Selective Procreation in Public and Private Law


This Article sets forth a new way to think about the ethics and law of choosing genetic traits in future children.  And it applies this framework of offspring to controversies over efforts to select offspring traits including sex, race, intelligence, and deafness using methods ranging from donor selection to embryo screening and gene editing.  I adapt the lens of ambivalence that Professor Robert Burt developed in the end-of-life context to illuminate an irreducible tension between the two values at stake in selective procreation.  I call these values “acceptance” of the limits found in the natural world and “control” over the limits that nature imposes.  The appeal of both resonates as much at life’s beginning as at its end.  The resulting ambivalence counsels a complex regime to govern selective procreation that mediates the extremes of compulsion and prohibition in ambiguous and even contradictory ways.  This regime would combine legal protections for offspring selection such as public subsidies, insurance mandates, tax breaks, and malpractice actions with measures to rein in that same practice as through sin taxes, counseling requirements, advertising limits, and prenatal “choice architecture.”



In his elegant and bracing meditation on medical ethics and legal culture, the late Robert Burt traced the legal and cultural history of our enduring struggles with controversies at the end of life.1  He considered examples including the death penalty and physician-assisted suicide for people whose time is short and suffering profound.2  Professor Burt revealed that medical advances transformed prevailing sentiments about death and dying in the United States.  These phenomena, once accepted as wicked and at any rate unruly forces, we now expect to command with new technologies and rational self-mastery.  If we cannot avoid mortality, we can manage its timing and circumstances.3

Professor Burt urged us to make moral space for ongoing conversation in ways that avoid the impulse toward the kind of certitude that would support clear-cut legal rules.  Implicit in his reflections on death and dying was a larger tension about the relationship between human beings and the natural world.  This is a tension between two values that we might think of as “acceptance” of whatever limits we confront in the natural world, as opposed to “control” over those limits that are imposed by nature, including our own.  The value of acceptance has its secular foundation in the Aristotelian conception of purpose in nature that confronts us as a repository of moral worth to be appreciated and affirmed.  The competing value of control finds expression in the Enlightenment conception of nature as a machine to be tamed and made of what we will for the sake of human interests.4

This transformation from acceptance to control that Burt witnessed at the end of life has reemerged at life’s beginning.  Until relatively recently, people who wanted to be parents had little if any say over any genetic traits and tendencies that their child might have.  What their child would look and act like was unavoidably left to the divine wisdom of cosmic fate or sheer randomness of genetic recombination.  A person might choose a mating partner with an eye to certain qualities in hopes of passing them along to future children.  Even the most discriminating romantic cannot, however, improve the chances of having a boy or girl.  And offspring traits like height, appearance, or intelligence are only partially hereditable, in ultimately speculative and unpredictable ways.  But our acceptance of these chances may soon give way to an expectation of control.

People could always date others with similar backgrounds with an eye to what any child they might have together would be or look like.  And few think that people who risk passing on a disadvantaging trait are obligated to try to produce a child who will not also be born with it.  On the other hand, few would tolerate parents who sought medical intervention to change a child they have no reason to think would be unhappy being born one sex or race or otherwise.  Our intuitions may be less clear, however, in a way that elicits the ambivalence Professor Burt articulated, when it comes to efforts by prospective parents to shape the genetic constitution of their offspring.

This Article critically appraises the law and ethics of selective procreation—the adoption of reproductive medicine and technology to pick and choose for genetic characteristics in future children.  I will give attention to prenatal efforts to control offspring traits beyond biological relatedness and the absence of disease.  The cultural significance of genetic ties and the medical challenges related to biological impairment raise questions that I have examined in other works and that are distinct from those underlying selective procreation more generally that I want to focus on here.5

I will set aside matters of selective abortion for similar reasons.  The ability to select for or against certain traits in future children no longer requires ending a pregnancy.  And any such effort to choose among possible children in utero is importantly limited by the personal stakes, social politics, and constitutional protections implicated by the termination of pregnancy.  Selective abortion raises distinct issues of bodily integrity and gender equality that space here does not permit engaging as I have elsewhere.6

Professor Burt never wrote about offspring selection.  For controversies as fraught with human stakes and moral controversy, however, he believed that law is less a mechanism for resolving social conflict than a process for channeling that conflict in constructive ways.  I will, in this spirit, not offer decisive answers, but try to advance a discourse, albeit one that gestures toward an accommodating approach to selective procreation.  My chief purpose, however, is to set forth what strike me as useful ways of thinking and talking about the ethical and legal implications of the most promising developments in offspring selection.

I.  Reproductive Technology

Prospective parents who reproduce the old-fashioned way do have limited ways they might try to select for particular traits in the children they would have.  Beyond the vagaries of matchmaking, pregnant women can screen the developing fetus for certain conditions before deciding whether to bring it to term.7  This kind of fetal testing used to require inserting large needles that carried some risk of pregnancy loss.  But procedures like amniocentesis will soon be replaced by blood tests that look at the fetal cells present in a woman’s own blood.  For now, these safe and noninvasive methods of prenatal testing can determine only a limited range of traits like sex, blood type, and chromosomal abnormalities like Down syndrome.8 And, importantly, the genetic contribution of most talents, capacities, and dispositions are limited, unknown, uncertain, or untestable.9

People today who turn to fertility specialists for help in having children regularly “enlist assisted reproductive technologies . . . to handpick from among available gamete donors or embryo arrays.”10  In remarking on these advances in a 2007 article, I predicted that prospective parents might one day forego the genetic randomness of sexual reproduction for increasingly powerful and affordable opportunities to choose for certain biological traits or dispositions in their future children.  “As advances in genetic science permit increasing prenatal control over offspring traits,” I suggested, “even fertile couples may choose to relocate procreation from the bedroom to the laboratory.”11  Impressive advances in reproductive medicine and technology make choices about offspring traits safer, cheaper, and more precise.  The decades ahead are likely to see advances in stem cell research, genomic screening, and even genetic engineering that promise opportunities for prenatal selection more dramatic by far.

Egg vendors and sperm banks do big business; they profile donors in great detail based on a dizzying range of characteristics.12  These range from eye, hair, and skin color to height, weight, and facial features (or even celebrity likeness);13 from self-described race, ethnicity, and religion to SAT scores, medical histories, and handwriting samples.14  Prospective parents might hope for a child who is taller or gifted with numbers, or less likely to have bucked teeth or color blindness.  One popular New York-based company even uses DNA from potential donors and recipients to screen “virtual” embryos for a suite of “genetic conditions in hypothetical offspring.”15  The company currently limits genetic analysis to diseases, but its patent includes testing for nonmedical traits including breast size, cleft chin, ear shape, emotional affect, eye color, face shape, handedness, mental acuity, motor coordination, social intelligence, and widow’s peak.16  However exhaustive a chosen donor’s profile may be, the extent to which any traits might manifest themselves in any resulting child at birth will be limited, in the same way as with assortative mating, to genetic influences and chance combinations with the other half of a genome.

