetic Makeup of Children: Our Eugenics Past-Present, and Future?, 36 CONN. L. REV. 125, 195-97 (2003) (suggesting that development of these technologies may occur sooner rather than later), with Robertson, supra note 6, at 467 (suggesting that such technologies may never be developed at all).
(75.) See LEVAY, supra note 69, at 177 (addressing genetics research); JOAN ROUGHGARDEN, EVOLUTION'S RAINBOW: DIVERSITY, GENDER, AND SEXUALITY IN NATURE AND PEOPLE 247-48 (2004) (summarizing findings of twin studies); see also Mitchum, supra note 72 (noting that "scientists are largely in agreement that sexual orientation is at least partially determined by biology"). Specifically, Professor LeVay concludes that twin studies "offer substantial if not totally watertight evidence that there is a genetic influence on sexual orientation, at least in men," and that "other lines of evidence support the conclusions drawn from the twin studies." LEVAY, supra note 69, at 177. For a thorough explanation of some of the scientific research on the subject, see generally CHANDLER BURR, SEPARATE CREATION: THE SEARCH FOR THE BIOLOGICAL ORIGINS OF SEXUAL ORIENTATION (1996); DEAN HAMER & PETER COPELAND, THE SCIENCE OF DESIRE: THE SEARCH FOR THE GAY GENE AND THE BIOLOGY OF BEHAVIOR (1994); LEVAY, supra note 69; SIMON LEVAY, THE SEXUAL BRAIN (1993). Dr. Watson speculates that "we will indeed eventually identify some genetic factors that predispose us to our respective sexual orientations." WATSON, supra note 62, at 391.
(76.) See Robertson, supra note 6, at 456.
(77.) See HAMER & COPELAND, supra note 75, at 218; ROUGHGARDEN, supra note 75, at 248. The ultimate expression of a trait often depends on the complex interaction between genetics and environment. See HAMER & COPELAND, supra note 65, at 120-21 (discussing environmental influence with respect to aggression); STOCK, supra note 15, at 100 (explaining that "[g]enes not only affect our minds and bodies directly by shaping our biology, they also do so indirectly, by influencing the environment we experience"). For a thorough treatment of this interaction, see generally RIDLEY, supra note 65, and, for a discussion specifically with respect to sexual orientation, see generally id at 159-63.
(78.) See RIDLEY, supra note 65, at 87. The author explains, "Heritability is usually highest for those features of human nature caused by many genes rather than by the action of single genes. And the more genes involved, the more the heritability is actually caused by the side effects of genes rather than the direct effect." Id.
(79.) HAMER & COPELAND, supra note 75, at 218; see also Robertson, supra note 6, at 456 (testing for the trait not likely to become available in the near future, even if at all).
(80.) HAMER & COPELAND, supra note 75, at 218.
(81.) See Robertson, supra note 6, at 456; cf. Alexander van Voorhees, Note, Truth in Testing Laws: A Shot in the Arm for Designer Gene Tests, 16 HEALTH MATRIX 797, 802-03 (2006) (opining that the use of prenatal "non-pathologic elective testing" would be unlikely even if desired by patients and offered by physicians, given the impact on quality and usefulness of information obtained due to the influence of non-genetic factors in the ultimate expression of the traits tested). Even current alternative reproductive technologies, though effective, are often used only as a last resort. STOCK, supra note 15, at 54 (adding that "IVF works well today, but it remains too expensive, unpleasant, unreliable, and intrusive to compete head on with good old-fashioned sex").
(82.) Beg LORI B. ANDREWS, FUTURE PERFECT: CONFRONTING DECISIONS ABOUT GENETICS 175 (2001) (national poll revealed that thirty-six percent of respondents believed that controlling a potential child's sexual orientation would be "very important" (citing Press Release, Harper's (Nov. 12, 1997))).
(83.) E.g., Stein, supra note 7.
(84.) See STOCK, supra note 15, at 97 (noting that present choices that "reveal the cultural and biological desires that shape our preferences" might be an indication of which traits prospective parents will choose to modify should the technology and genetic knowledge become available).
(85.) See Dorothy C. Wertz, How Parents of Affected Children View Selective Abortion, in ISSUES IN REPRODUCTIVE TECHNOLOGY I: AN ANTHOLOGY 161 (Helen Bequaert Holmes ed., Garland Publ'g 1992) [hereinafter ANTHOLOGY]. In a study analyzing the attitudes of prospective parents confronted with the decision whether to terminate pregnancy based on genetic diagnosis, the author notes that in the case of Klinefelter and Turner syndromes, the sex chromosome disorders for which prospective parents are most likely to opt for abortion, "[o]ften parents fear that children with these disorders, especially boys, will be homosexual." Id. at 167 (citing Arthur Robinson, Bruce G. Bender & Mary C. Linden, Decisions Following the Intrauterine Diagnosis of Sex Chromosome Aneuploidy, 34 AM. J. MED. GENETICS 552 (1989)).
