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Procreative Liberty in the Era of Genomics

Published online by Cambridge University Press:  06 January 2021

John A. Robertson
John A. Robertson*
Affiliation:
University of Texas School of Law
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Extract

Twentieth century biology began with the rediscovery of Gregor Mendel's work on peas and ended with the sequencing of the human genome. In between came Thomas Morgan's studies of fruit flies, the grand synthesis between genetics and evolutionary biology in the 1930s, and Watson and Crick's publication in 1953 of the double helix structure of deoxyribose nucleic acid (“DNA”), the substance in the nucleus of cells, which carries the genetic code of all eukaryotic life.

The genetics of the second half of the century focused on learning how DNA coded for proteins, how to splice, clone, and recombine pieces of DNA, and how genetic mutations caused disease. In the late 1980s, a project to identify the actual sequence of all 3.2 billion base pairs of the human genome began. In June 1999, President Clinton and Prime Minister Blair announced that a working draft of the human genome was complete, with the final completed draft to 99.9% accuracy expected in May 2003, fifty years after the publication of Watson and Crick's landmark paper.

Type
Research Article
Information
American Journal of Law & Medicine , Volume 29 , Issue 4 , December 2003 , pp. 439 - 487
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2003

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References

1 Watson, James & Crick, Francis, A Structure for Deoxyribose Nucleic Acid, 171 NATURE 737 (1953)CrossRefGoogle ScholarPubMed. For the best history of these events, see HORACE FREELAND JUDSON, THE EIGHTH DAY OF CREATION (1996). See also KEVIN DAVIES, CRACKING THE GENOME: INSIDE THE RACE TO UNLOCK HUMAN DNA (2001).

2 Nicholas Wade, Reading the Book of Life: The Overview; Genetic Code of Human Life Is Cracked by Scientists, N.Y. TIMES, June 27, 2000, at A1.

3 Nicholas Wade, Scientists Complete Rough Draft of Human Genome, N.Y. TIMES, June 27, 2000, at A1.

4 The term “geneticization,” coined pejoratively by Abby Lippman, is meant as a criticism or warning of the grave risks that come with increased reliance on genetics in human activities. Lippman, Abby, Prenatal Genetic Testing and Screening: Constructing Needs and Reinforcing Inequities, 17 AM. J.L. & MED. 15, 18-19 (1991)Google ScholarPubMed. But “geneticization” will not be sought unless it also brings benefits.

5 Mauron, Alex, Is the Genome the Secular Equivalent of the Soul?, 291 SCIENCE 831 (2001)CrossRefGoogle ScholarPubMed; GREGORY STOCK, REDESIGNING HUMANS: OUR INEVITABLE GENETIC FUTURE (2002); ROGER GOSDEN, DESIGNING BABIES: THE BRAVE NEW WORLD OF REPRODUCTIVE TECHNOLOGY (1999).

6 “Pharmacogenomics is the study of how an individual's genetic inheritance affects the body's response to drugs. The term comes from the words pharmacology and genomics, and is thus the intersection of pharmaceuticals and genetics.” U.S. DEP’T. OF ENERGY, HUMAN GENOME PROJECT INFORMATION, PHARMACOGENOMICS, at http://www.ornl.gov/TechResources/Human_Genome/medicine/pharma.html (last modified Oct. 29, 2003).

7 David W. Feigal & Steven I. Gutman, Drug Development, Regulation, and Genetically Guided Therapy, in PHARMACOGENOMICS: SOCIAL, ETHICAL, & CLINICAL DIMENSIONS 99, 100-01 (Mark A. Rothstein ed., 2003).

8 Collins, Francis S., Shattuck Lecture—Medical and Societal Consequences of the Human Genome Project, 341 NEW ENG. J. MED. 28 (1999)CrossRefGoogle ScholarPubMed.

9 PAT SPALLONE, GENERATION GAMES: GENETIC ENGINEERING AND THE FUTURE FOR OUR LIVES 28-29 (1992).

10 PHILLIP P. REILLY, THE SURGICAL SOLUTION: A HISTORY OF INVOLUNTARY STERILIZATION IN THE UNITED STATES 94 (1991). As the noted geneticist J.B.S. Haldane observed, ”… many of the deeds done in America in the name of eugenics are about as much justified by science as were the proceedings of the Inquisition by the gospels.” J.B.S. HALDANE, POSSIBLE WORLDS AND OTHER ESSAYS 144 (1930).

11 REILLY, supra note 10, at 106.

12 Gina Kolata, With Cloning of Sheep, the Ethical Ground Shifts, N.Y. TIMES, Feb. 24, 1997, at A1.

13 PRESIDENT's COUNCIL ON BIOETHICS, HUMAN CLONING AND HUMAN DIGNITY 110-11 (2002) [hereinafter CLONING REPORT].

14 Leon R. Kass, “Making Babies” Revisited, in THE PUBLIC INTEREST 32 (1979); Leon R. Kass, Making Babies–the New Biology and the “Old” Morality, in THE PUBLIC INTEREST 18 (1972).

15 CLONING REPORT, supra note 13, at XIII.

16 Id. at 9.

17 Id.

18 Id. at 117.

19 The report's mechanistic view of reproductive technology comes out most clearly in its discussion of cloning. It describes cloning as “control of the entire genotype and the production of children to selected specifications.” Id. at 118. Cloning is different from in vitro fertilization (“IVF”) because “the process begins with a very specific final product in mind and would be tailored to produce that product.” Id. at 119. It goes on to note that “the resulting children would be products of a designed manufacturing process, products over whom we might think it proper to exercise ‘quality control.’” Id. Using such techniques would teach us “to receive the next generation less with gratitude and surprise than with control and mastery.” Id. One possible result would be “the industrialization and commercialization of human reproduction,” a clearly dehumanizing force. Id. Much of this article is a refutation of those claims.

20 The report never addresses the extent to which parents through education, religion, medical treatments, and other interventions shape the child. This is deemed acceptable, and within parental freedom while any “shaping” of the child beforehand is inconsistent with the “dignity” of human reproduction. For further discussion of this point, see infra notes 184-85 and accompanying text.

21 CLONING REPORT, supra note 13, at 92.

22 Id. at 93. It is unclear, of course, whether the report is actually as extreme as it appears to be, since one could be against “any” method without being against “all” methods. The sentences following that quote are also open to a more narrow understanding, but the report gives no indication or basis for choosing a narrow or broad view. Indeed, it suggests that any use of selection risks violating the gift perspective, which it asserts is essential to human reproduction.

23 The question of what results count as harm to offspring raises a complicated philosophical problem that is discussed at greater length in the Appendix.

24 “Techne” means “[t]he principles or methods employed in making something.” Webster's Third New International Dictionary 2348 (Philip Babcock Gove ed., 3d ed. 1986).

25 The view that any interference with nature is unnatural is ultimately untenable because it would deny use of medicine, heating, transportation, agriculture, etc. They all interfere with nature in some respect. At the same time, they may all be viewed as part of nature, because nature selected for the cognitive capacities that allow human control and manipulation of nature to occur.