Selecting among embryos enables a greater measure of control than among donors (or mates).  After in vitro fertilization (IVF) combines egg and sperm in a laboratory, preimplantation genetic diagnosis (PGD) can biopsy embryos by testing a single cell that contains all its DNA.17  PGD can test these embryos for certain genetic conditions, including late-onset diseases, cancer susceptibilities, or recessive disorders that might manifest only in future generations,18 as well as for the chances of initiating a successful pregnancy, providing a transplant match for a sick sibling in need,19 or even “identify[ing] an embryo with Down syndrome” to give a couple’s “Down-affected child a similar sibling.”20  The most common among nonmedical traits parents choose for is sex, often to diversify sons and daughters in a family.21  Embryo selection on the basis of factors like these can be performed, however, only among the handful of such embryos that parents are able to create given the steep price of IVF and painful process of ovarian stimulation and egg retrieval it requires of women.22

Two technological advances may overcome these difficulties.  First, in vitro gametogenesis (IVG) turns skin cells into the pluripotent stem cells that can be differentiated into embryos.23  IVG would make it possible to create far more embryos, and in a way that bypasses the adversities of egg harvesting.24  IVG could be used to create large numbers of embryos without the pain, risk, and expense of IVF.25  Second, whole genome sequencing could test those many more embryos for vastly more data, far beyond that for which PGD can test today, before deciding which to implant.26  Even perfecting these advances in stem cell research and genetic testing, however, would still limit selection among embryos with fixed genetic constitutions, in most cases using gametes from the would-be parents themselves.  Choosing possible offspring on this take-it-or-leave-it basis thus confines selective possibilities to those particular inheritances.  It does not, for example, enable modifying traits in a future child by adding or deleting genes to any individual embryo.

But Chinese researchers recently took strides toward this very sort of gene editing.27  Using a technique called CRISPR/Cas9, they were able to make prenatal changes in a single embryo.  They used embryos that were not viable, meaning they could not have developed into children.28  The “study underscores the challenges facing clinical applications of CRISPR/Cas9” for embryos capable of being born.29  But nothing in principle rules out safer and more accurate removal and replacement of genes in the future.30  Such gene editing would still be limited by imperfect understanding and incomplete predictive value of biology on the manifestation of traits.  Yet it is a far cry from picking a mate with desired qualities, playing classical music next to the belly of an expectant mother, or even selecting among genetically fixed gametes or embryos on the basis of sex or other testable traits.  The technology of selective procreation has already come a long way.  And it still has a lot farther to go.

II.  Legal Interventions

How should a pluralistic society like ours respond to diverse views and reasonable disagreements about advances in selective procreation?  Burt’s ambivalence approach counsels a complex regime of ambiguous or contradictory strategies that steer clear of compulsion and prohibition.

A.  Confusion and Extremes

Our current legal regime expresses doubts about selective procreation, but only in an oblique fashion.  Public law does not regulate prenatal screening or selection, for example, by restricting prenatal testing to medical conditions or “serious” impairments.  Elected officials hesitate to wade into divisive controversies that tend not to align neatly with established voting blocks.  With the exception of selective abortion bans in a handful of states, no government body restricts the ways in which parents might select among donors, gametes, or embryos for nonmedical traits like sex, race, or deafness.  And private organizations impose only advisory guidelines that lack mechanisms for meaningful enforcement.31

The dearth of regulation suggests that whatever the characteristic or however routine it becomes, offspring selection is at least justifiable enough to deflect any formal sanctions.  By contrast, the law of contracts, property, and torts provides no remedy when professionals upset the selection of offspring traits beyond health and heredity.  The private law does not count the harm of frustrated efforts to have a child of a certain sex, race, or otherwise as an injury because it incurs no unwanted touching, broken agreements, or damaged property.  And courts worry that to remedy thwarted offspring selection would validate “parents’ disparagement . . . of their child’s life.”32

While public law, in permitting selective procreation, implies there is nothing especially troubling about selective procreation, private law sends a different message that it deserves no social recognition.  Judicial refusal to afford after-the-fact protection when offspring selection goes wrong leaves people to pursue it at their own peril.  This public/private split appears to capture an ambivalence that permits the practice, but declines to affirm its worth.  The full landscape of public and private law together arrives at this middle-ground position, however, without giving reasons accordingly to countenance that practice without encouraging it.  More than a considered ambivalence, the present governance of selective procreation represents something more like nonengagement, whether on account of industry lobbying, political complexity, or the emergent stage of a new phenomenon.

Few regulatory options are in fact precluded as a matter of law.  At one extreme, the state could probably, if it wanted, even require parents to select certain traits before birth.33  Indeed, we already make parents enhance their children in less direct ways after birth by compelling basic health care and primary education.  If our commitment to early-age autonomy is important enough to mandate these practices, then it is not crazy to think that this same commitment might warrant similar directives of safe and effective prenatal interventions for general-purpose traits like resistance to disease or general cognitive functioning.34  Yet a liberal democracy that is already divided about forcing parents to vaccinate existing children will not easily abide reproductive interventions for future ones, at least if they target traits beyond the prevention of disease, or call for interventions much more intrusive or burdensome than the addition of fluoride to drinking water or folic acid to grain products.35

At the other extreme, government could apply civil fines or criminal punishment for donor and embryo selection in the way that some states have banned abortion on the basis of sex, race, or genetic anomalies linked to offspring impairment.36  The U.S. Supreme Court has never conditioned reproductive rights on people’s having particular reasons for exercising them.  Still Roe v. Wade37 declined to accept the proposition that a woman “is entitled to terminate her pregnancy . . . for whatever reason she alone chooses.”38  And lower courts have declined to hold that the woman’s right to decide whether to be pregnant with any potential child protects an interest in making that decision based on prenatal information about one with particular traits.39  Selective abortion restrictions before fetal viability likely impose unconstitutionally undue burdens on women’s privacy rights unless they can be shown, as they probably cannot, to serve a compelling interest against race or sex discrimination.  While abortion receives due process protections not currently afforded to gamete sorting or embryo screening, a similar ban on their testing or selection before implantation or even conception would press against broader expectations of reproductive liberty.  Then again, lumping access to contraception or abortion with various methods of selective procreation as such just presumes that these practices share salient values and interests.