(86.) See Banger & McGee, supra note 8, at 1104. This recent study questioned members of the general public, couples enrolling in an IVF program, and couples who conceived without the use of IVF, concerning how likely they would be to select for or improve certain enumerated traits--susceptibility to breast cancer, hair color, creativity, memory, sense of humor, social skills, skill at a particular activity such as sports or music, attractiveness, height, sexual orientation, eye color, weight, intelligence, and hearing (though, curiously, gender, for which screening is already used, was not included)--for their prospective child, Id. at 1100-01. While the authors noted limitations in generalizing the results of the study, id. at 1103, they found that couples enrolled in IVF programs had no more desire to use screening to influence the genetic profile of their potential offspring than the rest of the study population, see id. at 1104-05.
Moreover, the study suggests that sexual orientation was an "unimportant trait" to those interviewed. Id. at 1108. Note, though, that sexual orientation did achieve a higher median score than attractiveness on the scale measuring the likelihood that the prospective parents would choose their prospective offspring's characteristics, yet sexual orientation was grouped with the "unimportant traits" such as height and hair and eye color while attractiveness was grouped with "moderately important traits" such as intelligence and social skills, Id. The authors mention this counterintuitive grouping when discussing the results of the study. See id. at 1102.
(87.) See John A. Robertson, Gay and Lesbian Access to Assisted Reproductive Technology, 55 CASE W. RES. L. REV. 323, 362 (2004).
(88.) See id. Intriguingly, although prospective parents could presumably select either for or against homosexuality should they choose to make such a selection at all, the questionnaire used in the study conducted by Banger and McGee asked, "If you could make sure your future child will not be homosexual, how likely would you be to do so?" Banger & McGee, supra note 8, at 1110. Although this reveals no prejudice on the part of the researchers, the question does demonstrate that the researchers apparently operated under the assumption that, were the prospective child's sexual orientation relevant at all to its prospective parents, homosexuality would more than likely be viewed by those parents as a trait to be selected against rather than for. Of course, circumstances may change. Societal attitudes toward homosexuality may progress. See LEVAY, supra note 69, at 2 (noting connection between understanding
of nature of homosexuality and attitude toward gay and lesbian community). Moreover, "if sex and reproduction are increasingly separated through the use of techniques such as artificial insemination [or IVF], and if the 'gay gene' has some beneficial side effect, it may prosper. People might even want to introduce the gay gene into their offspring if the advantages were great enough." HAMER & COPELAND, supra note 75, at 186.
(89.) Robertson, supra note 6, at 467.
(90.) For example, any parent already having children of one particular sexual orientation, might, for whatever reason--perhaps family balance--decide to select for the other orientation for a subsequent child. Cf id at 462 (with regard to selection based on sex). Although plausible with respect to selecting for sexual orientation, this scenario seems much more likely with respect to selection for sex.
(91.) Some have argued, for example, that use of even the current technology encourages disrespect for human life by inviting the perception of children as commodities, see Robertson, supra note 6, at 467 (though the author disagrees); Jordaan, supra note 18, at 591 (same, emphasizing absence of any basis for the belief that parents who use the procedure would love and respect their children any less than those who do not), while feminist scholars have analyzed the consequences for women of alternative reproductive technologies from a variety of perspectives, some rejecting and others defending access to the new technologies, see generally NANCY LUBLIN, PANDORA'S BOX: FEMINISM CONFRONTS REPRODUCTIVE TECHNOLOGY (1998); ANTHOLOGY, supra note 85; Margaret Brazier, Reproductive Rights: Feminism or Patriarchy?, in FUTURE OF HUMAN REPRODUCTION, supra note 21, at 66; Marie Fox, d Woman's Right to Choose? A Feminist Critique, in FUTURE OF HUMAN REPRODUCTION, supra note 21, at 77. Professor Mary Anne Warren concludes that there is "no reason to believe that providing voluntary access to innovative reproductive ... procedures will inevitably lead to any of the dystopian consequences envisioned by feminist or conservative critics." Mary Anne Warren, Abortion: New Complexities, in ANTHOLOGY, supra note 85, at 113, 118.
(92.) ROBERTSON, supra note 50, at 151 ("When positive actions to shape offspring become feasible, couples may feel compelled to engineer offspring according to predetermined criteria of acceptability. If such practices become widespread, they could fundamentally alter our views of ourselves, our children, and human reproduction."). Professor Stock speculates that advances in technology, particularly use of genetic modification and the human auxiliary chromosome, will both induce a wide shift from conventional to laboratory conception and give humans some degree of control over our evolutionary future. See STOCK, supra note 15, at 184-85. He concludes that, while mistakes will inevitably be made along the way, "the coming opportunities in germinal choice far outweigh the risks." See id. at 200-01.