26 See, e.g., Attanasio, John B., The Constitutionality of Regulating Human Genetic Engineering: Where Procreative Liberty and Equal Opportunity Collide, 53 U. CHI. L. REV. 1274, 1285-86 (1986)CrossRefGoogle ScholarPubMed.

27 See JOHN A. ROBERTSON, CHILDREN OF CHOICE: FREEDOM AND THE NEW REPRODUCTIVE TECHNOLOGIES (1994).

28 Raelian Leader Says Cloning First Step to Immortality, at http://www.cnn.com/2002/HEALTH/12/27/human.cloning (Dec. 28, 2002).

29 NAT’L ACAD. OF SCIENCES, Scientific and Medical Aspects of Human Reproductive Cloning, in THE IMPACT OF FEDERAL POLICY ON REALIZING THE POTENTIAL OF STEM CELL RESEARCH: INFORMATIONAL HEARING OF THE SENATE HEALTH AND HUMAN SERVICES COMMITTEE, 35 (2002).

30 STOCK, supra note 5; LEE M. SILVER, REMAKING EDEN: CLONING AND BEYOND IN A BRAVE NEW WORLD (1997).

31 Other bioethicists also often understand claims about procreative liberty to be those of the radical libertarian, rather than those of the more nuanced modern traditionalist view. See Murray, Thomas H., What Are Families For?: Getting to an Ethics of Reproductive Technology, 32 HASTINGS CENTER REP. 41 (2002)CrossRefGoogle Scholar; Towner, Dena & Loewy, Roberta Springer, Ethics of Preimplantation Diagnosis for a Woman Destined to Develop Early-Onset Alzheimer Disease, 287 JAMA 1038, 1038-40 (2002)CrossRefGoogle ScholarPubMed (challenging perceived discursive prominence of radical libertarian viewpoints and advocating for a nuanced approach).

32 See Daar, Judith F., The Prospect of Human Cloning: Improving Nature or Dooming the Species?, 33 Seton Hall L. Rev. 511, 526-30 (2003)Google ScholarPubMed. See also Sherwood, Skylar A., Note, Don't Hate Me Because I’m Beautiful … and Intelligent … and Athletic: Constitutional Issues in Genetic Enhancement and the Appropriate Legal Analysis, 11 HEALTH MATRIX 633, 638-46 (2001)Google Scholar.

33 The opposing views are mirror images of each other. Curiously, each accepts a strongly reductionist or deterministic role for genes and human manipulation of genomes. One view finds this to be good, even utopian, while the other sees a dystopian evil.

34 JOHN STUART MILL, ON LIBERTY 30 (John Gray & G.W. Smith eds., 1991) (stating that the harm principle holds “[t]hat the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”).

35 See NATIONAL BIOETHICS ADVISORY COMMISSION, CLONING HUMAN BEINGS: REPORT AND RECOMMENDATIONS OF THE NATIONAL BIOETHICS ADVISORY COMMISSION 95 (1997) [hereinafter NBAC REPORT]; Ryan, Maura A., Cloning, Genetic Engineering, and the Limits of Procreative Liberty, 32 VAL. U. L. REV. 753, 754 (1998)Google ScholarPubMed.

36 For example, there is a question whether harm can occur to offspring from the use of technologies that make their birth possible. See discussion infra Appendix.

37 A person has a liberty-right if she would violate no moral duty by engaging in an action or omission. A claim-right adds the additional ingredient that other persons have a moral duty not to interfere with her exercise of liberty. See RICHARD FLATHMAN, THE PRACTICE OF RIGHTS 33-63 (1976). It is generally understood that the great personal importance of procreative liberty makes it a claim-right against state or private interference with its exercise. JOHN A. ROBERTSON, CHILDREN OF CHOICE: FREEDOM AND THE NEW REPRODUCTIVE TECHNOLOGIES 35-38 (1994). As will be discussed below, procreative liberty may also have constitutional status as a fundamental right. If so, procreative liberty would be presumptively protected against state action unless there were compelling reasons for restricting it.

38 Whether described as one or two rights, each is independently justified and “stands on its own bottom,” to paraphrase Justice Harlan's comments about privacy in Griswold v. Connecticut, 381 U. S. 479, 499 (1965) (Harlan, J., concurring). Although each comes into play by foregoing or waiving the other, the reasons for protecting each aspect are separate—the one in avoiding the burdens of reproduction, the other in avoiding the burdens of not being able to reproduce.

39 Persons are thus free to reject genetic screening or modification, even if doing so leads to a child born with a congenital handicap. While physicians have ethical and legal duties to inform women of the availability of carrier and prenatal tests, no state has placed a legal duty on parents to be tested or to avoid the birth of such children. Such requirements would presumably be unconstitutional despite the fact that Buck v. Bell has not yet been officially overruled. See Robertson, John A., Genetic Selection of Offspring Characteristics, 76 B.U. L. REV. 421, 468–74 (1996)Google ScholarPubMed.

40 Thus, allowing one category of uses does not mean that every person in a similar reproductive situation will use that technology.

41 Towner & Loewy, supra note 31, at 1038-40.

42 Severe overpopulation might justify restrictions on the number of children, while severe underpopulation might make limiting access to contraceptives acceptable. However, much more would need to be known about societal circumstances and the efficacy of alternative measures to adequately assess the legitimacy of such restrictions.

43 A more robust theory of procreative liberty might argue that any preference concerning how reproduction occurs or the characteristics of its results should be protected. In this article, I address only the situation of when use of a technique is material or essential to the reproductive choice and not a mere preference that is not itself determinative of whether a choice to reproduce or not would otherwise occur. For further discussion of this methodology, see Robertson, supra note 39, at 429-32.

44 Id. at 432-40.

45 Although reproduction is often sought for the experience of rearing, it is not essential in all cases that rearing also be sought or occur. The liberty-right not to reproduce protects the right not to have children and the rearing duties which they ordinarily entail.

46 Karen Lebacqz confuses my support for community conceptions of the importance of having offspring as support for communitarian views of the acceptability of means to achieve that goal. Nor, as she asserts, are community conceptions of when a reproductive activity reasonably advances or ill-serves those goals “symbolic.” See Karen Lebacqz, Choosing Our Children: The Uneasy Alliance of Law and Ethics in John Robertson's Thought, in PRINCETON FORUM ON BIOETHICS (2003) (on file with AM. J.L. & MED.).

47 See discussion infra notes 149-52 and accompanying text, notes 189-95 and accompanying text, and Appendix.

48 In sexual reproduction, each procreator contributes a haploid chromosome that combine in humans to form 46 chromosomes.

49 William Shakespeare, Sonnet 12, in THE OXFORD SHAKESPEARE: THE COMPLETE WORKS OF WILLIAM SHAKESPEARE (W.J. Craig ed., 1922).

50 For example, see the controversy that erupted around the issuance of “Baby Doe Rules” that aimed to protect all newborns regardless of their handicaps. Bowen v. Am. Hosp. Ass’n, 476 U.S. 610 (1986); Clark, Frank I., Withdrawal of Life-Support in the Newborn: Whose Baby Is It?, 23 SW. U. L. REV. 1 (1993)Google Scholar; Rhoden, Nancy, Treatment Dilemmas for Imperiled Newborns: Why Quality of Life Counts, 58 S. CAL. L. REV. 1283 (1985)Google ScholarPubMed.