B.  Reflective Ambivalence

Legal and social challenges thus complicate either compelling or prohibiting selective procreation.  Between these extremes, however, lies a number of intermediate approaches through which government could neither force nor forbid, but permit offspring selection by declining to punish doctors or patients for pursuing it.  Such permission could be implemented in ways that lean toward promotion or dissuasion.  As for support, the state could subsidize prenatal testing or choice in certain ways or for particular traits.  For example, it could use the public fisc, as we do for primary education, to fund selection among gametes or embryos for genetic conditions thought to facilitate the development of offspring more likely to become independently functioning adults and productive and responsible citizens.  Or government could offer tax breaks as it does for charitable giving to people who undertake such practices on their own; parents who select for this trait or against that one would be able to write such expenses off their taxes, or claim it as a credit or a deduction.  Or insurers could be required to cover procedures that enable parents to choose traits, the way that Medicaid and Children’s Health Insurance Program requires coverage for kids whose guardians cannot afford health insurance for them.40

In the other direction, two strategies emerge to authorize offspring selection without embracing it.  The first is to restrict offspring selection only in name, by enforcing such restrictions very weakly, if at all.  So the state would limit the practice as a formal matter, but not as a practical one.  An example is obsolete morals legislation against the likes of fornication, cursing in public, or playing cards on Sundays.  The second is for law to allow offspring selection, yet enact rules that register misgivings about its persistence.  Think of restrictions on late-term abortion or the withdrawal of life-sustaining treatment that risk “coarsen[ing] society” toward “vulnerable and innocent human life.”41  As between these two methods of registering ambivalence about selective procreation—under-enforcement and murky authorization—the latter makes more sense.  Trying to maintain restrictions in the books but not on the ground would likely prove unstable in its departure from legal norms about reproductive choice more generally.  The conspicuousness of such permission would make it hard to sustain surreptitious deviations against a background legal regime that more generally privileges individual freedom in matters of reproduction.42

Moral sanctions on selective procreation could take a number of forms.43  These strategies include, for example, (1) taxing donor or embryo selection for certain traits in a way that makes the practice more expensive;44 (2) urging parents to talk with genetic counselors about such decisions to better inform those decisions;45 (3) limiting commercial advertising for such practices to make them harder to find or at least less hyped;46 (4) incentivizing sperm banks and fertility clinics to structure the presentation of prenatal options among genetic traits in a way that prompts parents to review the profiles of a wider range of donors or embryos beyond just those that match their preexisting preferences,47 or even (5) partial parental licensing along a range of criteria and conditions that resembles the agency model that most states use for adoption today.48

Professor Burt argued that the law’s approach to deeply contested questions like these ought to reflect social understandings about the underlying conflict at issue.49  He worried that a legal regime that suppressed such deeply felt values would lead them to reemerge in unexpected and pernicious ways.50  For selective procreation, these range from resentments about missed chances for reproductive planning to unwanted pressures to control offspring traits that parents would rather leave to chance.51  There are other ways that private law might be able to more transparently accommodate competing sentiments about parental selection for offspring characteristics.

C.  The Case of Tort Law

Tort law could, for example, bar recovery for the wrongful thwarting of prenatal choice over offspring that are born at least healthy at birth and biologically connected to the prospective parents.  That is the principle the court affirmed in Harnicher v. University of Utah Medical Center,52 a case involving a couple in which the husband had “low sperm count and decreased sperm mobility.”53  Deeply wanting children, the couple pored over donor profiles to select one who “closely matched [his] physical characteristics” so that they could “believe and represent that any child born would be” genetically related to him.54  But triplets were born who looked nothing like the husband.  DNA tests confirmed that the medical center’s “mistaken use of the wrong donor had thwarted their intention” that he would be able to hold himself out as their “biological father.”55 The negligent use of sperm from a different-looking donor did not, however, deprive him of any “blood” relation he would have lacked even if the right donor had been used.56  His distinct grievance was that his children “do not look as much like [him] as different children might have.”57  This was about physical resemblance, not biological kinship.  “Exposure to the truth about one’s [genetic relation to one’s children] cannot be considered an injury and has never been a tort,” the majority held; “destruction of a fiction cannot be grounds for either malpractice or negligent infliction of emotional distress.”58

This kind of proceed-at-your-own-risk policy toward selective procreation suggests that the law tolerates but does not celebrate parents’ efforts to choose offspring who would, for example, share with them certain physical characteristics; those efforts, courts suggest, are permissible but not praiseworthy, less accepted than acceptable.  The categorical refusal to recognize any private law action for thwarted selection would leave parents who would choose for traits like sex, race, deafness, perfect pitch, or intelligence at the mercy of professional mistakes, however egregious.  This risk is not insignificant in a country like the United States in which public officials are unwilling, and private organizations unable, to require precautions to ensure accurate screening and identification of in vitro embryos for implantation and distinctive labeling of sperm and egg samples to prevent mix-ups.

Alternatively, courts could recognize suits for wrongfully thwarted offspring selection, yet grapple squarely with broader social or ethical reasons to resist legal compensation.  Courts might afford plaintiffs a cause of action for wrongfully thwarted efforts to have a girl to balance out the boys in their family, for example, or a tissue match for an existing child who might die without it.  In doing so, the law should take care to avoid even the appearance of asking parents who bring such suits to declare in open court that their child is an injury to them, or otherwise disparaging, if only implicitly, the existence of born children or the groups to which they belong.  One way to do so would be for courts to craft a cause of action that makes clear the child him- or herself is not the harm whose incidence calls for deterrence and compensation.  That injury is instead the wrongful denial of legitimate expectations of control over reproductive autonomy and its consequences for parental lives.59

In adjudicating such lawsuits, judges can fill the legislative silence about selective procreation by attending to the public policy concerns it poses.  Such policy analysis could forthrightly identify and examine these reasons to limit the private law remedies that might otherwise protect victims of negligent offspring selection.  Objectionable motives will be difficult to verify.  But that problem is not so much greater than other places in which our law—the motive to commit crime, for example—cares about why people do what they do.  And certain policy concerns may not depend on motives at all.  A judge might resist compensating thwarted selection for offspring deafness, for instance, on the ground that even benign intentions might still express an attitude or send a message of reproductive efforts that focus in the wrong way on the welfare of a future child.60  Others might balk at awarding damages for frustrated selection of offspring race, however defensible parents’ reasons, because it would give legal effect to the assumption that families should be monoracial and accordingly set apart by race.61

As for reining in runaway damages or making awards more predictable, strategies such as a fixed cap or workers’ compensation schedule might help adjudicate disputes over wrongfully frustrated prenatal selection in a way that sublimates disconcerting valuations of offspring traits.  Or, someone other than any public actor—like private insurance companies, or patients and providers contracting before selective procreation, or resolving any resulting disputes out of court thereafter—could determine what award amounts correspond to thwarted efforts to choose for particular traits.  Were insurance coverage made available, for example, payment could be a function of the extent to which prospective parents were willing to indemnify in advance against selection gone awry.

