“I belonged to a new underclass no longer determined by social status or the color of your skin. No, we now have discrimination down to a science.” – Vincent Anton Freeman

From the ubiquitous grade school novel Brave New World, to the 1997 cult classic Gattaca, sci-fi writers love the idea of genetically tinkering with babies. Also known as “test tube” or “designer” babies, future science promises prospective parents the option of creating the newborns with perfect features and genetics. Because fellow Legal Geek blogger Thomas Harper and I both recently became first-time fathers, I thought we should explore our options in case helicopter parenting doesn’t work and our wives want to remove our less-admirable genetic traits next time.

In Gattaca, Ethan Hawke’s Freeman fights his way through life with poor eyesight and a heart defect after his parents made him “the old fashioned way.” His brother, however, was brought into the world in what was now called “the natural way.” Parents using that process get their first choice for all attributes. Gender screening, defect screening, physical attribute choice. Hell, for an extra $5,000 the embryo could have genes spliced into it to have enhanced musical or mathematical skills.

Today, designer babies are the product of Preimplantation Genetic Diagnosis (“PGD”), which “is a procedure that identifies genetic defects in early embryos conceived via In Vitro Fertilization techniques.” Bratislav Stankovic, “It’s A Designer Baby!” Opinions on Regulation of Preimplantation Genetic Diagnosis, UCLA J.L. & Tech., 2005, at 3, 1. But PGD isn’t only used for screening out defects, it can also allow parents to select some physical traits, gender, and create a donor offspring for a preexisting sibling in need of a stem cell. Susan M. Wolf, et al., Using Preimplantation Genetic Diagnosis to Create a Stem Cell Donor: Issues, Guidelines & Limits, 31 J. L. Med. & Ethics 327 (2003).

While illegal in a number of countries, the United Kingdom’s ethics body has recently come out in favor of PGD if it is used in the future child’s best interests. The United States government, however, has largely stayed out of regulating PGD despite U.S. researchers already using the technique to genetically modify embryos. The Food and Drug Administration has issued a final rule regulating certain uses of human cells, tissue, and cellular and tissue-based product. See Human Cells, Tissues, and Cellular and Tissue-Based Products; Establishment Registration and Listing, 66 FR 5447-01. Identifying future concerns, the U.S. National Academies of Science, Engineering, and Medicine published a 261-page report suggesting limitations on the technology but agreeing that it is permissible if researchers meet strict criteria.

Acknowledging a woman’s privacy rights, the Supreme Court in Roe v. Wade held that “a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.” 410 U.S. 113, 154 (1973) (emphasis added). Accordingly, several states have enacted laws regulating embryo research, including some with felony penalties for violations. Michigan law prohibits nontherapeutic research if “the research substantially jeopardizes the life or health of the embryo.” Mich. Comp. Laws § 333.2685. Minnesota law bans all research “except to protect the life or health of the [embryo],” Minn. Stat. § 145.422, and Pennsylvania makes it a felony to perform any type of research on an unborn child, 18 Pa. Cons. Stat. § 3216. See also Me. Rev. Stat. tit. 22, § 1593; La. Stat. Ann. § 9:129.

Critics of PGD and genetically-engineered babies often associate the process with the eugenics practices of the early 20th century, such as the forced sterilization of disabled persons to remove unwanted traits from society. See Buck v. Bell, 274 U.S. 200, 207 (1927) (upholding sterilization law because “society can prevent those who are manifestly unfit from continuing their kind”). The high cost of PGD procedures also means that it is functionally only available for the wealthy elite, subtly encouraging a culture of selectivity and discrimination based on “desirable” traits. Greedy medical clinics will likely jump at the chance to cater to the whims of these “buyers,” disregarding ethical concerns and turning “the process of having child into a consumer experience, giving it a measurable, commodified value.” Stankovic, “It’s A Designer Baby!”, at 3, 34. So what controls or criteria should—and can—be implemented to address the obvious pitfalls of this technology?

The U.S. Constitution does not explicitly mention reproduction, but that does not mean the Supreme Court has avoided the topic. Abortion, which can implicate the rights of the both the mother and child, has been upheld with certain cabining concepts. First, the Court has ruled that “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.” Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 846 (1992). Because viability has been the benchmark, protecting the rights of embryos in PGD may turn on establishing the fertilized ovum’s personhood. See Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should be Overruled, 59 U. Chi. L. Rev. 381, 400 (1992).

Second, the Court has also commented on the broad category of permissible state interests in the reproductive realm. “[T]he state interest in [protecting] potential human life is not an interest in loco parentis, for the fetus is not a person . . . . [This interest] is not grounded in the Constitution. It is an indirect interest supported by both humanitarian and pragmatic concerns[.] The State may also have a broader interest in expanding the population, believing society would benefit from the services of additional productive citizens– or that the potential human lives might include the occasional Mozart or Curie. These are the kinds of concerns that comprise the State’s interest in potential human life.” Casey, 505 U.S. at 915. Accordingly, the Court is likely to leave the question of where to draw the ethical and prudential lines around PGD to the states.

But state statutes have been deemed unconstitutional on the basis of violated fundamental liberty interest, or on grounds of vagueness regarding what constitutes “experimentation” or “therapeutic.” See Lawrence v. Texas, 539 U.S. 558 (2003); Lifchez v. Hartigan, 735 F. Supp. 1361 (N.D. Ill. 1990); Margaret S. v. Edwards, 794 F.2d 994, 999 (5th Cir. 1986). What level of scrutiny these potential PGD laws are tested under, however, is not entirely clear. While state laws that “impinge on personal rights protected by the Constitution are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest,” no enumerated personal rights pertaining to reproduction and genetic modification exist. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 433 (1985). Therefore, because unmodified embryos are also not a protected class, it’s likely the courts will review future state laws under the easily-met rational basis test. Stankovic, “It’s A Designer Baby!”, at 3, 13.

In conclusion, the technology for genetically designing babies that first seemed so ridiculous in Gattaca is knocking on the door of reality. While the federal government is likely to cede regulation of PGD to the states (at least initially), state laws will likely be subject to scrutiny under the Fourteenth Amendment’s Equal Protection Clause or Due Process Clause. And because U.K. and U.S. medical boards have deemed the practice ethically sound at least in theory, I’d imagine that we will start to see these issues crop up sooner than later. So the only remaining question is, do Thomas and I talk our wives into making our next children football or electric guitar prodigies?

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