(93.) Some assert that the technology might present a reminder of this country's uncomfortable history with the past eugenics movement. See, e.g., Emily Marden & Dorothy Nelkin, Displaced Agendas: Current Regulatory Strategies for Germline Gene Therapy, 45 McGILL L.J. 461, 471 (2000). For a thorough discussion of the history of this movement, see generally Malinowski, supra note 74. However, concerns that modern and future applications of genetics may repeat the abuses of the eugenics movement are probably unjustified. See WATSON, supra note 62, at 365 (contrasting modern genetics research with the past eugenics movement which "simply had no scientific tools with which to uncover a genetic basis for the traits they studied" and were driven largely by prejudice rather than science). As for the consequences of knowledge of the genetic basis of specific traits, Dr. Watson argues:
Knowledge, even that which may unsettle us, is surely to be preferred to ignorance, however blissful in the short term the latter may be.... The tendency is to focus on the worst-case scenario and to shy away from potentially controversial science; it is time, I think, we looked instead at the benefits.
Id. at 364-65. Additionally, Professor Silver reminds:
While eugenics is practiced at the level of a state, reprogenetics[, the combination of reproductive and genetic technology,] will be practiced at the level of individuals and couples.... While the enaction of eugenics would lead to a restriction of reproductive freedom or worse, reprogenetics will do exactly the opposite. It will give people the opportunity to have children who will be healthy, happy, and loved.
Silver, supra note 58, at 652-53.
(94.) See Jordaan, supra note 18, at 597 (stating that "selection against a certain characteristic can reinforce an intolerant attitude toward people with that characteristic").
(95.) LEVAY, supra note 69, at 262. Even in the case of sex selection, while females are in no danger of being eliminated from the population, a preference for males has inflated the male to female ratio in some rural regions of India to 1.3 to 1 from the average 1.05 to 1. See SILVER, supra note 1, at 325. However, the preference for male children in India mostly results from factors that are irrelevant in more industrialized societies. Id.
(96.) LEVAY, supra note 69, at 2.
(97.) "Throughout history it has been prejudice rather than technology that has been the driving force behind attempts to 'improve' the human race," HAMER & COPELAND, supra note 75, at 205, and "the improving climate for gays and lesbians in this country ... makes the abuse of biological knowledge to oppress gay people far less likely than it was ten or twenty years ago," LEVAY, supra note 69, at 147.
(98.) See generally Robertson, supra note 87 (discussing access by the gay and lesbian community to alternative reproductive technologies).
(99.) See Robertson, supra note 6, at 467 (specifically addressing selection based on sexual orientation). But see ANDREWS, supra note 82, at 63 (2001) ("The new genetics is thought to offer new choices, but at times the mere existence of a technology contains an implicit coercion to use it" (citing Sherman Elias & George Annas, Generic Consent for Genetic Screening, 330 N. ENG. J. MED. 1611, 1613 (1994))).
(100.) See FRANKLIN & ROBERTS, supra note 16, at 150 (noting that "[e]ven with [its] rigorous procedures, however, the potential for misdiagnosis remains intrinsic to features of the testing process itself").
(101.) HAMER & COPELAND, supra note 75, at 218.
(102.) Cf. DENA S. DAVIS, GENETIC DILEMMAS: REPRODUCTIVE TECHNOLOGY, PARENTAL CHOICES, AND CHILDREN'S FUTURES 101 (2001) (addressing sex selection). The author explains, "When people go out of their way to choose, they don't want just the right chromosomes and the attendant anatomical characteristics, they want a set of characteristics that go with 'girlness' or 'boyness.'" Id. at 101. She adds, "If parents want a girl badly enough to go to all the trouble of sperm sorting and artificial insemination, they are likely to make it more difficult for the actual child to resist their expectations and follow her own bent." Id.
(103.) Stein, supra note 7. In particular, heavy regulation of use of screening in European countries may largely be a reflection of "their sensitivity over eugenic abuses of the past." STOCK, supra note 15, at 201.
(104.) Michael J. Malinowski & Radhika Rao, Legal Limitations on Genetic Research and the Commercialization of Its Results, 54 AM. J. COMP. L. 45, 60 (2006).
(105.) See SILVER, supra note 15, at 9. Professor Silver explains:
The resources required to practice reprogenetics--precision medical tools, small laboratory equipment, and simple chemicals--are all available for sale, without restriction, to anyone with the money to pay for them.... [A] reprogenetics clinic could easily be run on the scale of a small business anywhere in the world. Thus, even if restrictions on the use of reprogenetics are imposed in one country or another, those intent on delivering and receiving these services will not be restrained.
(106.) See LEVAY, supra note 69, at 263 (explaining impact on autonomy).
(107.) For a discussion of the impact of such parenting, see generally Sonia Renee Martin, Note, A Child's Right to Be Gay: Addressing the Emotional Maltreatment of Queer Youth, 48 HASTINGS L.J. 167, 167-78 (1996).
(108.) See Rosen, supra note 13.
(109.) See Surveys Find Americans Support Most Uses of Reproductive Genetic Testing, GENOMICS & GENETICS WKLY., Mar. 11, 2005, at 148 [hereinafter Surveys].