III.  Ethical Considerations

This vast array of regulatory alternatives provokes the question of how if at all our laws should govern selective procreation.  Under what circumstances is this practice cause for rejoice, despair, or something in between?  Spectators to this debate can be forgiven for thinking it pits zealot technophobes against intolerant eugenicists.  As to the first charge, however, there is nothing irreducibly reactionary or religious about reluctance to embrace offspring selection for sex or race or intelligence.  Nor are arguments in favor tantamount to ratifying genocide.  Philosopher Robert Nozick wrote in a footnote before the birth of the first “test tube” baby that a “[genetic] supermarket system has the great virtue that it involves no centralized decision fixing the future human type(s).”62  That parents would select nonmedical traits for their own offspring distinguishes individualized efforts from the hate and violence of Nazi eugenics as well as its more progressive American and Britain cousins popular in the early twentieth century that emphasized “procreative responsibility as a solution to social [ills].”63

A liberal society like ours easily slips into the assumption that leaving selective procreation in the hands of parents reflects no particular moral values.  A noninterventionist regime that protects free parental determinations even over far-reaching aspects of a child’s DNA is not, however, as neutral as it might seem.  It is not just that parents’ preferences for future children without certain traits implicate judgments about people who exist with those traits today.  The very commitment to offspring selection is itself not value-neutral: It privileges the value of parental control over the value of parental acceptance.  And reasonable people disagree about norms of control versus acceptance based on more than mere confusion or superstition.  Intense conflict among these larger ethical arguments in favor of and against selective procreation invites the lens of ambivalence through which Professor Burt argued law should channel that conflict more than resolve it.

A.  For Offspring Selection

John Robertson advocates protection of offspring selection within his broader case for procreative liberty.  He argues that a parent might “seek or avoid reproduction precisely because of the types of experiences, situations, and responsibilities that it will entail” in the course of raising the resulting child.64  Idiosyncratic trait preferences should not be prohibited or condemned just because they are not widely shared or appreciated in a society that may be unfamiliar with the experiences or perspectives of parents with different backgrounds and values.  Bioethicist Colin Gavaghan explains:

Pro­choice campaigners have been—rightly—sceptical of attempts to make value judgments about ‘good’ and ‘bad’ reasons for abortions, not least because they recognise that such decisions are invariably affected by factors not readily apparent to outsider observers. . . . The same . . . could be said of the kinds of reproductive decisions made possible . . . by genetic testing technologies.  They exist on a continuum, ranging from those with which it is easy to empathise, to those which strike an outside observer as trivial or even perverse.  But they can all be assumed to mean something to the person making them, to reflect her values or priorities or view of what it is that makes life important.65

The justification for selective procreation goes beyond just reproductive autonomy; it includes parental well-being too.  It is true that autonomy is important: People derive satisfaction from sensing that a critical part of parenting that they come to value is the product of their having chosen it.  But what matters at least as much is well-being: that is, how people's choices about offspring selection are expected to impact their parental experiences and understandings for the better.  The best reason to protect selective procreation is the connection between these two moral goods of autonomy and well-being in combination.

The Supreme Court has at times brought these dual justifications to bear in affirming protections for access to birth control or abortion to avoid procreation more generally.  Constitutional rights to prevent and terminate a pregnancy have found expression in the highly personal nature of those decisions and also their consequential character for the lives of the people who make them.  Eisenstadt v. Baird66 affirmed 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.”67  Whether to become a parent at all or again is among the most profound decisions that a person can make.  It implicates not only family life, but significant opportunity costs too.  As Justice Blackmun explained for the majority in Roe v. Wade:

Maternity, or additional offspring, may force upon the woman a distressful life and future.  Psychological harm may be imminent.  Mental and physical health may be taxed by child care.  There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.68

Medical ethicist Jeffrey R. Botkin has suggested that reproductive decisions based on offspring traits—not whether to have any child, but whether to have a child with particular traits—can be just as personal and important.69  Choices about whether a particular child is born sound in body and mind, whether he shares a biological feature of cultural or religious significance, or passes as genetically related to an infertile parent, for example, can also affect parental well-being in ways that resemble interests in deciding whether to have a child at all.  So what competing values run up against their freedom to choose the traits with which their child is born?

B.  Against Offspring Selection

Roe characterized the state’s interest in terms of protecting “potential life.”70  U.S. courts have in turn adopted this potential-life language in other contexts to capture four distinct types of concerns.71  I refer to these as: (1) “prenatal welfare” interests in preserving embryos or fetuses from being destroyed or impaired; (2) “postnatal welfare” interests in protecting children from prenatal conduct that harmed them after birth; (3) “social effects” interests in preventing tangible social ills such as effects from sex imbalance and poor public health; and (4) “social values” interests in promoting secular moral ideals from parental love to respect for the unborn.72  Prenatal welfare arguments are only at odds with certain methods of selective procreation.  Postnatal welfare arguments apply narrowly to manipulation through fetal surgery or gene editing that leaves a child worse off than he himself otherwise could have been.  Concerns about social effects rely on empirical guesswork that limits their purchase to conditions in which evidence of those effects warrants such speculation.  And social values claims about public morality are usually less forceful than concerns about more tangible public goods like health, safety, and welfare.

1.  Prenatal Welfare

The first concern is that choosing traits in future children can involve the destruction of embryos or fetuses.  This objection does not target offspring selection in the abstract.  It gives no reason for concern, for example, about genetic engineering an individual prenatal life in ways that do not harm it.  Nor would this prenatal welfare concern apply to selection among eggs or sperm or gamete donors.  (The Supreme Court has held that the state’s interest in potential life does not extend to sperm or eggs alone before combined into a single organism “postconception.”73)  This concern for prenatal welfare opposes offspring selection only when it would destroy embryos or fetuses.74

A different prenatal welfare argument might focus on the reasons for which embryos or fetuses are destroyed.  Those singled out because of their genetics deserve special protection, on this account, against being treated in a discriminatory manner “for being a minority of a certain type, for being of a certain culture, for being male or female.”75  Embryos and fetuses are not persons under the federal Constitution, however, and thus lack the claims that people enjoy not to be discriminated against based on race, sex, and similarly protected classes.  Not a single Supreme Court justice has suggested that the unborn are persons with rights to equal protection under the law.  Even a fully developed fetus does not have the mental capacity required for it to care about whether it is treated unfairly.  So prenatal discrimination does not frustrate any self-identity or sense of its own dignity that a fetus itself might enjoy.76

2.  Postnatal Welfare

The next potential life interest—postnatal welfare—concerns the health, safety, and well-being of individual offspring born alive after having been selected.  The Supreme Court held in Roe and has maintained ever since that only at birth does a person acquire legally protected individual interests.77  The state has a considerable interest that children are not seriously harmed by anyone’s wrongful conduct, including their parents’.  Applied to prenatal conduct, this rationale seeks to protect a born child from action taken before his birth.  This postnatal welfare justification applies only to ways of choosing offspring traits that alter a particular embryo or fetus.  A child who was subject as an embryo or fetus to gene editing or cellular surgery can complain, in a coherent conceptual sense, that he was harmed by having thereby been made sick or short or deaf, for example, or even by not having been made resistant to disease or given a few more inches or better hearing.  “Your attempts to choose my traits before I was born,” he could say, “harmed the same me that I was then and remain today.”