51 RICHARD DAWKINS, THE SELFISH GENE (1976); GEORGE C. WILLIAMS, ADAPTATION AND NATURAL SELECTION: A CRITIQUE OF SOME CURRENT EVOLUTIONARY THOUGHT (1966).

52 JOHN TYLER BONNER, THE EVOLUTION OF CULTURE IN ANIMALS 77-92 (1980).

53 MARLENE ZUK, SEXUAL SELECTIONS: WHAT WE CAN AND CAN't LEARN ABOUT SEX FROM ANIMALS (2002). Hence the importance of abortion and contraceptive rights for women, who face much greater physical burdens than men in reproduction. See SARAH BLAFFER HRDY, MOTHER NATURE: MATERNAL INSTINCTS AND HOW THEY SHAPE THE HUMAN SPECIES (2000).

54 See Robert L. Trivers, Parental Investment and Sexual Selection, in SEXUAL SELECTION AND THE DESCENT OF MAN (Bernard G. Campbell ed., 1972); ZUK, supra note 53.

55 Larry Arnhart, Human Nature is Here to Stay, NEW ATLANTIS (Summer 2003), available at http://www.thenewatlantis.com/archive/2/arnhart.htm.

56 See Cunningham, Bradley E., Implications of FDA Approval of RU-486: Regulating Mifepristone Within the Bonds of the Constitution, 90 KY. L.J. 229, 238-39 (2001-2002)Google Scholar (discussing the historical debate in the United States over contraception and abortion).

57 See Goldberg, Stephanie B., The Second Woman Justice: Ruth Bader Ginsburg Talks Candidly About a Changing Society, 79 A.B.A. J. 40, 40, 42 (1993)Google Scholar.

58 381 U.S. 479 (1965).

59 405 U.S. 438 (1972).

60 410 U.S. 113 (1973).

61 505 U.S. 833 (1992).

62 See Green, Richard, Griswold's Legacy: Fornication and Adultery as Crimes, 16 OHIO N.U. L. REV. 545 (1989)Google Scholar.

63 See People v. Bright, 238 P. 71, 73 (Colo. 1925); Brazener, Robert A., Annotation, Validity of Statute Making Adultery and Fornication Criminal Offenses, 41 A.L.R. 3d 1338 (1972)Google Scholar; Siegel, Martin J., For Better or for Worse: Adultery, Crime & the Constitution, 30 J. FAM. L. 45 (1991/1992)Google Scholar.

64 Lawrence v. Texas, 123 S. Ct. 2472, 2483 (2003).

65 274 U.S. 200 (1927). Buck v. Bell has never been overruled.

66 316 U.S. 535, 541 (1942). Technically, the Court found an equal protection violation in the categories drawn by the state to require sterilization of some property offenders but not others, thus leaving open the possibility that sterilizing all property offenders would be acceptable. Given that Skinner is now cited for its dicta about the right to procreate as a “basic civil right of man,” requiring sterilization of convicted offenders under any circumstances is not likely to be upheld.

67 ROBERTSON, supra note 27, at 35-38. See Gerber v. Hickman, 291 F.3d 617 (9th Cir. 2002) (en banc) (holding that prison inmate has no right to provide sperm to his wife for artificial insemination outside the prison). See also Goodwin v. Turner, 908 F.2d 1395 (8th Cir. 1990).

68 524 U.S. 624 (1998). Although not a constitutional decision, Bragdon recognizes that the ability to have healthy offspring is a major life activity, the loss of which constitutes a disability within the meaning of the Americans with Disabilities Act.

69 A closer analysis of each reproductive variation will be necessary to determine whether it falls within a constitutionally protected right to procreate. Strictly speaking, the gametically infertile person who consents to gamete donation to his or her spouse is not reproducing, though their spouse is reproducing, as is the donor. By contrast, in gestational surrogacy the couple who has provided the gametes for embryos would be reproducing, but the gestating woman who has provided no genetic contribution will not be. If the surrogate provides the egg as well, she also would be reproducing, but the wife of the engaging couple will not.

70 For the reluctance of many justices to find new specific rights from general principles of liberty, see Bowers v. Hardwick, 478 U.S. 186 (1986), in which Justice White wrote for the majority that a claim that the right to engage in sodomy was “‘deeply rooted in this Nation's history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.” Justice Blackmun, in dissent, argued that past cases stood for a larger principle–the right of personal intimacy, which would include autonomy in sexual matters. For further discussion of tradition and the level of generality of substantive due process rights, see the dueling opinions of Justices Scalia and Brennan in Michael H. v. Gerald D., 491 U.S. 110 (1989), and Tribe, Laurence & Dorf, Michael, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057 (1990)CrossRefGoogle Scholar.

71 123 S.Ct. 2472, 2481-83 (2003).

72 E.g., Loving v. Virginia, 388 U.S. 1 (1967); Turner v. Safley, 482 U.S. 78 (1987).

73 Such a case might arise if a state banned IVF treatment of infertility, artificial insemination, egg donation, or gestational surrogacy. See Robertson, John A., Embryos, Families, and Procreative Liberty: The Legal Structure of the New Reproduction, 59 S. CAL. L. REV. 939, 959-61 (1986)Google ScholarPubMed. A plausible argument for extending constitutional protection to reproductive cloning for gametic infertility can also be articulated. See Robertson, John A., Liberty, Identity, and Human Cloning, 76 TEX. L. REV. 1371, 1387-1403 (1998)Google ScholarPubMed [hereinafter Robertson, Liberty, Identity, and Human Cloning].

74 Other applications of current interest and debate, such as using reproductive technology to expand reproductive age, to enable reproduction to occur after death, or to obtain cells or tissue for research or therapy, are not discussed here because they are less directly implicated in choices about offspring genes.

75 Mendelian diseases are “the result of a single mutant gene that has a large effect on phenotype and that are inherited in simple patterns similar to or identical with those described by Mendel for certain discrete characteristics in garden peas.” THOMAS D. GELEHRTER ET AL., PRINCIPLES OF MEDICAL GENETICS 4 (2d ed. 1998).

76 Robertson, Liberty, Identity, and Human Cloning, supra note 73, at 1407.

77 See Elsas, Lois J. II, Medical Genetics: Present and Future Benefits, 49 EMORY L.J. 801, 814-15 (2000)Google ScholarPubMed.

78 Andrews, Lori B., Prenatal Screening and the Culture of Motherhood, 47 HASTINGS L.J. 967, 969-72 (1996)Google ScholarPubMed.

79 See Li, Frederick P. et al., Recommendations on Predictive Testing for Germ Line p53 Mutations Among Cancer-Prone Individuals, 84 J. NAT’L CANCER INST. 1156 (1992)CrossRefGoogle ScholarPubMed, available at http://www.nci.nih.gov/cancerinfo/genetics/predictive-testing-p53-mutations.

