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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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Oklahoma, 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, 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 PlannedParenthoodof 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 lantion, 69 MILBANK Q. 5, 23-35 (1991) (questioning the appropriateness of laws that require physician involvement in assisted insemination).

22. 316 U.S. 535 (1942).

23. Id. at 541.

24. 405 U.S. 438 (1972).

25. Id. at 453.

26. 505 U.S. 833 (1992).

27. Id. at 851.

28. See, e.g., JOHN A. ROBERTSON, CHILDREN OF CHOICE: FREEDOM AND THE NEW REPRODUCTIVE TECHNOLOGIES 37 (1994) [hereinafter ROBERTSON, CHILDREN OF CHOICE].

FORDHAM URBAN LAW JOURNAL [Vol. XXX guage 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 procedure are subject to heightened judicial review.33 Robertson justifies this approach by citing the importance of having children to most individuals. "If bearing, begetting, or parenting children is protected as part of personal privacy or liberty," he argues, "those experiences should be protected whether they are achieved coitally or noncoitally. In either case they satisfy the basic biologic, social, and psychological drive to have a biologically-related family. '34 Robertson initially expressed some hesitation about applying the principle of procreative liberty to reproductive cloning,35 although more recently he has suggested that the principle might apply to individuals who are unable to have "a child genetically or biologically related to the rearing partners" through other available reproductive techniques, such as IVF.36

29. Lifchez v. Hartigan, 735 F. Supp. 1361, 1363 (N.D. Ill. 1990), affd, 914 F.2d 260 (7th Cir. 1990).

30. Id. at 1377.

31. Forbes v. Napolitano, 236 F.3d 1009, 1013-14 (9th Cir. 2000) (Sneed, J., concurring).

32. John A. Robertson, Two Models of Human Cloning, 27 HOFSTRA L. REV. 609, 619 (1999) [hereinafter Robertson, Two Models].

33. See ROBERTSON, CHILDREN OF CHOICE, supra note 28, at 38-39.

34. Id. at 39.

35. See Robertson, Genetic Selection, supra note 6, at 438 (arguing that cloning "might fall outside the bounds of reproduction as commonly understood in today's society").

36. Robertson, Two Models, supra note 32, at 618. Other commentators have questioned Robertson's focus on the individual's reason for seeking to have a child through cloning. See, e.g., Elizabeth Price Foley, The Constitutional Implications of Human Cloning, 42 ARIZ. L. REV. 647, 704 (2000) ("[U]nless we are prepared to institute mind police to enforce the appropriate moral or ethical standards for conASSISTED REPRODUCTIVE TECHNOLOGIES 63 In fact, Robertson suggests that the principle of procreative liberty also should extend to procedures without which people might not want to reproduce, even if they would be physically capable of doing so. For example, he suggests that there might be a constitutional right to use sperm-sorting technology in order to increase the likelihood of having a child of a particular sex, because some people might choose to forego reproduction if they were unable to determine their child's sex. 38 Such people, he claims, "should be free to use a technique essential to their reproductive decision unless the technique would cause the serious harm to others that overcomes the strong presumption that exists against government '39 interference in reproductive choice.

Other commentators have proposed narrower interpretations of the scope of constitutional protection. Ann Massie, for example, argues that the constitutional right to procreate is based on the importance of sexual intimacy within marriage. 4 According to Massie, while ARTs may enable infertile couples to have children, they "do not directly implicate the values-bodily integrity, marital intimacy, or integrity of the family unit-that are central to the privacy cases." 41 While Robertson's interpretation of procreative liberty focuses on the outcome of reproductive activities-the birth of a biologically-related child-Massie's approach is more concerned with the process and context. To the extent she recognizes a consticeiving a child, there is no place in the law of procreational liberty for distinctions based upon the often inchoate and questionable motivations of parents.").





37. Robertson, Two Models, supra note 32, at 618-19.

38. Robertson, Preconcption Gender Selection, supra note 6, at 3.

39. Id. at 4. In addition to procreative liberty, Robertson argues that the use of trait selection technologies might be protected under the principle of family autonomy. See Robertson, Genetic Selection, supra note 6, at 424 n.12.

If parents may "enhance" or better their offspring with special tutors, camps, orthodontia, rhinoplasty, or human growth hormone, then they might also have a right to bring about betterment by prebirth methods. As long as they are aiming to improve or benefit the child and their efforts will not harm the child, the timing of their efforts could be irrelevant.