But no individual child can complain about having been made worse off by virtue of his parents having picked a particular donor or embryo that resulted in him.78  The only alternative to whatever prenatal selection led him to be born with some disadvantage is for some different possible child to have been created in his stead, and for him never to have existed at all—hardly a fate better for him than living with whatever condition his prenatal selection resulted in, provided that it is tolerable.79  So long as it is not worse for him than never having existed in the first place, the child is not in a good philosophical position to complain that his prenatal selection—to be less healthy or tall or intelligent—harmed him in the kind of way that opposition in the name of postnatal welfare supposes.80

3.  Social Effects

There is a different way to characterize the concern about the well-being of selected offspring that would escape this so-called nonidentity problem.  This argument could be reframed, not as a parens patriae interest in the well-being of any identifiable child, but as a public health interest in the welfare of society as a whole.  This is a broader concern that whichever children are born into the next generation are not born worse off—less healthy, for example—than other, different children might have been.  This kind of social effects interests implicate the consequences of combined reproductive choices on public goods such as health, safety, and welfare.  When facts substantiate the credibility of such threats—when, for example, a smallpox outbreak demands compulsory vaccinations—these interests can be strong enough that “the liberty secured by the Fourteenth Amendment” may at times be restricted in “reasonable” ways “as the safety of the general public may demand.”81  This kind of concern is probably overstated for selective procreation.  It seems unlikely more than a fraction of parents would set out to have offspring with debilitating conditions.  If few would opt for those conditions in children, the population-wide impact of those collective choices may be too small to warrant intrusive restrictions for the sake of public health.

We might try to save this social effects argument by shifting the focus from public health to welfare, thereby expanding the prenatally selectable traits that might contribute to the sort of broadscale harm worth avoiding.  We might along these lines worry that parents would select not only for disorders that result in offspring who fall below some norm of healthy functioning, but also for abilities or talents—above and beyond sound body and mind—whose collective failure to select for prenatally might make the resulting cohort less capable or productive.  This line of reasoning invites a baseline problem, however, that could morally obligate parents, as some bioethicists have argued, to select a child whose life can be expected, beyond avoiding genetic affliction, to go as well as possible.82  Those who are loath to impose such obligations on parents will likely find such implications too unappealing to accept this reworking of the postnatal welfare objection in terms of its social effects.

A related social effects concern is that permissive selective procreation could, ironically, constrain meaningful freedom of choice over offspring traits.  Again, this could apply to either genetic disorders or nonmedical attributes.  As for diseases or disabilities, it seems plausible to me that as prenatal testing for those conditions becomes routine, selection against them might be expected, and failure to do so scorned.  Parents who fear that they would be blamed for having children with those conditions, or that they would not be accepted or treated with compassion, may feel forced to override personal preferences or deeply held beliefs opposed to selective procreation and, even so, pick among gametes or choose among embryos.  This kind of subtle or soft coercion might also apply to selection for the contributions to nonmedical traits like height, strength, or intelligence.  If genetic science developed reliable knowledge, accurate testing, and predictive value of such qualities, their selection could plausibly offer resulting offspring relative social or economic benefits.  Knowing that other parents are selecting these traits might drive parents disinclined to exert prenatal control to keep up with the neighbors or risk putting their kids behind from the start.83  Routine offspring selection could usher a more competitive or less accommodating world that constrains choice by transforming the challenges we treat as social problems that demand political solutions into genetic problems to be cured by reproductive medicine.84  There may be ways of addressing this concern short of banning offspring selection or providing a remedy if such efforts are negligently thwarted.  Society could at least try education or counseling to combat exaggerated or discriminatory attitudes as well as public assistance to help support families who have children born with special hardships or setbacks.85

I will just sketch three social effects arguments that provide lesser grounds to restrict selective procreation in this country.  First is the risk that allowing prenatal sex selection could lead to disproportionate ratios of males and females in ways that destabilize mating patterns and family structures.  This is a real problem in places like China and India that prize male over female children.  There is little demand for sex selection in the United States, however, even to balance the number of boys and girls in a family, and the preference tends to lean toward girls.86  In the absence of evidence about routine or skewed sex selection in this country, it will probably be enough here to monitor sex ratios at birth for departures from the biological norm, and then, if necessary, consider limiting selection to parents who already have multiple kids of the other sex.87

Second is the concern that selection for traits such as height—valued to give people an edge over others more than in its own right—will prove self-defeating if pursued collectively: As some become taller, others become shorter, so none reap the desired advantage, while the genetic arms race takes its toll on all.  But height may be unique in this sense; most traits that parents might opt for to position their offspring with a leg up—better memory, fast-twitch muscles, or perfect pitch, for example—also confer noncompetitive benefits with considerable intrinsic value associated with the goods of intellectual, athletic, and musical activities.88  The absolute goods that having such traits often facilitate in turn complicate the objection that selective procreation will be counterproductive.

Third, will prenatal choice for talents and abilities by parents who are able to afford it exacerbate social and economic disparities?  A genetically enhanced nobility that divides haves from have-nots is a chilling prospect indeed.89  But the uncertainty of genetic variation and limits of reproductive technology make this biologically stratified future unlikely, at least for many generations.  More likely than superhumans, as Hank Greely predicts, are ones “who do not have certain genetic diseases, who have a lower risk of getting other diseases, who have cosmetic features preferred by their parents, and who may have some marginal improvements in their behavioral traits.”90  Inequities could also be addressed without restricting access to selective procreation by subsidizing its broader availability or by taxing its use and using that revenue to support the unenhanced.91

4.  Social Values

The government’s social values interest involves promoting widely shared, if still controversial, ideals or attitudes that the regulation of offspring selection can reflect or reinforce.  These include the unconditional nature of parental love or broader acceptance of those born with traits that are abnormal or different.92  With the exception of constitutionally empowered values like equal treatment and respect for protected classes, public morality tends to provide weaker grounds for regulation than empirically substantiated social effects or postnatal welfare forms of argument about the public health or welfare.  The force of social values interests is limited by two factors: first, that reasonable people disagree not just how to achieve the moral and cultural ideals at stake, but also about whether those ideals are public goods at all; second, that the boundaries of social values interests are hard to measure or demarcate render them susceptible to pretext or misuse.  Standing alone, these interests cannot justify burdensome restrictions on offspring selection, even as they may well constitute legitimate rationales for regulating in less intrusive ways.

