Making mommies: law, pre-implantation genetic diagnosis, and the complications of pre-motherhood.

Author:Mutcherson, Kimberly M.

"The major threats from coming advances in reproductive technology are not medical but political, social and philosophical." (1)

Debate and concern about the ability to manipulate human life through the use of reproductive technologies is not new. As the use of technology slowly spreads, it becomes necessary to critically evaluate how calls to regulate this technology, by constraining access to or limiting particular uses of particular technologies, will impact long-standing conundrums about reproduction, parenting, and the law. To that end, this Article focuses on three topics: 1) the potential for legal regulation of pre-implantation genetic diagnosis, also known as PGD; 2) the relationship between such future regulation and the existing legal landscape attendant to parenting, procreation, and pregnancy; 3) and the specific consequences for women of legal incursion into PGD decision-making. (2) PGD refers to a process of testing embryos prior to implantation in order to determine various genetic characteristics. Pre-implantation testing is frequently employed to determine whether the future child will have a particular disease or disability, but testing can also be used simply to determine sex.

Using PGD as a representative reproductive technology, this Article focuses on motherhood and mothering, and the metamorphosis of legal controls on motherhood that is occasioned and increased by access to progressively more transformative types of reproductive technology. As the Article describes, motherhood is contested territory and many women struggle to conform to their own definitions of what it means to be a "good mother" and avoid the dreaded label of "bad mother." The law is not neutral on motherhood, and it has long acted as a conforming force by setting overt or covert minimum standards of parenting in general and of mothering in particular. More perniciously, the law has been wielded unevenly and in a discriminatory fashion, which has led to disproportionate representation of the poor and people of color in the nation's child welfare system. In doing so, the law participates in a process of naming some women bad mothers and questioning, even at times denying, their right to parent.

The binding power of the law when it comes to motherhood is only partially about dictating access to parenting, controlling relationships between mothers and their children, manipulating choices about the use of certain medical procedures, and involving itself in alternative means of family formation. As importantly, the law wields expressive power in this arena meaning that regulations or laws that criminalize, prohibit, discourage, or punish choices or behaviors transmit messages that can provoke shame or embarrassment and lead to ostracism and approbation. We know that laws dictate norms of behavior. In doing so, they help us to understand our place in society and the value that our society places upon us. Therefore, it is a very serious thing when the law begins to create specific edicts of behavior for reproductive decisions.

Through an analysis of the law's eventual approach to PGD, this Article explains how future regulatory actions will play a role in expanding the category of bad mother. Women across a broad spectrum of life experiences and socioeconomic circumstances might find themselves grouped with less advantaged women who have long struggled to free themselves from the yoke of the bad mother label. These moments of shared denigration could create unexpected and potentially powerful allegiances among mothers. But, even if they do not, legal regulation of choices related to the use of reproductive technology will become part of the landscape of how the law categorizes and values motherhood. By extrapolating into the future, this Article provides guidance to those legislative and policymaking bodies that seek to intrude in an arena that is of tremendous personal importance and that involves one of the most private matters affecting human beings--the quest for progeny.

Part I begins with a description of the medical landscape attendant to modern pregnancies in the United States. It then highlights some of the controversies and difficulties technology brings to the experience of pregnancy and pre-pregnancy, including both the potential pressures on women to accede to prenatal testing and the critiques of the manner in which PGD has been employed to reject embryos that fail to meet certain standards of supposed normality. It ends by evaluating why a state legislature might choose to regulate PGD though it has not regulated prenatal testing in any profound way.

Part II discusses the myriad ways in which existing law impacts procreative and parental decision-making, and how the public nature of procreation and pregnancy make this stage of life ripe for regulation and categorization that is deeper and more intimate than is often the case when the law regulates non-pregnant bodies. More specifically, this section emphasizes the disparate gender impact of such regulation. The section particularly focuses on the vagaries of restrictive abortion regulation to highlight the link between how states have chosen to regulate abortion and future attempts to regulate PGD.

Part III imagines and contemplates the constitutionality of future state regulation of PGD, specifically a potential ban on the technology or limitations on its uses. Part IV articulates the likely consequences of future legislation for women and explains how many legislative choices, including bans or limitations on the use of PGD, will negatively impact many women, partly by continuing attempts to delineate categories of good and bad motherhood. Finally, the Article concludes that regulation of PGD is an idea that should not yet be put into practice.


    "Each time a new technological development is hailed the same question arises: is this liberation, or oppression in a new guise?" (3)

    "Preimplantation diagnosis ... offers the prospect of 'admission standards' for all fetuses produced by such techniques." (4)

    According to historical records, the first urine-based pregnancy test was available as early as 1350 B.C. in ancient Egypt. (5) The potentially pregnant women who urinated on wheat and barley seeds to determine the sex of their future babies could not have imagined the possibilities for planning, monitoring, and ending a pregnancy that are available in the twenty-first century. By the 1950s, the obstetrical field began to offer ultrasounds so that the womb became transparent. (6) Such tests became routine by the 1980s. (7) Also in the 1950s, physicians experimented with prenatal tests like amniocentesis, (8) or amnio, to determine potential infirmities with a fetus. (9) And, by the 1970s, such testing became routine for limited categories of women including those thirty-five or older at the time of delivery. (10)

    By 1973, when the Supreme Court decided that women have a constitutional right to an abortion, the availability of prenatal testing allowed women to gather information to help them decide whether to terminate a pregnancy or carry it to term. (11) Since 1976, the fertility industry has given women the opportunity to have their eggs fertilized ex vivo, or outside of the body, and then implanted in their bodies or that of a chosen surrogate through in-vitro fertilization (IVF). (12) New prenatal testing available earlier in the pregnancy, such as Chorionic Villus Sampling (CVS) which can be performed as early as ten weeks into a developing pregnancy, (13) has been available to pregnant women in recent decades as an alternative to second-trimester procedures like amnio. Since the early 1990s, women have been able to seek screening of their embryos through PGD to avoid implanting embryos with the potential for disease and, in some cases that will be discussed later in this Article, to actually increase the chances that a future child will be born with a characteristic, including a disability, shared by her parent or parents. (14)

    As technology provides greater opportunities for knowledge it also provides greater opportunities for manipulation and control. A woman no longer has to wait until her third or fourth month of pregnancy before amnio or CVS can be used to evaluate the health of her fetus. Now, in contrast to ultrasounds and other types of prenatal testing, PGD allows a future mother to decrease the odds of having a child with a disability or genetic disease by screening out embryos before she even becomes pregnant. (15) As two authors explain:

    PGD, whether by polar body or embryo biopsy, is actually a pre-pregnancy version of CVS and amniocentesis, the two procedures most widely used for genetically testing fetuses. CVS and amniocentesis are generally done after the ninth week post-fertilization, when the fetus is already established and developmentally advanced. PGD, as currently practiced, has the advantage that the embryo is never in the mother's oviduct or uterus prior to the diagnosis. (16) PGD can only be used in conjunction with IVF, (17) and requires that a healthcare provider harvest eggs from the woman seeking to be the mother, from a chosen egg source, (18) or from a future surrogate and then fertilize those eggs with the sperm of the intended father or a selected sperm source.

    PGD can reveal a variety of information and can be put to many uses. By extracting a single cell from a day old eight-cell embryo, a physician can determine whether the future child will be male or female, which is vital information when a genetic disease is sex linked. (19) PGD has also been successful when "applied to patients carrying chromosomal rearrangements, such as translocations, in which it has been proven to decrease the number of spontaneous abortions and prevent the birth of children affected with chromosome imbalances." (20) PGD may increase the rate of successful embryo implantations, decrease the risk...

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