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«Fordham Urban Law Journal Volume 30, Issue 1 2002 Article 4 Assisted Reproductive Technologies and the Constitution Carl H. Coleman∗ ∗ Seton Hall ...»

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Fordham Urban Law Journal

Volume 30, Issue 1 2002 Article 4

Assisted Reproductive Technologies and the

Constitution

Carl H. Coleman∗

Seton Hall Law School

Copyright c 2002 by the authors. Fordham Urban Law Journal is produced by The Berkeley

Electronic Press (bepress). http://ir.lawnet.fordham.edu/ulj

Assisted Reproductive Technologies and the

Constitution∗

Carl H. Coleman

Abstract

This Article discusses potential policies regarding assisted reproductive technologies (ARTs).

The initial question is whether ARTs should be viewed as private matters or as issues that affect overall social good. The author explains that this question may be answered by the Supreme Court’s interpretation of the principles of procreative liberty. He then examines Supreme Court decisions regarding reproductive rights, including the unstated right to bear children as well as abortion rights. He extrapolates from these cases the Court’s possible views on ARTs and what constitutional protections should be afforded reproductive technologies.

KEYWORDS: ethics, medicine, science, reproduction, assisted reproductive technologies ∗ Associate Professor and Associate Director, Health Law & Policy Program, Seton Hall Law School. B.S.F.S., Georgetown University; A.M., J.D., Harvard University. I would like to thank Rachel Godsil for helpful comments on a draft of this article, and Jenny-Brooke Condon for excellent research assistance.

ASSISTED REPRODUCTIVE TECHNOLOGIES

AND THE CONSTITUTION

Carl H. Coleman* 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.' 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 * Associate Professor and Associate Director, Health Law & Policy Program, Seton Hall Law School. B.S.F.S., Georgetown University; A.M., J.D., Harvard University. I would like to thank Rachel Godsil for helpful comments on a draft of this article, and Jenny-Brooke Condon for excellent research assistance.

1. Some commentators believe that the characterization of infertility as a disease has had negative consequences, as it creates a societal expectation that people with infertility should pursue medical treatment. As a result, infertile couples may be considered abnormal if they choose to remain childless. See, e.g., Hilde Lindemann Nelson, Dethroning Choice: Analogy, Personhood, and the New Reproductive Technologies, 23 J. L. MED. & ETHICS 129, 133 (1995) ("Medicalizing subfertility with the help of procreative technologies sets up norms: bodily norms, behavioral norms, ethical norms.").

2. See N.Y. STATE TASK FORCE ON LIFE AND THE LAW, ASSISTED REPRODUCTIVE TECHNOLOGIES: ANALYSIS AND RECOMMENDATIONS FOR PUBLIC POLICY 74

(1998).

3. See R.J. Paulson et al., Successful Pregnancy in a 63-Year Old Woman, 67 FERTILITY & STERILITY 949, 949-51 (1997). The ability to freeze eggs would further expand reproductive options for postmenopausal women, as young women would have the option of freezing their own eggs to use later in life. While oocyte cryopreservation is still considered experimental, researchers have reported a few successful pregnancies following fertilization of previously-frozen eggs. K.L. Winslow et al., Oocyte Cryopreservation:A Three Year Follow Up of Sixteen Births, 76 FERTILITY & STERILITY S120, S120-21 (2001). Despite the limited evidence of effectiveness, one ART program in California recently began offering oocyte cryopreservation, for a fee, to "women in their 30s who are busy in their professional lives or aren't sure they'll get married anytime soon." Amy Dockser Marcus, Fertility Clinic Set to Open First Commercial Egg Bank, WALL ST. J., Apr. 17, 2002, at D1.

[Vol. XXX

FORDHAM URBAN LAW JOURNAL

that4 even death need not mark the end to one's reproductive life.

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 diseaserelated 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,





4. See generally Anne Reichman Schiff, Arising from the Dead: Challenges of Posthumous Procreation,75 N.C. L. REV. 901, 902-03 (1997) (discussing the ethical and legal issues surrounding the posthumous use of reproductive material).

5. Y. Verlinsky et al., Preimplantation Genetic Diagnosis - An Integral Part of Assisted Reproduction, 17 J. AssISTED REPROD. & GENETICS 75, 76 (2000).

6. See John A. Robertson, Genetic Selection of Offspring Characteristics,76 B.U.

L. REV. 421, 422 (1996) [hereinafter Robertson, Genetic Selection] (discussing trait selection technologies); John A. Robertson, PreconceptionGender Selection, 1 AM. J.