One social values argument is that selective procreation to prevent disabling conditions demeans people with disabilities.93  Their history of being systematically “shunted aside, hidden, and ignored”94 leaves many people understandably insulted by efforts to prevent the existence of future people because they would have disabilities like theirs.  Even if prospective parents prefer to avoid offspring disability only because they value the capacities or experiences that such conditions can make more challenging, it is reasonable to think a person with the disability may feel disrespected, as if the condition they identify with is less an acceptable form of human diversity than an affliction to be repaired or prevented.95  One way to “mut[e] the expressive significance of prenatal testing for people with disabilities,” short of restricting choice, is not to draw lines in medical practice or law that declare what counts as worthy traits for which to select offspring.96  Parents’ decisions might accordingly be understood to reflect their own personal preferences alone rather than state-sanctioned judgments.  This kind of comprehensive disclosure regime would, however, require “additional professional personnel, mechanisms to pay for the expanded services, and marked improvements in provider education to permit accurate patient counseling.”97

Another social values concern is that treating selective procreation as a matter of entitlement undermines the proper relationship between parents and children.98  This objection is that offspring selection for traits beyond health and heredity erodes the posture of acceptance that prospective parents should adopt toward a future child.  When people contemplate assuming the parental role, on this account, they should be open to however a child’s nature might emerge or unfold.  Many people want a child born free of disease because they think themselves financially or temperamentally ill-equipped to cope with raising a child born with that condition.  Yet it is not so much less accommodating for parents to want a child with, say, perfect pitch, if their reason is a belief that such musical ability enriches life and a desire for the child to be able to experience that joy.  As with the claim about disrespect to people with disabilities, this concern about parental openness has merit.  But the diffuseness and contestability of any such social value makes the interest in promoting it too weak to support formal restrictions.  That interest is better addressed by more forgiving moral sanctions.99


Almost forty years ago, Professor Burt closed his first book on law and medicine with the reflection that “[r]ational ordering can be approached only through engagement among strangers, through persistent attempts to share thought in the face of mystery, of alienation.”100  It was this alertness to ambivalence in the face of bioethical controversy that led Burt in a later book to praise Learned Hand’s “conception of ‘liberty [as] the spirit which is not too sure that it is right’ and his understanding that, in addressing the status of death, this spirit demanded the rejection of any moral certainty, that ‘the outcome must . . . be tentative.’”[101]  I have argued that a similar kind of ambivalence marks much in our confrontation with selective procreation.

When people enlist medical technology to choose children of particular types—with certain traits, or without others—powerful claims to reproductive autonomy and individual well-being encounter a range of ethical arguments regarding prenatal welfare, postnatal welfare, social values, and social effects.  In canvassing this landscape of most robust ethical arguments in favor of and against selective procreation, I have suggested that the legal regime best suited to resolve the disputes that arise out of such conflicts at the beginning of life should embrace rather than ignore these inescapable tensions.  The resulting permission of offspring selection should still leave space to disapprove certain instantiations of it.  The frank embodiment of moral uncertainty and ongoing dialogue in the law is just what Burt advised to channel controversies at the other end of life.

[1].      Robert Burt, the Alexander M. Bickel Professor Emeritus of Law at Yale University, was a towering voice of rare wisdom and warmth on the deepest controversies in medicine, law, and religion.  Fundamentally, he taught that only respectful engagement on equal terms could legitimize claims of authority over others, whether by doctors, judges, or even God.

[2].      See generally [small-caps]Robert A. Burt, Death Is That Man Taking Names: Intersections of American Medicine, Law, and Culture[end-small-caps] (2002).

[3].      See id. at 170.

[4].      See Dov Fox, Retracing Liberalism and Remaking Nature: Designer Children, Research Embryos, and Featherless Chickens, 24 [small-caps]Bioethics[end-small-caps] 170, 171–73 (2010).

[5].      On the interest of having children who are biologically related to one or both parents, see Dov Fox, Paying for Particulars in People-To-Be: Commercialisation, Commodification, and Commensurability in Human Reproduction, 34 [small-caps]J. Med. Ethics[end-small-caps] 162, 165 (2008) [hereinafter Fox, Paying for Particulars], and Dov Fox, Silver Spoons and Golden Genes: Genetic Engineering and the Egalitarian Ethos, 33 [small-caps]Am. J.L. & Med.[end-small-caps] 567, 594–95 (2007) [hereinafter Fox, Silver Spoons].  And on the interest in having children who would be born without a genetic impairment, see Dov Fox, Luck, Genes, Equality, 35 [small-caps]J.L. Med. & Ethics[end-small-caps] 712, 713 (2007) [hereinafter Fox, Luck, Genes, Equality], and Dov Fox, Parental Attention Deficit Disorder, 25 [small-caps]J. Applied Phil.[end-small-caps] 246, 253–54 (2008) [hereafter Dov Fox, Parental Attention].

[6].      See, e.g., Dov Fox, Interest Creep, 82 [small-caps]Geo. Wash. L. Rev.[end-small-caps] 273, 325–35 (2014); Dov Fox & Christopher L. Griffin, Jr., Disability-Selective Abortion and the Americans With Disabilities Act, 2009 [small-caps]Utah L. Rev.[end-small-caps] 845, 893–95 (2009).

[7].      See Fritz Fuchs & Povl Riis, Antenatal Sex Determination, 177 [small-caps]Nature[end-small-caps] 330 (1956).

[8].      See Audrey R. Chapman & Peter A. Benn, Noninvasive Prenatal Testing for Early Sex Identification: A Few Benefits and Many Concerns, 56 [small-caps]Persp. Biology & Med.[end-small-caps] 530, 532 (2013).

[9].      See Fox, Luck, Genes, Equality, supra note 4, at 714.

[10].     Fox, Silver Spoons, supra note 4, at 567.

[11].     Id. at 567–68.

[12].     See [small-caps]Rene Almeling, Sex Cells: The Medical Market for Eggs and Sperm[end-small-caps] 119 (2011).

[13].     Donor Look-a-Likes, [small-caps]Cal. Cryobank[end-small-caps], [].

[14].     See [small-caps]Naomi Cahn, The New Kinship: Constructing Donor-Conceived Families[end-small-caps] 51 (2013).

[15].     Informed Consent for GenePeeks, [small-caps]GenePeeks[end-small-caps], [].

[16].     Gamete Donor Selection Based on Genetic Calculations, [small-caps]Google[end-small-caps], [].  “London Sperm Bank, the UK’s largest with over 10,000 vials of sperm” has even “released a Tinder-esque mobile app that lets women filter potential sperm donors based on traits like ethnicity, occupation, personality type, eye color, and more.”  Ananya Bhattacharya, Tinder for Dads: Swipe Right for a Sperm Donor, [small-caps]Quartz [end-small-caps](Sept. 27, 2016), [].

[17].     See Gautam Naik, A Baby, Please. Blond, Freckles—Hold the Colic, [small-caps]Wall Street J.[end-small-caps], Feb. 12, 2009, at A10.