(110.) Of course, absent a prohibition on all screening, the category of traits for which screening is prohibited might be difficult to define. Cf. Holm, supra note 21, at 183 (noting that it is "very difficult to produce a non-arbitrary dividing line between severe [health] conditions and non-severe conditions"). See generally Regulating Preimplantation Genetic Diagnosis: The Pathologization Problem, 118 HARV. L. REV. 2770 (2005). Nonetheless, the discussion infra presumes a ban on testing for traits sufficiently well-defined to eliminate due process concerns for vagueness.
Additionally, because allowing access to information about the genetic profile of the preembryo while criminalizing the selection of preembryos based on such information would be practically unenforceable, this note contemplates a ban only on access to the genetic testing itself. Nor does this note discuss mere regulation of the technologies with respect to their safety, quality, and effectiveness. For discussion of this issue, see generally Douglas A. Grimm, FDA, CLIA, or a "Reasonable Combination of Both": Toward Increased Regulatory Oversight of Genetic Testing, 41 U.S.F.L. REV. 107 (2006) (discussing current limited regulation of genetic testing by the FDA and under the Clinical Laboratory Improvement Amendment (CLIA) and arguing for a unified regulatory scheme under the FDA to improve education of patients and quality of testing).
Finally, although this note does not address a ban on all prenatal testing for the same set of traits that would likely accompany the ban on preimplantation testing to discourage "tentative pregnancies," similar constitutional analysis applies to both hypothetical bans.
(111.) See, e.g., SILVER, supra note 1, at 340-41 (describing negative public reaction to a report about cytoplasmic transfer--using donor cytoplasm to repair genetic deficiencies of ovum cytoplasm to allow for creation of viable embryos--that briefly mentioned germline genetic modification). However, attitudes toward such technology may well change by the time it is developed. See id. at 347-48 (speculating that increasing public acceptance will accompany and encourage development of the technology).
(112.) E.g., Romer v. Evans, 517 U.S. 620, 632 (1996) (state constitutional amendment motivated solely by animus toward a particular class lacks rational basis).
(113.) See, e.g., Grutter v. Bolinger, 539 U.S. 306, 326-27 (2003) (program narrowly tailored to further compelling interest in diversity in education survives strict scrutiny).
(114.) See infra Part IV.A.2.
(115.) See infra Part IV.A.1.
(116.) See infra Part IV.A.2.
(117.) Griswold v. Connecticut, 381 U.S. 479, 482 (1965); see also Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955) (rational basis test).
(118.) Griswold, 381 U.S. at 485.
(119.) Id. at 484 (in "penumbras" of "emanations" from the specific guarantees).
(120.) Roe v. Wade, 410 U.S. 113, 152 (1973) (citing Stanley v. Georgia, 394 U.S. 557, 564 (1969)).
(121.) Id. (citing Terry v. Ohio, 392 U.S. l, 8-9 (1968); Katz v. United States, 389 U.S. 347, 350 (1967); Boyd v. United States, 116 U.S. 616 (1886); Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)).
(122.) Id. (citing Griswold, 381 U.S. at 486 (Goldberg, J., concurring)).
(123.) See, e.g., Lawrence v. Texas, 539 U.S. 558, 578 (2003) (holding that the "right to liberty under the Due Process Clause gives [petitioners] the full right to engage in [private, consensual sexual conduct] without the intervention of the government"); see also Roe, 410 U.S. at 152 (citing Meyer v. Nebraska, 262 U.S. 390, 399 (1923)); Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting from dismissal on procedural grounds) (explaining that the "full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution"); Griswold, 381 U.S. at 500 (Harlan, J., concurring) (stating that the "Due Process Clause of the Fourteenth Amendment stands ... on its own bottom").
(124.) See Washington v. Glucksberg, 521 U.S. 702, 722 (1997); Carey v. Population Servs. Int'l, 431 U.S. 678, 684 (1977).
(125.) Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 772 (1986), overruled on other grounds by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).
(126.) Roe, 410 U.S. at 152 (citing Loving v. Virginia, 388 U.S. 1, 12 (1967)).
(127.) Id. (citing Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942)).
(128.) Id. (citing Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972)).
(129.) Id. at 152-53 (citing Prince v. Massachusetts, 321 U.S. 158, 166 (1944)).
(130.) Id. at 153 (citing Pierce v. Soc'y of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923)).
(131.) Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (citing Rochin v. California, 342 U.S. 165 (1952)).
(132.) Id. (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)).
(133.) See id. (citing Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 241, 278-79 (1990)) (noting that the Court had "assumed and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment").
(134.) Id. at 721 (citing Reno v. Flores, 507 U.S. 292, 302 (1993); Collins v. Harker Heights, 503 U.S. 115, 125 (1992); Cruzan, 497 U.S. at 277-78).
(135.) Id. at 720-21 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977)).
(136.) Id. at 721 (quoting Palko v. Connecticut, 302 U.S. 319, 325,326 (1937)). The Court "has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Id. at 720 (quoting Collins, 503 U.S. at 125).