BIOETHICS 2, 2 (2001) [hereinafter Robertson, Preconception Gender Selection].

7. See generally Maxwell J. Mehlman, The Law of Above Averages: Leveling the New Genetic Enhancement Playing Field, 85 IowA L. REV. 517, 524-26 (2000) (discussing the social implications of "genetic enhancements").

8. Nat'l Bioethics Advisory Comm'n, Cloning Human Beings 13 (1997), available The at http://www.georgetown.edu/research/nrcbl/nbac/pubs/cloningl/cloning.pdf.

child would also receive a small amount of mitochondrial DNA from the source of the egg used in the cloning procedure. Id. at 20.

9. Helen M. Alvare, Catholic Teaching and the Law Concerning the New Reproductive Technologies, 30 FORDHAM URB. L.J. 107, 111-13 (2002).

2002] ASSISTED REPRODUCTIVE TECHNOLOGIES 59 others maintained that ARTs offer important benefits to infertile couples, particularly those whose religious beliefs preclude legal adoption. 1 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. 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

10. Hossam E. Fadel, Assisted Reproductive Technologies: An Islamic Perspective, 25 J. ISLAMIC MED. Ass'N 14, 17-18 (1993). Although Islam permits adoption and views it as a charitable act, adopted children are not "legally considered as one's own children." Id. at 18.

11. Cynthia B. Cohen, ProtestantPerspectives on the Uses of the New Reproductive Technologies, 30 FORDHAM URB. L.J. 135, 141 (2002).

12. Id.

13. Id.

14. See George Annas, Genism, Racism, and the Prospect of Genetic Genocide 5-6 (Sept. 3, 2001) (article prepared for presentation at UNESCO 21st Century Talks: The New Aspects of Racism in the Age of Globalization and the Gene Revolution at the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban, South Africa, Sept. 3, 2001), at http://www.bumc.bu.edu/www/ sph/lw/pvl/genism.pdf (calling for an international prohibition on "species-altering techniques and species-endangering experiments," including cloning and certain types of genetic alteration of embryos).

15. An example of such an approach is the federal law requiring all ART programs to report their success rates annually to the Centers for Disease Control and Prevention ("CDC"), and requiring the CDC to make the information available to the public. 42 U.S.C.A. §§ 263a-1, 263a-5 (2001).

FORDHAM URBAN LAW JOURNAL [Vol. XXX enhancing the quality of services by ART practitioners, 6 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.' 8 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,2 ° or laws that limit access to sperm banks to licensed physicians,"1 also would be vulnerable to

16. For example, New Hampshire has passed legislation requiring ART practitioners to adhere to standards of the American Society for Reproductive Medicine, the professional society of ART practitioners. N.H. REV. STAT. ANN. § 168-B:31 (2000).

17. For a survey of such laws, see N.Y. STATE TASK FORCE, supra note 2, at 327Current examples of such an approach include laws prohibiting commercial surrogacy, see, e.g., N.Y. DOM. REL. LAW §§ 121-124 (McKinney 2001), and laws prohibiting the destruction of human embryos, see, e.g., LA. REV. STAT. ANN. § 9:129 (West 2000).

19. Some commentators have argued that a broadly defined principle of procreative liberty would not necessarily preclude regulations of ARTs designed to prevent social harm. Lori Andrews, for example, argues that, even if procreative liberty includes the right to have a child through cloning, the government could ban the procedure because of the danger of profound psychological harm to the cloned child and broader social harms from a reduction in genetic diversity. Lori B. Andrews, Is There a Right to Clone? Constitutional Challenges to Bans on Human Cloning, 11 HARV. J.

L. & TECH. 643, 652-56 (1998). Whether the Court would uphold a prohibition of activity deemed to trigger heightened constitutional protection depends in large part on how it defines the applicable standard of review. See infra text accompanying notes 64-67.

20. See, e.g., LA. REV. STAT. ANN. § 9:122.

21. See, e.g., OKLA. STAT. tit. 10, § 553 (1998) (providing that only licensed physicians may perform artificial insemination with donor sperm); see also Daniel Wikler & Norma J. Wikler, Turkey-baster Babies: The Demedicalization of Artificial InseminaASSISTED REPRODUCTIVE TECHNOLOGIES 61 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.

I. 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.



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