[18].     See Alison Lashwood & Genevieve Say, Complex Issues in PGD, in [small-caps]Preimplantation Genetic Diagnosis in Clinical Practice[end-small-caps], 31, 31–38 (Tarek El-Toukhy & ‎Peter Braude eds., 2013).

[19].     See Susan M. Wolf et al., Using Preimplantation Genetic Diagnosis to Create a Stem Cell Donor, 31 [small-caps]J.L. Med. & Ethics[end-small-caps] 327, 328 (2003).

[20].     Melissa Healy, Fertility’s New Frontier; Advanced Genetic Screening Could Help Lead to the Birth of a Healthy Baby, [small-caps]L.A. Times[end-small-caps], July 21, 2003, at F1.

[21].     See Susannah Baruch et al., Genetic Testing of Embryos: Practices and Perspectives of U.S. In Vitro Fertilization Clinics, 89 [small-caps]Fertility & Sterility[end-small-caps] 1053, 1056 (2008) (“Forty-two percent of [surveyed fertility] clinics [in the United States] offering PGD have provided PGD for nonmedical sex selection.”).

[22].     See Jaime S. King, Predicting Probability: Regulating the Future of Preimplantation Genetic Screening, 8 [small-caps]Yale J. Health Pol’y, L. & Ethics[end-small-caps] 283, 297 (2008).

[23].     See Karim Nayernia et al., In Vitro-Differentiated Embryonic Stem Cells Give Rise to Male Gametes That Can Generate Offspring Mice, 11 [small-caps]Developmental Cell[end-small-caps] 125, 126 (2006).

[24].     See César Palacios-González et al., Multiplex Parenting: IVG and the Generations to Come, 40[small-caps] J. Med. Ethics [end-small-caps]752, 753 (2014).

[25].     See Sonia M. Suter, In Vitro Gametogenesis: Just Another Way to Have a Baby?, [small-caps]J.L. & Biosciences [end-small-caps]87, 91, 94 (2015).

[26].     See Raf Winand et al., In vitro Screening of Embryos by Whole-Genome Sequencing: Now, in the Future or Never? 29 [small-caps]Human Repro.[end-small-caps] 842, 847, 850 (2014).

[27].     Puping Liang et al., CRISPR/Cas9-Mediated Gene Editing in Human Tripronuclear Zygotes, 6 [small-caps]Protein & Cell[end-small-caps] 363 (2015).

[28].     See id. at 366.

[29].     Id. at 368.

[30].     Patrick D. Hsu et al., Development and Applications of CRISPR-Cas9 for Genome Engineering, 157 [small-caps]Cell [end-small-caps]1262, 1267, 1271 (2014).

[31].     Specialists are still free to refuse and professional norms do not require doctors to disclose every prenatally testable trait, especially as the risks of such conditions get lower or less apparent, or their effects become milder or would manifest later in life.

[32].     Andrews v. Keltz, 38 N.Y.S.2d 363, 369 (N.Y. 2007).

[33].     Countries like Cyprus and Taiwan compel prenatal screening and selection for certain genetic conditions.  Dov Fox, Prenatal Screening Policy in International Perspective: Lessons From Israel, Cyprus, Taiwan, China, and Singapore, 9 [small-caps]Yale J. Health Pol’y L. & Ethics[end-small-caps] 471, 476–77 (2009).

[34].     Dov Fox, The Illiberality of ‘Liberal Eugenics’, 20 [small-caps]Ratio [end-small-caps]1, 12–14 (2007).

[35].     See id. at 6.

[36].     See Fox, supra note 5, at 325–26.

[37].     410 U.S. 113 (1973).

[38].     Id. at 153.

[39].     See, e.g., Etkind v. Suarez, 519 S.E.2d 210, 213–15 (Ga. 1999); Dansby v. Thomas Jefferson Univ. Hosp., 623 A.2d 816, 818-19 (Pa. Super. Ct. 1993).

[40].     See [small-caps]Henry T. Greeley, The End of Sex and the Future of Human Reproduction[end-small-caps] 137–52 (2016) (predicting that insurers and public financing programs will provide advances in embryo selection to prospective parents for free because of their promise to lower health care costs).

[41].     Gonzales v. Carhart, 550 U.S. 124, 157 (2007) (quoting Congressional Findings).

[42].     See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 875 (1992) (affirming constitutional right to decide “whether to bear or beget a child” (citing Eisenstadt v. Baird, 405 U.S. 438, 453 (1972))).

[43].     See Fox, Silver Spoons, supra note 4, at 571.

[44].     Dov Fox, Racial Classification in Assisted Reproduction, 118 [small-caps]Yale L.J.[end-small-caps] 1844, 1890 (2009).

[45].     See Fox & Griffin, supra note 5, at 891–92.

[46].     See Fox, Paying for Particulars, supra note 4, at 165–66.

[47].     See Dov Fox, Choosing Your Child’s Race, 22 [small-caps]Hastings Women’s L.J.[end-small-caps] 3, 13–15 (2011).

[48].     See Howard B. Eisenberg, A “Modest” Proposal: State Licensing of Parents, 26 [small-caps]Conn. L. Rev.[end-small-caps] 1415 (1994).

[49].     See Burt, supra note 1, at 5.

[50].     See id. at 157–58.

[51].     For discussion of these concerns and others like them, see Dov Fox, Safety, Efficacy, and Authenticity: The Gap Between Ethics and Law in FDA Decision-Making, 2005 [small-caps]Mich. St. L. Rev. [end-small-caps]1135, 1148–51 (2005).

[52].     962 P.2d 67 (Utah 1998).

[53].     Id. at 68.

[54].     Id.

[55].     Id.

[56].     See id. at 73.

[57].     Id. at 72.

[58].     Id.  The dissenting judge replied that but for the “mixing [of] sperm from the wrong donor,” that fiction “would simply have been an ‘alternative reality’ for the Harnicher family.”  Id. at 74 (Durham, J., dissenting).

[59].     See Dov Fox, Reproductive Negligence, 117 [small-caps]Colum. L. Rev. [end-small-caps](forthcoming 2017).

[60].     See id. for a discussion of the merits, contours, and limits of this concern.

[61].     See Dov Fox, Reproducing Race, [small-caps]Huffington Post[end-small-caps] (Dec. 6, 2014), [].

[62].     [small-caps]Robert Nozick, Anarchy, State, and Utopia[end-small-caps] 315 n. (1974).

[63].     Fox, supra note 33, at 2.

[64].     John A. Robertson, Genetic Selection of Offspring Characteristics, 76 [small-caps]B.U. L. Rev. [end-small-caps]421, 427 (1996).

[65].     [small-caps]Colin Gavaghan, Defending the Genetic Supermarket: Law and Ethics of Selecting the Next Generation[end-small-caps] 22 (Sheila A.M. McLean ed., 2007).

[66].     405 U.S. 438 (1972).