(137.) See Kelly M. Plummer, Comment, Ending Parents' Unlimited Power to Choose. Legislation Is Necessary to Prohibit Parents' Selection of Their Children's Sex and Characteristics, 47 ST. LOUIS U. L.J. 517, 526 (2003) (arguing that rational basis scrutiny would be appropriate); see also Robertson, supra note 6, at 454 (concluding that "[t]he originalist bias of the Court, and its reluctance to find new fundamental rights make it unlikely that five justices would find most specific uses of assisted reproduction or genetics constitutionally protected, even if direct connection with more general principles of reproductive choice could be shown"); Nancy Pham, Note, Choice v. Chance. The Constitutional Case for Regulating Human Germline Genetic Modification, 34 HASTINGS CONST. L.Q. 133, 142 (2006) (noting that "the Court has been hesitant to extend the sphere of fundamental rights, and would be even less likely to extend it to such a radically new and different technology with such far-reaching effects" (citation omitted)).
(138.) See Lawrence v. Texas, 539 U.S. 558, 566-67 (2003) (stating that Bowers Court mischaracterized interest at issue reflecting its "failure to appreciate the extent of the liberty at stake"), overruling Bowers v. Hardwick, 478 U.S. 186 (1986); Carey v. Population Servs. Int'l, 431 U.S. 678, 688 (1977) (explaining that strict scrutiny appropriate "not because there is an independent fundamental 'right of access to contraceptives,' but because such access is essential to exercise of the constitutionally protected right of decision in matters of childbearing ..."); see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 940 (1992) (Blackmun, J., concurring and dissenting) (emphasizing that the Due Process Clause protects not a "laundry list of particular rights" but rights "grounded in a more general right of privacy").
(139.) Casey, 505 U.S. at 927 (Blackmun, J., concurring and dissenting); see also M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (citing Boddie v. Connecticut, 401 U.S. 371, 376 (1971)) ("Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as 'of basic importance in our society.'"); Casey, 505 U.S. at 851 (plurality opinion) (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)) ("Our precedents 'have respected the private realm of family life which the state cannot enter.'"); Bowers v. Hardwick, 478 U.S. 186, 204 (1986) (Blackmun, J., dissenting) ("We protect those rights [associated with the family] not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual's life."); Lassiter v. Dep't of Soc. Servs. of Durham County, 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 649-50 (1972)) ("[A] parent's desire for and right to 'the companionship, care, custody, and management of his or her children' is an important interest that 'undeniably warrants deference and, absent a powerful countervailing interest, protection.'"); Roe v. Wade, 410 U.S. 113, 169 (1973) (Stewart, J., concurring) (citing Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923); Prince, 321 U.S. at 166; Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)) ("[F]reedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.").
(140.) Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989) (plurality opinion). Note that this standard was not adhered to by a majority of the Court. See id. at 132 (O'Connor, J., joined by Kennedy, J., concurring); see also Wilson Ray Huhn, The Constitutional Jurisprudence of Sandra Day O'Connor: A Refusal to "Foreclose the Unanticipated," 39 AKRON L. REV. 373, 391-92 (2006) (discussing significance of O'Connor's concurring opinion in this case).
(141.) See Robertson, supra note 59, at 427 ("[D]enying a person information about the package of burdens, benefits, and rearing responsibilities that will ensue, or denying her the ability to avoid or engage in reproduction based on that information, would affect her decision whether to reproduce at all and would interfere with her procreative liberty").
(142.) Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
(143.) This characterization itself suggests that access to the technology should be presumptively protected. Cf. Christine Overall, Selective Termination in Pregnancy and Women's Reproductive Autonomy, in ANTHOLOGY, supra note 85, at 145, 155 ("If it is unjustified to deny a woman access to an abortion of all fetuses in her uterus, then it is also unjustified to deny her access to the termination of some of those fetuses").
(144.) See Stanley v. Georgia, 394 U.S. 557, 565 (1969) (citing Martin v. City of Struthers, 319 U.S. 141 143 (1943); Griswold v. Connecticut, 381 U.S. 479, 482 (1965); Lamont v. Postmaster General, 381 U.S. 301, 307-08 (1965) (Brennan, J., concurring)).
(145.) Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 917 (1992) (Stevens, J., concurring and dissenting) (citing Bigelow v. Virginia, 421 U.S. 809 (1975)) ("[W]e have consistently rejected state efforts to prejudice a woman's choice ... by limiting the information available to her.").