80 Robertson, supra note 39, at 433.

81 Grody, Wayne W., Molecular Genetic Risk Screening, 54 ANN. REV. MED. 473, 486 (2003)CrossRefGoogle ScholarPubMed.

82 There is an extensive literature on this topic. For a recent popular presentation, see Bill Keller, Charlie's Ghost: Perfect Babies and Imperfect Choices, N.Y. TIMES, June 29, 2002, at A15.

83 Robertson, supra note 39, at 432-33.

84 However, once such children are born, evolutionary or culturally instilled notions of doing everything possible for one's children kick-in, despite the drain on private or public resources.

85 See Robertson, supra note 39, at 444-46.

86 Field, Martha A., Killing “The Handicapped”—Before and After Birth, 16 HARV. WOMEN's L.J. 79, 123-24 (1993)Google ScholarPubMed; Parens, Erik & Asch, Adrienne, The Disabilities Rights Critique of Prenatal Genetic Testing: Reflections and Recommendations, 29 HASTINGS CENTER REP. S1 (1999)CrossRefGoogle ScholarPubMed.

87 Field, supra note 86, at 123. Whether insurance companies should be free to require parents to avoid such births or pay higher premiums is another matter.

88 See THOMAS HOBBES, LEVIATHAN 89 (Richard Tuck ed., 1991). See also Robertson, supra note 39, at 471 (“The purpose of genetic screening is to identify at-risk couples so that they may either avoid reproduction or have offspring only after they have screened embryos and pregnancies to prevent the birth of children with disabilities.”).

89 See discussion infra Appendix.

90 A Canadian study showed that increases in prenatal diagnosis and pregnancy termination for congenital anomalies are related to decreases in overall infant mortality. Liu, Shiliang et al., Relationship of Prenatal Diagnosis and Pregnancy Termination to Overall Infant Mortality in Canada, 287 JAMA 1561 (2002)CrossRefGoogle ScholarPubMed. A charge of eugenics would carry more weight if there were legal duties to be tested and then to exclude embryos and fetuses when tests were positive. A person's right to reproduce and right to bodily integrity would protect against requiring persons to use genetic tests or otherwise avoid the birth of children with genetic disease or anomalies. See Field, supra note 86, at 123-24.

91 “It's all about signaling, of course—the antic/Blue of the booby's feet; the lacewing's knock;/Deep in the reeds, the lowdown bullfrog's steady/Present, present, even at the risk that the call/Will materialize not a mate but an owl;/The coded fireflies’ cool-burning Ready, ready;/The trailing plumes of the angelfish and the peacock… .” BRAD LEITHAUSER, DARLINGTON's FALL: A NOVEL IN VERSE 85 (2002).

92 See ALLEN BUCHANAN ET AL., FROM CHANCE TO CHOICE: GENETICS AND JUSTICE 222-57 (2000); Coleman, Carl H., Conceiving Harm: Disability Discrimination in Assisted Reproductive Technologies, 50 UCLA L. REV. 17 (2002)Google ScholarPubMed.

93 See discussion infra notes 149-52, 189-95 and accompanying text. In those cases, the reproductive connections are much more attenuated than with selection for health and the risk of untoward social effects is much greater.

94 For problems with appeals to slippery slopes or the precautionary principle as reasons for not using new technologies, see ROBERTSON, supra note 27, at 163-64, and Harris, John & Holm, Soren, Extending Human Lifespan and Precautionary Paradox, 27 J. MED. & PHIL. 355 (2002)CrossRefGoogle ScholarPubMed.

95 See STOCK, supra note 5, at 62-63; Botkin, Jeffrey R., Prenatal Diagnosis and the Selection of Children, 30 FLA. ST. U. L. REV. 265, 282-83 (2003)Google ScholarPubMed (suggesting that complex, polygenic traits are further influenced by other genes, environment, development, and random variations).

96 Sandra Blakeslee, A Pregnant Mother's Diet May Turn the Genes Around, N.Y. TIMES, Oct. 7, 2003, at D1 (reporting that diet affects the genes in mice that determine coat color).

97 Investment in research to uncover genes for non-medical traits is unlikely to be forthcoming from public sources because of the lack of medical payoff. Private investors may or may not support such research.

98 However, such decisions are often made; sex selection abortions in India are an example.

99 Nearly all commentators agree that selection against males carrying an X-linked disease is ethically justified even if only 50% of the males will be affected.

100 It is noteworthy that the American Civil Liberties Union, in challenging the Pennsylvania abortion law at issue in Casey did not challenge the State's ban on sex selection abortions, although that provision would, under the premises of Roe and Casey, also likely be found unconstitutional.

101 Robertson, John A., Preconception Gender Selection, 1 AM. J. BIOETHICS 2 (2001).CrossRefGoogle ScholarPubMed

102 Embryo screening by preimplantation genetic diagnosis (“PGD”) requires a woman to undergo a cycle of ovarian stimulation and retrieval to obtain eggs for in vitro fertilization. A cell is removed from a 4-8 cell embryo, and its chromosomes or DNA analyzed. Based on the analysis, the embryo would be transferred to the uterus or discarded. At some point, selection of gametes prior to fertilization could replace the need to screen embryos.

103 See Wertz, Dorothy C., International Perspectives on Ethics and Human Genetics, 27 SUFFOLK U. L. REV. 1411, 1430-32 (1993)Google ScholarPubMed.

104 Ethics Comm. of the Am. Soc’y of Reproductive Med., Preconception Gender Selection for Nonmedical Reasons, 75 FERTILITY & STERILITY 861, 862 (2002)Google Scholar.

105 Id.

106 Erik Eckholm, Desire for Sons Drives Use of Prenatal Scans in China, N.Y. TIMES, June 21, 2002, at A3. See also Amartrya Sen, More Than 100 Million Women Are Missing, N.Y. REV. BOOKS, Dec. 20, 1990, at 61.

107 Remaley, Rachel E., The Original Sexist Sin: Regulating Preconception Sex Selection Technology, 10 HEALTH MATRIX 249, 264 (2000)Google ScholarPubMed (finding that PGD costs at least $12,000 compared to preconception sperm sorting which costs $2,500).

108 Depending on the numbers choosing this technique, some sex-ratio disparities could still occur. For example, if couples were content with one child if it were male, they might use PGD for the second child only if the first were a girl. A greater number of males would then result. (I am grateful to Neil Netanel for this point).

109 The choice could also be based on religious beliefs. See ELLIOT N. DORFF, MATTERS OF LIFE AND DEATH: A JEWISH APPROACH TO MODERN MEDICAL ETHICS (1998).

110 Robertson, supra note 101, at 2-9.

111 United States v. Virginia, 518 U.S. 515, 533 (1996).

112 Ethics Comm. of the Am. Society of Reproductive Med., supra note 104, at 862.

113 An IVF program in India is now providing PGD to select male offspring as the second child of couples who have already had a daughter. Because of the importance of a male heir in India, those couples might well consider having an abortion if pregnant with a female fetus (even though illegal for that purpose). In that setting, PGD for gender selection for family balancing may well be justified, and be left to the market to provide. See Malpani, A. & Modi, D., Preimplantation Sex Selection for Family Balancing in India, 17 HUMAN REPROD. 11 (2002)CrossRefGoogle ScholarPubMed.