[67].     Id. at 453.

[68].     Roe v. Wade, 410 U.S. 113, 153 (1973).

[69].     Jeffrey R. Botkin, Fetal Privacy and Confidentiality, 25 [small-caps]Hastings Ctr. Rep.[end-small-caps] 32, 37–38 (1995).

[70].     Roe, 405 U.S. at 162.

[71].     Fox, supra note 6, at 294–316.

[72].     See Dov Fox, The State’s Interest in Potential Life, 43 [small-caps]J.L. Med. & Ethics [end-small-caps]345, 347–52 (2015).

[73].     Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 859, 871 (1992).

[74].     Roe and Casey held that this interest in preserving the unborn grows over the course of prenatal development, suggesting that the interest is much weaker as it applies to saving early embryos than later fetuses.  See id. at 869; Roe, 410 U.S. at 162–63.

[75].     Tessa Muggeridge, Brewer Signs Bill to Ban Race- and Sex-Selection Abortions, [small-caps]Tucson Sentinel [end-small-caps](Mar. 31, 2011, 5:34 AM), [] (quoting Arizona State Senator Nancy Barto).

[76].     See Dov Fox, The Flawed Logic of Prenatal Discrimination, [small-caps]Huffington Post: The Blog[end-small-caps] (Apr. 1, 2013, 9:32 AM), [].

[77].     See Roe, 410 U.S. at 161–62.

[78].     See Fox, Luck, Genes, Equality, supra note 4, at 714.

[79].     Philosopher Derek Parfit called this metaphysical complication with complaints about prenatal selection the nonidentity problem.  [small-caps]Derek Parfit, Reasons and Persons[end-small-caps] 351–79 (1984).

[80].     See I. Glenn Cohen, Regulating Reproduction: The Problem With Best Interests, 96 [small-caps]Minn. L. Rev.[end-small-caps] 423 (2011).

[81].     Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905).

[82].     See Cohen, supra note 77, at 497; see also Julian Savulescu & Guy Kahane, The Moral Obligation to Create Children With the Best Chance of the Best Life, 23 [small-caps]Bioethics [end-small-caps]274, 276 (2008).

[83].     [small-caps]Bill McKibben, Enough: Staying Human in an Engineered Age[end-small-caps] 33 (2003).

[84].     Fox, Silver Spoons, supra note 4, at 611.

[85].     See Adrienne Asch, Reproductive Technology and Disability, in [small-caps]Reproductive Laws for the 1990s [end-small-caps]69, 87–88 (Sherrill Cohen & Nadine Taub eds., 1989).  On the limitations of such proposals, see Fox, Silver Spoons, supra note 4, at 613–15.

[86].     See Jasmeet Sidhu, How to Buy a Daughter, [small-caps]Slate[end-small-caps] (Sept. 14, 2012, 3:30 AM), [].

[87].     See Fox, supra note 5, at 330–31.

[88].     See Fox, supra note 51, at 1148–49, 1154.

[89].     See [small-caps]Maxwell J. Mehlman, Wondergenes: Genetic Enhancement and the Future of Society [end-small-caps]120, 184, 196 (2003) (envisioning a reproductively advanced future in which an advantaged nobility enjoys not only social and economic but biological ascendancy).

[90].     Greely, supra note 39, at 238.

[91].     See Fox, Luck, Genes, Equality, supra note 4, at 723.

[92].     I should at the outset head off a misguided reason thought to invalidate such claims: that they are unconstitutional efforts to regulate religion.  There is nothing illegitimate about there being a spiritual dimension to social values so long as they can also be explained in terms of what is good for society in the here and now.  See Dov Fox, Religion and the Unborn Under the First Amendment, in [small-caps]Law, Religion, and Health in America[end-small-caps] (I. Glenn Cohen et al. eds., forthcoming 2017).

[93].     See Fox, supra note 32, at 478–81.

[94].     Alexander v. Choate, 469 U.S. 287, 296 (1985).

[95].     See Erik Parens & Adrienne Asch, Part One: Overview and Context of the Project, in [small-caps]Prenatal Testing and Disability Rights [end-small-caps]15 (Erik Parens & Adrienne Asch eds., 2000).

[96].     David Wasserman, A Choice of Evils in Prenatal Testing, 30 [small-caps]Fla. St. U. L. Rev.[end-small-caps] 295, 300–01 (2003).

[97].     See Jeffrey R. Botkin, Prenatal Diagnosis and the Selection, 30 [small-caps]Fla. St. U. L. Rev.[end-small-caps] 265, 285–87 (2003).

[98].     Some have argued that parental norms do not apply to selective procreation.  “[B]efore a particular [child] whom we love exists,” philosopher Frances M. Kamm has argued, there is no reason to worry about selecting “the characteristics we would like to have in [that child] and that we think it is best for [him or her] to have.”  Frances M. Kamm, Is There a Problem With Enhancement?, 5 [small-caps]Am. J. Bioethics [end-small-caps]5, 10 (2005).  I would respond that the love parents have for the person who comes to occupy the role of their child can intelligibly take hold before they know anything about the sort of person that child will be, and whether the traits that he comes to have are ones they ever wished for.  Before a child is born or even conceived, parental love need not be conditioned on more particular features whose absence could justify forsaking that love anywhere nearly as readily as companions or spouses can dissolve adult friendships or marriages.  See Fox, Parental Attention, supra note 4, at 258. This argument about parental acceptance should not suppose that people who opt for offspring with nonmedical traits are any less likely to love a child unconditionally, or that the child created with certain such specifications in mind is any less likely to appreciate the unconditional character of a parent’s love.  Id. at 256–57.  For discussion mediating between these competing views, see I. Glenn Cohen, What (If Anything) Is Wrong With Human Enhancement? What (If Anything) Is Right With It?, 49 [small-caps]Tulsa L. Rev.[end-small-caps] 645, 669–72 (2014).

[99].     See supra text accompanying notes 43–48.

[100].   [small-caps]Robert A. Burt, Taking Care of Strangers: The Rule of Law in Doctor-Patient Relations [end-small-caps]173 (1979).

[101].   Burt, supra note 1, at 184 (quoting Repouille v. United States, 165 F.2d 152, 153 (2d. Cir. 1947)).

About the Author

Associate Professor of Law and Director of the Center for Health Law Policy & Bioethics, University of San Diego School of Law. Thanks to Jennifer Mnookin and Richard Re for inviting me to consider the legal implications of advances in biotechnology, to USD law students Thang Hoang and Veneeta Jaswal for outstanding research assistance on these questions, and to colleagues Walt Heiser, Paul Horton, Bert Lazerow, Miranda McGowan, Maimon Schwarzschild, and Chris Wonnell for valuable conversations. This Article is dedicated to the memory of my teacher and mentor Bo Burt, who so shaped my thinking about what we owe to fellow citizens and about what it means to live well together.

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