(146.) See Keel v. Banach, 624 So.2d 1022 (Ala. 1993); Univ. of Ariz. Health Scis. Ctr. v. Super. Ct., 667 P.2d 1294 (Ariz. 1983); Turpin v. Sortini, 643 P.2d 954 (Cal. 1982); Linger v. Eisenbaum, 764 P.2d 1202 (Colo. 1988); Haymon v. Wilkerson, 535 A.2d 880 (D.C. 1987); Garrison v. Med. Ctr. of Del., Inc., 581 A.2d 288 (Del. 1989); Kush v. Lloyd, 616 So.2d 415 (Fla. 1992); Arche v. U.S. Dep't of Army, 798 P.2d 477 (Kan. 1990); Reed v. Campagnolo, 630 A.2d 1145 (Md. 1993); Viccaro v. Milunskry, 551 N.E.2d 8 (Mass. 1990); Greco v. United States, 893 P.2d 345 (Nev. 1995); Smith v. Cote, 513 A.2d 341 (N.H. 1986); Procanik v. Cillo, 478 A.2d 755 (N.J. 1984); Becker v. Schwartz, 386 N.E.2d 807 (N.Y. 1978); Owens v. Foote, 773 S.W.2d 911 (Tenn. 1989); Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975); Naccash v. Burger, 290 S.E.2d 825 (Va. 1982); Harbeson v. Parke-Davis, Inc., 656 P.2d 483 (Wash. 1983); James G. v. Caserta, 332 S.E.2d 872 (W. Va. 1985); Dumer v. St. Michael's Hosp., 233 N.W.2d 372 (Wis. 1975); Goldberg v. Ruskin, 471 N.E.2d 530 (Ill. 1984); Flanagan v. Williams, 623 N.E.2d 185 (Ohio Ct. App. 1993), abrogated on other grounds, Simmerer v. Dabbas, 733 N.E.2d 1169, 1174 (Ohio 2000). But see Atlanta Obstetrics & Gynecology Group v. Abelson, 398 S.E.2d 557 (Ga. 1990); Vanvooren v. Astin, 111 P.3d 125, 127-28 (Idaho 2005); Taylor v. Kurapati, 600 N.W.2d 670, 691 (Mich. Ct. App. 1999); Molloy v. Meier, 679 N.W.2d 711, 723 (Minn. 2004); Azzolino v. Dingfelder, 337 S.E.2d 528 (N.C. 1985). In a "wrongful birth" action, the parent alleges that negligence in prenatal treatment or counseling deprived them of the opportunity to decide whether to avoid conception or terminate pregnancy based on the likelihood that the child would be born mentally or physically impaired. See Procanik, 478 A.2d at 760. At least one state has recognized an action for wrongful conception, though not for wrongful birth. See Molloy, 679 N.W.2d at 723.
(147.) See, e.g., Surveys, supra note 109.
(148.) See id. (finding that while "[m]ost Americans ... believe it would be wrong to use genetic testing to select the sex or other non-health related, genetic characteristics of a child," "70% of survey respondents also are 'concerned about government regulators invading private reproductive decisions,'" and "only 38% support the idea of the government regulating PGD based on ethics and morality").
(149.) See, e.g., Stein, supra note 7. Indeed, the relative absence of regulation of selection technology is common to alternative reproductive technologies generally. Malinowski & Rao, supra note 104, at 60. Contrast this absence of regulation with the long history of regulation found in Washington v. Glucksberg, 521 U.S. 702, 723 (1997) (noting the "consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults").
(150.) See ROBERTSON, supra note 50, at 166 ("[I]f not determinative of the decision whether to reproduce, prenatal enhancement would not fall within the core interests protected by procreative liberty"); see also discussion supra pp. 355-57. Professor Robertson cautions, though, that "[a]t a certain point ... a practice such as ... enhancement ... of offspring may be so far removed from even pluralistic notions of reproductive meaning that they leave the realm of protected reproductive choice." ROBERTSON, supra note 50, at 41.
(151.) See ROBERTSON, supra note 50, at 166.
(152.) See John Harris, Rights and Reproductive Choice, in THE FUTURE OF HUMAN REPRODUCTION, supra note 21, at 5, 23 (John Harris & Soren Holm eds. 1998) ("We should remember that the traditional way of producing children, namely by selecting marriage (or less formally selected procreational) partner, is very often governed by prejudices or preferences, not only for a particular sort of partner, but for the particular sort of child that mating with that partner will produce."). Recall that, while the Court addressed only marriage in its due process analysis, the anti-miscegenation statutes struck down in Loving v. Virginia, 388 U.S. 1 (1967), invaded the protected sphere of privacy just as surely in its procreative aspect as in its purely associational aspect. See Katrina C. Rose, The Gay Gene: The Key to Dismantling Laws Which Criminalize Consensual Sexual Activity or the Precursor to a New Wave of Good Ol' All-American Eugenics?, 3 J.L. & SOC. CHALLENGES 57, 76-78 (1999) (explaining that many cases upholding such statutes expressed concern for the "genetic implication of allowing different races to marry one another").
(153.) See discussion supra pp. 355-57.
(154.) See SILVER, supra note 1, at 347-48 ("Almost certainly, at some point, a combination of scientific knowledge, technology, reduced risks, increased benefits, and societal acquiescence will cross a threshold, allowing human genetic engineering to proceed" (emphasis added)).
(155.) Cf. Lawrence v. Texas, 539 U.S. 558, 566-67 (2003) (stating that Bowers Court mischaracterized interest at issue reflecting its "failure to appreciate the extent of the liberty at stake"), overruling Bowers v. Hardwick, 478 U.S. 186 (1986) (characterizing interest as one long subject to state prohibition).