114 An Orthodox Jewish couple with severe male infertility had to resort to a sperm donor but did not want others to know. Because the husband was a Cohen, a male born as a result would not be able to truthfully recite passages at his Bar Mitzvah that only a Cohen could recite. Then, others attending the ceremony would know that the child was not that of the husband. To avoid the unavoidable disclosure of the donor sperm origins of the child that would result, the couple agreed to have a child only if they could be sure that it would be female. Israeli health authorities approved this couple's use of PGD to select female embryos for transfer. Tamara Traubmann & Haim Shadmi, Couple Allowed to Choose Baby's Gender to Avoid Halakhic Dilemma, Haaretz, Oct. 17, 2002 (on file with author). See also DORFF, supra note 109, at 72-79.

115 See Robertson, John A., Sex Selection for Gender Variety by Preimplantation Genetic Diagnosis, 78 FERTILITY & STERILITY 463 (2002)CrossRefGoogle ScholarPubMed.

116 PRESIDENT's COUNCIL ON BIOETHICS, BEYOND THERAPY: BIOTECHNOLOGY AND THE PURSUIT OF HAPPINESS 66-71 (Oct. 2003) (pre-publication version), available at http://www.bioethics.gov/reports/beyondtherapy/fulldoc.html.

117 Sandra Blakeslee, Perfect Pitch: The Key May Lie in the Genes, N.Y. TIMES, Nov. 20, 1990, at C1; Drayna, Dennis et al., Genetic Correlates of Musical Pitch Recognition in Humans, 291 SCIENCE 1969, 1969-72 (2001)CrossRefGoogle ScholarPubMed.

118 Id.

119 Id.

120 That selection of the trait is essential to the parents’ reproductive decision is relevant because if they would otherwise reproduce regardless of the ability to select the trait, a ban on selection would not interfere with their ability to have offspring. A more robust theory of procreative liberty might protect less essential preferences as well. However, I will confine my analysis to cases where parents can plausibly establish that they would not reproduce unless they could use the selection technique at issue. See Robertson, supra note 39.

121 Ethics Comm. of the Am. Fertility Soc’y, Ethical Considerations of Assisted Reproductive Technologies, 62 FERTILITY & STERILITY 32S (Supp. No. 1 1994)Google Scholar.

122 A private provider may refuse to screen embryos for those purposes. Whether a state ban on such selection would survive scrutiny would turn on whether selection of hair or eye color was deemed so important to the couple's procreative freedom as to fall within their procreative liberty. If so, respect for embryos or fears of slippery slopes to genetic engineering of offspring genes would probably not justify limiting that choice.

123 If the child would not otherwise have been born, they may not have harmed it at all. See infra Appendix.

124 Similar issues would arise in parental selection for hearing or deafness. If couples with a history of family deafness want to have a hearing child, they could screen out embryos with a mutation in the gene for connexion, which appears to cause 60% of inherited deafness. However, allowing parents this choice in the privacy of an IVF clinic would not denigrate existing persons with deafness. By the same token, deaf parents who selected for children with the mutation would not be denigrating hearing persons. A different objection would be that deaf parents would be harming a deaf child by intentionally making its birth possible, when hearing embryos could have been transferred. John C. Fletcher, Deaf Like Us: The Duchesneau-McCollough Case, 5 L’OBSERVATOIRE DE LA GÉNÉTIQUE (2002), at http://www.ircm.qc.ca/bioethique/obsgenetique/cadrages/cadr2002/c_no5_02/ca_no5_02_1.html. For analysis of harm to offspring in such cases, see infra Appendix. A different outcome might result if the deaf parents sought to silence the gene for connexion in order to have a deaf child. See discussion of intentional diminishment of offspring traits infra notes 189-95 and accompanying text.

125 Leon Kass and other strict traditionalists might also argue that selection practices could alter the societal status of all children by making them appear to be products or commodities. For a similar argument about the effect of surrogate motherhood and paid sex on children generally, see MARGARET JANE RADIN, CONTESTED COMMODITIES (1996).

126 See Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that Amish parents’ interest in instilling certain religious values in their children outweighed State's interest in requiring mandatory public education through age sixteen).

127 JONATHAN TOLINS, THE TWILIGHT OF THE GOLDS (1994).

128 The choice of gay parents to have gay children is not inconsistent with a reproductive agenda of gene transmission because those gay offspring might also reproduce, just as their gay parents did. In any event, in selecting for a child with gay genes, gay parents are engaged in the culturally defined project of reproduction as gene transmission and parenting in the next generation.

129 Robertson, John A., Two Models of Human Cloning, 27 HOFSTRA L. REV. 609, 633-37 (1999)Google ScholarPubMed.

130 See Zsolt Nagy, Peter et al., Development of an Efficient Method to Obtain Artificially Produced Haploid Mammalian Oocytes by Transfer of G2/M Phase Somatic Cells to GV Ooplasts, 78 FERTILITY & STERILITY S1 (Supp. 2002)CrossRefGoogle Scholar; Antonio Regalado, Could a Skin Cell Someday Replace Sperm or Egg?, WALL ST. J., Oct. 17, 2002, at B1.

131 Krahn, Lowell Ben, Cloning, Public Policy and the Constitution, 21 J. MARSHALL J. COMPUTER & INFO. L. 271, 274 (2003)Google ScholarPubMed.

132 Wilmut, Ian et al., Somatic Cell Nuclear Transfer, 419 NATURE 583, 583-86 (2002)CrossRefGoogle ScholarPubMed.

133 Jaenisch, Rudolph & Wilmut, Ian, Don't Clone Humans!, 291 SCIENCE 2552 (2001)CrossRefGoogle ScholarPubMed.

134 The loss of embryos and fetuses from attempts at human reproductive cloning may not violate moral duties owed to those entities, but it could implicate symbolic and expressive values about not cavalierly creating and destroying prenatal human life.

135 See Kass, Leon R., The Wisdom of Repugnance: Why We Should Ban the Cloning of Humans, 32 VAL. U. L. REV. 679, 688 (1998)Google ScholarPubMed.

136 Human Cloning Prohibition Act of 2003, H.R. 534, 108th Cong. § 302 (2003).

137 See discussion infra Part V.

138 The opponents’ perception that a clone will be an exact copy of the DNA source assumes a crude genetic reductionism that overlooks the phenotypic effects of uterine and rearing environments. In many versions, opponents appear to think that the cloned child will simply spring full-born into an identical version of the person cloned, as in the Greek myth of Athena springing full-born from the head of Zeus or the several clones of a busy building contractor that resulted from a surgical procedure in the film Multiplicty. Another popular-culture version of cloning, The Boys from Brazil, is much more accurate in recognizing that to clone effectively Hitler, one would have to recreate the experiences he had as a child.

139 See NBAC REPORT, supra note 35, at 69.

140 In arguing that any transfer of a cloned embryo to the uterus would be an unethical experiment on an unconsenting child, Leon Kass and the President's Bioethics Council assume that knowingly risking the birth of a child with handicaps is always unethical, even if the child could not otherwise have been born and the parents are committed to loving and rearing it. See discussion infra Appendix.

