Assisted reproductive technologies and the Constitution.

• Author: Coleman, Carl H.
• Position: Procreative liberty

Assisted reproductive technologies ("ARTs") have generated a host of new choices that were unimaginable to persons in previous generations. Since the first child conceived through in vitro fertilization ("IVF") was born nearly twenty-five years ago, infertility has been transformed from an uncontrollable life circumstance into a "disease," and medical treatment has come to be seen as the standard response. (1) ARTs have also expanded reproductive options for individuals without fertility problems. Donor insemination, available since the 1950s, but not taking off until the 1970s and 1980s, (2) permits women to have children without a partner of the opposite sex. With egg donation, women can reproduce long after menopause, (3) and the ability to freeze gametes and embryos means that even death need not mark the end to one's reproductive life. (4)

In addition to expanding individuals' choices about whether and when to reproduce, ARTs increasingly offer the ability to control specific characteristics of one's future children. Through pre-implantation genetic diagnosis ("PIGD"), individuals who undergo IVF can screen their embryos for certain genetic diseases and select for implantation only those embryos that are not affected. (5) These technologies are not limited to the identification of disease-related characteristics; already, some physicians are using PIGD, as well as less accurate, but less controversial sperm-sorting technologies, for prospective parents who want to have children of a particular sex. (6) Future developments in trait selection technologies, including techniques for affirmative genetic manipulation, may give individuals even greater control over their children's genetic makeup. (7) Eventually, cloning may become the ultimate form of controlled procreation; if the somatic cell nuclear transfer technique used to create Dolly the sheep proves successful in humans, a child created in this manner would have virtually the identical genetic makeup as the person from whom the somatic cell was obtained. (8)

As indicated by the diverse speakers at this conference, there is substantial disagreement about whether the new choices offered by ARTs are a positive social development. Speaking from a Roman Catholic perspective, Helen Alvare argued that separating sex and procreation is invariably harmful, because the conception of a child should always result from an intimate and loving act. (9) In contrast, others maintained that ARTs offer important benefits to infertile couples, particularly those whose religious beliefs preclude legal adoption. (10) Yet, even among this latter group, some speakers expressed concern about certain aspects of ARTs. Cynthia Cohen, for example, argued that using ARTs "to produce made-to-order children who have been shaped to meet arbitrary parental or social standards of beauty or perfection" raises significant problems from a Protestant theological perspective. (11) Although stopping short of calling explicitly for legal prohibitions on trait-selection technologies, she noted that the use of ARTs to engineer particular types of children risks "reinforcing discriminatory and harmful stereotypes" (12) and "raises the question of what sort of society we want to become." (13)

Proposals for greater social oversight of ARTs challenge us to confront basic questions about the allocation of authority between individuals and society in the area of reproductive decision-making. Should decisions about the use of ARTs be viewed as primarily private matters, to be presumptively protected from societal control? Or is the technological transformation of reproduction a species-level issue, (14) in which individual preferences should give way to a collective determination of the overall social good? Under the former view, the role of public policy would be limited to purposes such as facilitating informed decisions by individuals, (15) enhancing the quality of services by ART practitioners, (16) and clarifying the parental rights and responsibilities of persons involved in the process. (17) By contrast, the latter view would support restricting or even prohibiting practices that society deems inconsistent with overall social welfare. (18)

How these questions are resolved will depend to a large extent on the way in which the principle of procreative liberty is interpreted by the Supreme Court. If decisions about the use of ARTs are entitled to no special constitutional protection, the government could regulate these decisions in virtually any manner it chooses, subject only to the constitutional constraints that apply to lawmaking generally. If, however, individuals have a constitutionally protected interest in making decisions about the use of some or all ARTs, any regulation of these technologies would be subject to heightened judicial scrutiny. Restrictions on ARTs would then have to be supported by a strong justification, including specific evidence that the regulations are necessary to avoid actual harm.

While a finding that ARTs implicate constitutionally protected interests would not undermine all government efforts to regulate these technologies, it might preclude outright prohibitions on the use of ARTs. (19) In addition, laws that indirectly affect access to ARTs, such as embryo research bans, (20) or laws that limit access to sperm banks to licensed physicians, (21) also would be vulnerable to constitutional challenges. Whether such challenges would be successful would depend on how broadly the courts frame the applicable constitutional interests, the extent to which the laws in question restrict individual decision-making, and the strength of the government's asserted policy goals.

1. EXISTING LAW AND COMMENTARY

   Unfortunately, any constitutional analysis of ARTs must rely on a great deal of speculation. The Supreme Court has never explicitly recognized a constitutional right to procreate, even through sexual intercourse, although a number of decisions have strongly suggested that such a right exists. For example, in Skinner v. Oklahoma, (22) the Court observed in dicta that the right to reproduce is "one of the basic civil rights of man." (23) Similarly, in Eisenstadt v. Baird, (24) the Court stated that, "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." (25) The Court's abortion decisions also include language about the importance of procreative decisions. In Planned Parenthood of Southeastern Pennsylvania v. Casey, (26) a plurality of the Court stated that "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education" are "central to the liberty protected by the Fourteenth Amendment." (27) In light of these cases, most commentators agree that the Court would recognize a constitutional right to reproduce through sexual intercourse, at least for married couples. (28)

   A few lower courts have explicitly recognized such a right and have extended it to reproduction through ARTs. For example, in 1990, a federal court in Illinois struck down a state statute banning fetal experimentation on the ground that the vague statutory language might deter physicians from providing IVF. (29) According to the court, if the right to privacy includes the right to avoid reproduction, it must also include "the right to submit to a medical procedure that may bring about, rather than prevent, pregnancy." (30) In a recent Ninth Circuit decision striking down Arizona's recent fetal research ban, a concurring judge relied on a similar constitutional analysis. (31)

   In the absence of directly applicable Supreme Court precedent, commentators have suggested a variety of approaches to interpreting the scope of constitutionally protected procreative liberty. John Robertson, a leading commentator on the legal implications of ARTs, argues that the principle of procreative liberty broadly protects the freedom to have a biologically-related child. (32) Under his framework, if a procedure is necessary to achieve biological reproduction, governmental efforts to regulate the...