(156.) E.g., Troxel v. Granville, 530 U.S. 57, 65 (2000) ("The liberty interest at issue in this case--the interest of parents in the care, custody, and control of their children--is perhaps the oldest of the fundamental liberty interests recognized by this Court.").
(157.) See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 848 (1992) ("Neither the Bill of Rights nor the specific practices of States at the time of adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.").
(158.) Cf. ROBERTSON, supra note 50, at 153 ("[I]f the claim is that positive selection actions are not part of protected procreative liberty because they will ultimately harm offspring, the argument confuses the existence of a presumptive right to control offspring traits with whether the effects of control are so harmful that such a right can be justly limited.").
(159.) See Carey v. Population Servs. Int'l, 431 U.S. 678, 686 (1977) (citing Roe v. Wade, 410 U.S. 113, 155-56 (1973)) (applying strict scrutiny for regulation of contraceptives); see also Casey, 505 U.S. at 852 (stating that the Court had "no doubt as to the correctness" of Griswold and Carey).
(160.) Gonzales v. Carhart, 127 S. Ct. 1610, 1633 (2007). But see id. at 1641 (Ginsburg, J., dissenting) (pointing out that "[i]nstead of the heightened scrutiny we have previously applied, the Court determines that a 'rational' ground is enough to uphold the Act").
(161.) Casey, 505 U.S. at 846.
(162.) Carhart, 127 S. Ct. at 1633 (majority opinion).
(163.) See Casey, 505 U.S. at 932 (Blackmun, J., concurring and dissenting).
(164.) See generally SILVER, supra note 15, at 43-44, 58-62 (describing this process); SUSAN TUCKER BLACKBURN & DONNA LEE LOPER, MATERNAL, FETAL, AND NEONATAL PHYSIOLOGY: A CLINICAL PERSPECTIVE 40-45 (1992) (same).
(165.) See Gwendolyn Prothro, RU 486 Examined: Impact of a New Technology on an Old Contoversy, 30 U. MICH. J.L. REFORM 715, 719 (1997) (indicating that the Court has not addressed this "'grey' period"). Prothro argues for a "unified continuum approach to reproductive control." Id. at 741. This note, however, presumes that the Court will maintain a bright line between the two established levels of scrutiny mirroring that drawn, albeit for other reasons, at viability. See, e.g., Casey, 505 U.S. at 846 (plurality opinion) (addressing permissibility of state regulations before and after viability).
(166.) Indeed, even fertilization is a process rather than a single moment. See Prothro, supra note 165, at 717.
(167.) See Carhart, 127 S. Ct. at 1633. Specifically, the Court stated, "Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including the life of the unborn." Id. (emphasis added). In fact, the Court repeatedly stressed the availability of a substitute procedure for previability abortions and its relevance to the Court's decision that the legislation did not constitute an undue burden. Id. at 1637-38. However, neither hypothetical ban addressed in this note bars conception either conventionally or through IVF, and so very few individuals would be entirely left without procreational options.
(168.) 505 U.S. at 874 (citing Hodgson v. Minnesota, 497 U.S. 417, 458-59 (1990) (O'Connor, J., concurring); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 519-20 (1990); Webster v. Reprod. Health Servs., 492 U.S. 490, 530 (1989) (O'Connor, J., concurring); Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 828 (1986) (O'Connor, J., dissenting); Simopoulos v. Virginia, 462 U.S. 506, 520 (1983) (O'Connor, J., concurring); Planned Parenthood Ass'n of Kan. City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 505 (1983) (O'Connor, J., concurring and dissenting); Ohio v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 464 (1983) (O'Connor, J., dissenting); Bellotti v. Baird, 428 U.S. 132, 147 (1976)).
(169.) Id. at 877 (emphasis added).
(170.) Indeed, the vast majority of prospective parents still do not conceive through IVF, except as a last resort. See STOCK, supra note 15, at 54.
(171.) 505 U.S. at 894.
(173.) Id. at 895 (emphasis added).
(174.) The "large fraction" test might not be appropriate. See Gonzales v. Carhart, 127 S. Ct. 1610, 1639 (2007) (comparing Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 514 (1990) ("must show that no set of circumstances exists under which the Act would be valid"), with Casey, 505 U.S. at 895 ("large fraction" test)). Nonetheless, imposition of a stricter burden would yield an identical result.