141 Tully, Paul, Comment, Dollywood is Not Just a Theme Park in Tennessee Anymore: Unwarranted Prohibitory Human Cloning Legislation and Policy Guidelines for a Regulatory Approach to Cloning, 31 J. MARSHALL L. REV. 1385, 1405 (1998)Google ScholarPubMed.

142 CLONING REPORT, supra note 13.

143 See discussion infra Appendix.

144 CLONING REPORT, supra note 13, at 110.

145 Erin Rentz, Estimating Additive Genetic Variation and Heritability of Phenotypic Traits, at http://online.sfsu.edu/∼efc/classes/biol710/heritability/heritability.htm (last updated May 30, 2002).

146 Nuclear transfer cloning requires transfer of the nucleus to an enucleated oocyte, with mitochondrial DNA in the cytoplasm that will be different than that of the DNA source.

147 The other major misconception is that a cloned child is necessarily harmed by being cloned (as would be cloned children who die early or are born with defects ). But cloned children would not otherwise have been born and from their perspective, once born, they have an interest in living. See discussion infra Appendix. Rather than focus on harm to offspring, one might more usefully ask whether parents would be violating norms of good parenting if they were committed to rearing the resulting child, whatever its impairments.

148 The radical libertarian would accept cloning even if a person is fertile as part of the right to select whatever genes of offspring one wishes. See infra notes 152-53 and accompanying text.

149 Schatten, Gerald et al., Cell and Molecular Biological Challenges of ISCI: Art Before Science?, 26 J.L. MED. & ETHICS 29, 34 (1998)Google Scholar.

150 The husband would have a 99.9% genetic connection, while the wife would have a gestational and mtDNA connection. Even then, only a small number of that small group of gametically infertile persons is likely to opt for reproductive cloning.

151 The small number of persons seeking reproductive cloning when infertile does not lessen or change the ethical analysis. Rights matter even if only one person exercises them. As the Supreme Court reminds us in Casey, it is the degree of interference, not the number interfered with, that determines whether a fundamental right has been infringed. 505 U.S. at 894 (discussing whether a spousal notification requirement infringes a woman's right to terminate pregnancy if it would result in only a few women being denied an abortion).

152 In a person-affecting system of harm, the cloned child who would not otherwise have been born would not be harmed by being brought into the world in that condition. See discussion infra Appendix.

153 Persons who have obtained the nuclear DNA of another for somatic cell nuclear transfer cloning would not themselves be reproducing. The source of the DNA would be replicating 99.9% of their genes, but they are not claiming a right to do so nor in the scenario described here intending to rear resulting offspring.

154 The claim of such a right would give those with wealth and power additional advantages over others, in much the same way that wealth-based access to non-therapeutic enhancement might. For a discussion of “genetic domination,” see BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE 113-38 (1980). In the long-run, cloning by the sexually fertile is unlikely to be a successful reproductive strategy. Without the genetic diversity generated by meiotic recombination and sexual merging of different chromosomes, cloned individuals who clone in turn will eventually be weakened versus others. Consistent inbreeding would make it much less likely to survive in the long-run. See Mark Derr, Florida Panther's Great Leap Hits a Wall, N.Y. TIMES, Oct. 15, 2002, at F3. Yet the individual faced with the short-run prospect of no genetic transfer to a new generation or transfer by cloning might rationally choose cloning despite the many long-run disadvantages.

155 This position is a far cry from the perception of a general right to select offspring characteristics in all cases that Karen Lebacqz mistakenly ascribes to her earlier cited critique. See Lebacqz, supra note 46.

156 This statement is contestable and may appear to contradict earlier statements. See supra note 46 and accompanying text. In any event, yielding to community conceptions of the importance of reproduction as intimately tied to sexual reproduction does not also entail yielding to its conceptions of acceptable means of achieving sexual reproduction. See Lebacqz, supra note 46.

157 See NBAC REPORT, supra note 35, at 15.

158 See id.

159 See Robertson, supra note 39, at 436; Robertson, John A., Oocyte Cytoplasm Transfers and the Ethics of Germ-Line Intervention, 26 J.L. MED. & ETHICS 211, 211 (1998)CrossRefGoogle ScholarPubMed.

160 See Sosnowski, Kristie, Genetic Research: Are More Limitations Needed in the Field?, 15 J.L. & HEALTH 121, 127-30 (2001)Google Scholar.

161 Genes may be silenced by adding interfering RNAs to stop DNA transcription. Or genes may be inserted through homologous recombination or in artificial chromosomes.

162 Scientists can transfer genetic material between organisms, for example, transfecting pigs with the silk-producing genes of spiders so that pigs produce silk in their milk. Lawrence Osborne, Got Silk, N.Y. TIMES MAG., June 16, 2002, at 49. At present, DNA is simply injected into the nucleus, counting on principles of homologous recombination for it to be taken up at the intended location. Those cells that have taken up the genes can be identified and then cloned to produce many copies. Improved vectors for inserting DNA into cells or artificial chromosomes may be a more efficient way to transfer genes between cells.

163 Science magazine, the leading science publication in the world, named this discovery the most important scientific event of 2002. Couzin, Jennifer, Breakthrough of the Year, 298 SCIENCE 2296, 2296 (2002)CrossRefGoogle Scholar.

164 Malter, Henry E. et al., Gene Silencing in Mouse Embryos Using Short Interfering Oligoribonucleotide-Based Double-Stranded Constructs, 78 FERTILITY & STERILITY S75 (Supp. 2002)CrossRefGoogle Scholar. Such research would raise issues of embryo and human subjects research, research funding policy, and patents, all of which are beyond the scope of this article.

165 If DNA is the “code” for proteins and cellular functioning, then instructions in the code for disease-causing proteins could be edited out or rewritten to ensure a healthy child. Strict traditionalists are likely to be offended by this articulation for they would perceive it as assuming that the child is an object or product which the parents may legitimately design or fashion as they wish.

166 See CLONING REPORT, supra note 13, at 96-110.

167 For discussion of the importance of use of the technique being “essential” and not a “mere preference,” see Robertson, supra note 39.

168 See ACKERMAN, supra note 154, at 113-38.

169 The strict traditionalist might argue that any alteration harms the child by robbing it of its qualities and experiences it would have had if it had been “begotten” and not made.

170 Indeed, some persons would argue that the very process of experimentation that would be necessary to perfect these techniques risks harming the children who are born as a result. They call for changes in human subject research regulations to prevent such work from occurring. See Rebecca Dresser, Designing Babies: Research Ethics Issues (2003) (unpublished manuscript, on file with American Journal of Law & Medicine). While this position at first blush is appealing, it has not considered the fact that the children in question would not have been born if the experimental technique in question had not been used. Even if those children, strictly speaking, have not been harmed, it does not follow that such research or other gene alteration activity is otherwise acceptable or part of a person's reproductive liberty. See discussion infra Appendix.

171 Francis Fukuyama gives three arguments against such choices, but the ones he lists (violating the dignity of a human, the right of a human to be human, and the preservation of human nature) are too vague and undeveloped to perform serious work in determining which genetic technological innovations would be acceptable. FRANCIS FUKUYAMA, OUR POSTHUMAN FUTURE: CONSEQUENCES OF THE BIOTECHNOLOGY REVOLUTION (2002).

172 See ROBERT H. FRANK & PHILIP J. COOK, THE WINNER-TAKE-ALL SOCIETY: WHY THE FEW AT THE TOP GET SO MUCH MORE THAN THE REST OF US 167-87 (1995) [hereinafter WINNER TAKE-ALL SOCIETY]; ROBERT H. FRANK, LUXURY FEVER: WHY MONEY FAILS TO SATISFY IN AN ERA OF EXCESS (1999); BUCHANAN, supra note 92, at 222-56.

173 Whether restrictions aimed at limiting positional arms races would be constitutional will depend upon whether non-medical enhancement falls within procreative liberty, and the importance of communal efforts to prevent genetic segmentation in society.

174 The distinction between “therapeutic” and “non-therapeutic” alterations is a rough cut of the issues. If pushed further, the distinction might collapse in many circumstances. See BUCHANAN, supra note 92, at 107-54.

175 This analysis would apply also to dominant conditions (50% chance of the child being born with the mutation).

176 A strict right-to-lifer might choose to do so to save embryos with the mutation, but it is unlikely that persons with those views would be requesting PGD to screen embryos in the first place. Perhaps a family that wanted siblings for a child born after IVF and PGD and was not able to undergo another IVF cycle might request to gene therapy on remaining embryos with the mutation. But such cases are likely to be infrequent.

177 See Casey, 505 U.S. at 894 (holding that husband notification requirement that would likely bar very few women from abortions is unconstitutional despite the small number affected).

178 The argument has also been made that such germline genetic engineering could remove desirable genes from the gene pool. Given the small number of cases in which such deletions would occur, this fear is not realistic. If important genes were lost, the missing genes could be inserted in later generations.

179 For further discussion of this point, see infra Appendix.

180 Even if unsafe, the child itself, strictly speaking, is not harmed in a person-affecting system of harm. However, the authenticity of the parents’ reproductive project can then be questioned. See discussion infra Appendix.

181 The ethics of research here is quite complex. Strictly speaking, no child would have existed unless the experimental gene therapy had been done. Even if children are born with injuries or anomalies, they would have had no alternative way to have been born without them. If they suffer inordinately, they may have no interest in continued living, and maintaining their lives would arguably violate their right to be free of inordinate suffering. For discussion of this point, see infra Appendix.

182 See Reiss, Michael J., What Sort of People Do We Want? The Ethics of Changing People Through Genetic Engineering, 13 NOTRE DAME J.L. ETHICS & PUB. POL’Y 63, 75 (1999)Google ScholarPubMed; Robertson, supra note 39, at 436.

183 Leon Kass and the President's Bioethics Council make this move to oppose reproductive cloning. They argue that it would never be ethical to transfer a cloned embryo to the uterus because of the resulting child's lack of consent. Indeed, they suggest that the first IVF embryo transfers were unethical because of the child's lack of consent. As this paragraph shows, however, they are mistaken that the child is harmed by being born after research and thus that its advance consent is necessary. To make that claim, they have to adopt a person-affecting theory of harm. Since the person comes into existence only as a result of the embryo transfer, he or she cannot have been harmed by it (unless truly a wrongful life, in which case cessation of all life support would be morally required). See infra Appendix. To make their case, they must appeal to non-person-affecting principles of harm which they have failed to discuss. A general objection to children as “products” does not provide such a theory. See CLONING REPORT, supra note 13, at 109.

184 For further elaboration of this point, see infra Appendix.

185 See Robertson, supra note 39, at 429-32.

186 For example, the claim of a right to alter the genes of prospective offspring to enhance its longevity would also fail. A long lifespan is not necessary for the successful reproduction of that progeny. Requests to extend the life of future children might then reasonably be viewed as not part of reproductive choice. Although a longer life might serve the interests of their children, not everything that serves offspring interests falls within reproductive liberty.

187 Meyer v. Nebraska, 262 U.S. 390, 400 (1923); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35 (1925); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).

188 See Mehlman, Maxwell J., The Law of Above Averages: Leveling the New Genetic Enhancement Playing Field, 85 IOWA L. REV. 517, 537-39 (2000)Google ScholarPubMed.

189 The fact that the child is not itself harmed would not mean that government could not rationally try to discourage the activity. See infra Appendix.

190 For a discussion of the importance of the use of the technique being essential to reproduction and not a mere preference, see Robertson, supra note 39.

191 The phenomenon of wasteful and self-defeating positional arms races where each tries to improve his relative position versus others is now familiar. See WINNER-TAKE-ALL SOCIETY, supra note 172, at 167-87. If genetic enhancements become possible, agreements to discourage positional arms races will likely emerge through social norms, contracts, or governmental regulation. If so, the argument that restrictions on positional arms races in genetic enhancement of offspring would violate procreative liberty would be weak.

192 See id. at 186-87. The case for a ban on enhancement would be strongest if there were physical risks from the procedure, and the child would have been born regardless of the use of the harmful enhancement technique. Frank and Cook posit a situation in which a genetic enhancement technique has a 99% chance of a 15% improvement on SAT-type tests but a 1% risk of no improvement and severe emotional disability as a result. If there is such a high risk, a genetic enhancement could be banned on those grounds, e.g., as not safe and effective, for existing children. If the enhancement occurred prenatally, it might not be harmful to the child who would not otherwise have been born but for use of the technique. However, one might still reasonably question whether parents are exercising procreative liberty when they take a small risk of a great loss in order to make an otherwise healthy child somewhat better off.

193 See Katz, Katheryn D., The Clonal Child: Procreative Liberty and Asexual Reproduction, 8 ALB. L.J. SCI. & TECH. 1, 17 (1997)Google ScholarPubMed.

194 The plot is driven by the attempts of some “replicants” who have escaped to earth to find the genetic key that can unlock a normal human lifespan, and thus enable them to live out the love they have for each other.

195 Robertson, supra note 39, at 438-39.

196 JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY 150-53 (1996).

197 But even that claim could be contested, even if ultimately accepted. In the end, one would expect to find very few legitimate reproductive cases of diminishment.

198 See Robertson, supra note 39, at 440-41.

199 See infra Appendix.

200 See Human Fertilisation and Embryology Act, c. 37 (1990) (Eng.); de Wachter, Maurice A.M., The European Convention on Bioethics, 27 HASTINGS CENTER REP. 13, 13 (1997)CrossRefGoogle ScholarPubMed; UNITED NATIONS EDUCATION, SCIENTIFIC AND CULTURAL ORGANIZATION, at http://www.unesco.org (last visited Nov. 13, 2003).

201 See Parens, Erik & Knowles, Laurie P., Reprogenetics and Public Policy Reflections and Recommendations, 33 HASTINGS CENTER REP. S3 (Supp. 2003)CrossRefGoogle ScholarPubMed.