(175.) Webster v. Reproductive Health Servs., 492 U.S. 490, 523 (1989) (O'Connor, J., concurring) ("It may be correct that the use of postfertilization contraceptive devices is constitutionally protected by Griswold and its progeny ..."); id. at 541 (Blackmun, J., concurring and dissenting) ("[B]ecause the preamble [of the Missouri statute] defines fetal life as beginning upon 'the fertilization of the ovum of a female by a sperm of a male,'... the provision also unconstitutionally burdens the use of contraceptive devices, such as the IUD and the 'morning after' pill, which may operate to prevent pregnancy only after conception as defined in the statute." (quoting Mo. Rev. Stat. [section] 188.015(3) (1986))); id. at 564 (Stevens, J., concurring and dissenting) (citing Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Carey v. Population Servs. Int'l, 431 U.S. 678 (1977)) (concluding that "[t]o the extent that the Missouri statute interferes with contraceptive choices [such as IUD and the morning after pill], I have no doubt that it is unconstitutional"). Another opinion from Justice Stevens implies that the moment might be prior to the completion of implantation, see Benton v. Kessler, 505 U.S. 1084, 1085 (1992) (dissenting from denial of motion to vacate stay) (invoking undue burden test in context of seizure of RU-486), because the medication in question, mifepristone, is effective both before and after that moment, either in preventing implantation altogether or terminating pregnancy afterward, Prothro, supra note 165, at 716. However, note that, in Benton, the Court explicitly stated that the drug was to be used "to induce a nonsurgical abortion." 505 U.S. at 1084 (per curiam opinion).
(176.) Prothro, supra note 165, at 717 (citing Committee on Terminology of the American College of Obstetricians and Gynecologists, Obstetric-Gynecologic Terminology 299, 327 (1972)).
(177.) Carhart, 127 S. Ct. at 1633.
(178.) SILVER, supra note 15, at 62.
(179.) Id. at 63.
(180.) See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 929 (1992) (Blackmun, J., concurring and dissenting).
(181.) Roe v. Wade, 410 U.S. 113, 155 (1973) (citing Kramer v. Union Free School District, 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 634 (1969); Sherbert v. Verner, 374 U.S. 398, 406 (1963)).
(182.) Id. (citing Griswold v. Connecticut, 381 U.S. 479, 485 (1965); Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-08 (1940); Eisenstadt v. Baird, 405 U.S. 438, 460, 463-64 (1972) (White, J., concurring)).
(183.) See id. at 162.
(184.) Casey, 505 U.S. at 914-15 (Stevens, J., concurring and dissenting).
(185.) Roe, 410 U.S. at 163.
(186.) Gonzales v. Carhart, 127 S. Ct. 1610, 1633 (2007) (quoting Washington v. Glucksberg, 521 U.S. 702, 731 (1997)).
(187.) Id. at 1632.
(188.) See Stenberg v. Carhart (Stenberg), 530 U.S. 914, 961 (2000) (Kennedy, J., dissenting) ("States also have an interest in forbidding medical procedures which, in the State's reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life of the human fetus.").
(189.) Roe, 410 U.S. at 163.
(190.) See Carhart, 127 S. Ct. at 1633.
(191.) ROBERTSON, supra note 50, at 162; Amber Stine, Note, The Implications of the Due Process Clause on the Future of Human Embryonic Gene Therapy, 45 ARIZ. L. REV. 507, 525-26 (2003).
(192.) See Brooke McConnell, Quality Control: The Implications of Negative Genetic Selection and Pre-Birth Genetic Enhancement, 15 UCLA WOMEN'S L.J. 47, 69-70 (2006) (citing Maxwell Mehlman, How Will We Regulate Genetic Enhancement?, 34 WAKE FOREST L. REV. 671, 688 (1999)).
(193.) Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 927 (1992) (Blackmun, J., concurring and dissenting) (citing Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)) (upholding the "principle that personal decisions that profoundly affect bodily integrity, identity, and destiny should be largely beyond the reach of government"); Bowers v. Hardwick, 478 U.S. 186, 205 (1986) (Blackmun, J., dissenting) (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 619 (1984)) (recognizing that the "ability independently to define one's identity that is central to any concept of liberty"). In fact, particularly with regard to sexual orientation, Justice Blackmun wrote, "Only the most willful blindness could obscure the fact that sexual intimacy is 'a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality.'" Bowers, 478 U.S. at 205 (citing Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973); Carey v. Population Servs. Int'l, 431 U.S. 678, 685 (1977)).
(194.) See generally Karolyn Ann Hicks, Comment, "'Reparative" Therapy: Whether Parental Attempts to Change a Child's Sexual Orientation Can Legally Constitute Child Abuse, 49 AM. U.L. REV. 535-38 (1999).
(195.) Roe v. Wade, 410 U.S. 113, 161 (1973).
(196.) Pham, supra note 137, at 150.
(197.) Bowers v. Hardwick, 478 U.S. 186, 205-06 (1986) (Blackmun, J., dissenting).
Louis Paonessa, J.D. candidate, May 2007, Rutgers School of Law--Newark; B.S. Mathematics, Georgetown University, 2003. I would like to thank Dr. Thomas E. Wilhelm, Ph.D., for his patience as I revised ... and revised ... and, well, revised this note.
|Printer friendly Cite/link Email Feedback|
|Publication:||Rutgers Computer & Technology Law Journal|
|Date:||Jun 22, 2007|
|Previous Article:||Robin Hood versus the bullies: software piracy and developing countries.|
|Next Article:||Thirty-ninth selected bibliography on computers, technology, and the law: (January 2006 through December 2006).|
|Searching for that perfect pair of genes.|
|Higher level of embryo testing raises questions about possibility of creating "designer babies".|