202 Compare Plummer, Kely M., 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, 518 (2003)Google ScholarPubMed, with Orentlicher, David, Beyond Cloning: Expanding Reproductive Options for Same-Sex Couples, 66 BROOK. L. REV. 651, 677 (2000/2001)Google ScholarPubMed.

203 Legally trained commentators emphasize other issues. See, e.g., Daar, Judith F., Regulating Reproductive Technologies: Panacea or Paper Tiger?, 34 HOUS. L. REV. 609 (1997)Google ScholarPubMed; Andrews, Lori B., Regulating Reproductive Technologies, 21 J. LEGAL MED. 35 (2000)Google ScholarPubMed; LORI B. ANDREWS, THE CLONE AGE: ADVENTURES IN THE NEW WORLD OF REPRODUCTIVE TECHNOLOGY (1999).

204 NATIONAL INSTITUTES OF HEALTH, DEP't OF HEALTH & HUMAN SERVICES, NIH GUIDELINES FOR RESEARCH INVOLVING RECOMBINANT DNA MOLECULES (Apr. 2002), available at http://www4.od.nih.gov/oba/rac/guidelines_02/NIH_Guidelines_Apr_02.htm.

205 E.g., Robertson, John A., The Case of the Switched Embryos, 25 HASTINGS CENTER REP. 13 (1995)CrossRefGoogle ScholarPubMed; Rogers, Karen T., Embryo Theft: The Misappropriation of Human Eggs at an Irvine Fertility Clinic Has Raised a Host of New Legal Concerns for Infertile Couples Using New Reproductive Technologies, 26 SW. U. L. REV. 1133 (1997)Google Scholar.

206 The one exception is the 1992 Fertility Clinic Success Act, which fosters a voluntary reporting system through the Centers for Disease Control and the relevant professional groups.

207 Browne, Matthew, Note, Preconception Tort Law in an Era of Assisted Reproduction: Applying a Nexus Test for Duty, 69 FORDHAM L. REV. 2555, 2559-60 (2001)Google Scholar.

208 The creation of the new Department of Homeland Security to deal with terrorist threats may be an exception.

209 E.g., N.H. REV. STAT. ANN. § 168-B:4 (2002); VA. CODE ANN. § 20-158 (2000).

210 George, Erin P., Comment, The Stem Cell Debate: The Legal, Political and Ethical Issues Surrounding Federal Funding of Scientific Research on Human Embryos, 12 ALB. L.J. SCI. & TECH. 747 (2002)Google ScholarPubMed.

211 Shannon Brownlee, Designer Babies: Human Cloning Is a Long Way Off, But Bioengineered Kids Are Already Here, WASH. MONTHLY, Mar. 2002, at 25, 27.

212 R. Alta Charo, Bush's Stem-Cell Decision May Have Unexpected–and Unintended– Consequences, CHRON. HIGHER EDUC., Sept. 7, 2001, at B14.

213 President Clinton, however, did reject the Panel's recommendations on federal support in some cases of creating embryos for research.

214 H.R. 2127, 104th Cong. § 511 (1996).

215 Thomson, James A. et al., Embryonic Stem Cell Lines Derived from Human Blastocysts, 282 SCIENCE 1145, 1145-47 (1998)CrossRefGoogle ScholarPubMed; Shamblott, Michael J. et al., Derivation of Pluripotent Stem Cells from Cultured Human Primordial Germ Cells, 95 PROC. NAT’L ACAD. SCI. 13726 (1998)CrossRefGoogle ScholarPubMed.

216 General Counsel Harriet Raab had previously issued an opinion stating that since embryonic stem cells were not themselves embryos, federal funding of research with them did not violate the Congressional ban on federal funding of research with embryos.

217 ZENIT, Report Fueling Fears About Stem Cell Research: Embryos Created and Destroyed on Purpose, at http://users.colloquium.co.uk/∼BARRETT/stems.htm (last visited Nov. 13, 2003).

218 Katherine Q. Seelye & Frank Bruni, A Long Process that Led Bush to His Decision, N.Y. TIMES, Aug. 11, 2001, at A1.

219 See Human Cloning Prohibition Act of 2001, H.R. 2505, 107th Cong. (2001).

220 Nicholas Wade, Scientists Make 2 Stem Cell Advances, N.Y. TIMES, June 21, 2002, at A18.

221 Such public bodies as the National Institutes of Health Human Embryo Research Panel (1996), the National Bioethics Advisory Commission (1998-2001), and the President's Council on Bioethics (2002-2004) have provided a useful service in analyzing issues and organizing discussion. So have bodies from the National Academy of Sciences, the Institute of Medicine, the American Association for the Advancement of Science, and interested professional bodies, such as the Ethics Committees of the American College of Gynecology and Obstetrics, and the American Society of Reproductive Medicine. Although only advisory, their reports and recommendations have helped clarify and shape the social and political debate by pointing out the major normative fault lines and the tradeoffs that different public policies could have, with recommendations for how best to balance them. They have also played a role in advising courts, legislatures, institutions, and providers about ethical practices.

222 John Deigh has argued that if genetic enhancement becomes feasible, there will be an obligation to provide it to the poor as well (personal communication with author).

223 This statement does not hold as strongly for genetic enhancement but there are other features of that practice that could limit its use. See discussion supra Part IV.D.2.

224 The case is different if the parents have done something affecting the child's present condition which could have been avoided and yet the child be born, such as refraining from using drugs or alcohol in a pregnancy going to term.

225 I put aside the rare cases of truly wrongful life, in which every postpartum moment of life is full of excruciating pain. In such a case, one would have a moral obligation to cause the cessation of that child's life. However, David Heyd would disagree. He thinks that, until there is a person in being, there is no being to whom moral duties are owed, and thus no rights holder until birth occurs. Therefore, there has been no wrong until after the child is born, and efforts are not made to cease its excruciating existence. DAVID HEYD, GENETHICS: MORAL ISSUES IN THE CREATION OF PEOPLE 59-62 (1992). See also MELINDA A. ROBERTS, CHILD VERSUS CHILDMAKER: FUTURE PERSONS AND PRESENT DUTIES IN ETHICS AND THE LAW (1998).

226 Derek Parfit's example of the woman who could wait a month to conceive or take a pill and thereby avoid the birth of a child with a withered arm captures this sense perfectly. Derek Parfit, On Doing the Best for Our Children, in ETHICS AND POPULATION 100 (Michael D. Bayles ed., 1976).

227 DEREK PARFIT, REASON AND PERSONS 487-90 (1984); Dan Brock, The Non-Identity Problem and Genetic Harms—The Case of Wrongful Handicaps, 9 BIOETHICS 269 (1995). See also BUCHANAN, supra note 92, at 222-57. See ROBERTS, supra note 225; Melinda Roberts, A New Way of Doing the Best That We Can: Person-Based Consequentialism and the Equality Problem, 112 ETHICS 315, 315-50 (2002).

228 Although that person may not be harming the child in pursuing reproductive goals, she may be harming other interests, such as a collective or communal interest in a certain moral tone. But using such judgments to constrain reproduction in a liberal society where people are generally free to choose their own ends and vision of the good is questionable.