Id.; cf.Owen D. Jones, Reproductive Autonomy and Evolutionary Biology: A Regulatory Framework for Trait Selection Technology, 19 AM. J.L. & MED. 187, 187, 199 (1993) (arguing that the principle of procreative liberty extends to trait selection technologies because such methods "can constitute an important part of larger 'reproductive strategies' that powerfully affect an individual's 'inclusiveness fitness,'" - a measure "of the proportion of a population, in a given future generation, that will carry copies of your various genes after your death").

40. Ann MacLean Massie, Regulating Choice: A Constitutional Law Response to Professor John A. Robertson's Children of Choice, 52 WASH. & LEE L. REV. 135, 162 (1995).

41. Id.

[Vol. XXX

FORDHAM URBAN LAW JOURNAL

tutional principle of procreative liberty, it is as an extension of a broader principle of marital privacy, rather than a right to have a child per se.

Radhika Rao's analysis of procreative liberty reflects a similar focus on the context of particular reproductive activities.42 For Rao, procreative liberty extends to reproductive activities carried3 out exclusively between persons in close personal relationships.

Within such relationships, the right would extend to both coital and noncoital means of reproduction. 4 However, Rao does not believe that constitutional protection extends to the use of gamete donation or surrogacy, because these procedures involve individuals from outside the relationship.45 In such cases, she argues, the couple's right to procreate must be balanced against the donors' and surrogates' own rights to reproduce, to parent, and to control the use of their own bodies.46 Between 1995 and 1998, the New York State Task Force on Life and the Law undertook a project to develop recommendations for state law and policy in the area of ARTs.47 The Task Force is an interdisciplinary state commission charged with recommending public policy on a broad range of bioethical issues.48 As part of its ART project, the Task Force convened a special working group to consider the constitutional issues surrounding the use of ARTs.4 9 Rather than attempting to define the precise contours of the constitutional right to procreate, the group developed a list of factors that it regarded as important elements of the constitutional protection of procreative freedom. The list included the following

considerations:

* Bodily integrity * Marital intimacy * The relationship between coital reproduction and sexual intimacy * The importance of being a parent and raising a child * The importance of carrying on a genetic line

42. See Radhika Rao, Reconceiving Privacy:Relationshipsand Reproductive Technology, 45 UCLA L. REV. 1077, 1078-80 (1998).

43. Id. at 1097.

44. Id. at 1115.

45. Id. at 1083.

46. Id. at 1090.

47. The Author served as Executive Director of the Task Force during this period.

48. N.Y. STATE TASK FORCE, supra note 2, at ix.

49. See id.

2002] ASSISTED REPRODUCTIVE TECHNOLOGIES 65 " The religious dimensions of decisions about procreation and child rearing * The woman's interest in carrying a fetus and giving birth * The intrusiveness of attempts to enforce laws limiting decisions about procreation " The danger that placing control of reproduction in the hands 5° of the state will lead to eugenic policies The Task Force concluded that, "the constitutional protection afforded particular forms of assisted reproduction should be based on the degree to which the procedure at issue implicates the factors set forth above."' 51 Under this approach, ARTs by married couples using their own gametes would probably enjoy constitutional protection, as they implicate all of the factors on the list except for sexual intimacy.52 By contrast, surrogacy, cloning, or the use of trait selection technologies might not.53 The Task Force specifically rejected the broad interpretation of procreative liberty advocated by Robertson and other commentators.5 4 According to the Task Force, "[t]he fact that noncoital reproduction, like coital reproduction, is based on a desire to have a biologically-related child does not, in itself, mean that the use of ARTs implicates the same constitutional concerns.

How II. MIGHT THE SUPREME COURT RULE?

Of course, the analysis of lower courts and commentators is not necessarily any indication of how the Supreme Court will rule. In general, this Court has been reluctant to interpret substantive due process rights broadly. In upholding state laws prohibiting assisted suicide, the Court emphasized that not all deeply personal choices are constitutionally protected. 6 Some justices have emphasized the importance of limiting constitutional protection to practices supported by history and tradition, 57 an approach that would probably yield no special protection for decisions about ARTs.

50. Id. at 144-45.

51. Id. at 145.

52. See id.

53. See id. at 145-46.

54. See id. at 146.

55. Id. at 145.

56. See Wash. v. Glucksberg, 521 U.S. 702, 727 (1997) ("That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected.").

57. See Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality) ("[W]e have insisted not merely that the interest denominated as a 'liberty' be 'fundamental' (a 66 FORDHAM URBAN LAW JOURNAL [Vol. XXX Yet, it is not unthinkable that the Court would extend the right to procreate to at least some forms of ARTs, particularly those that enable married couples to reproduce using their own gametes.

Language about procreation in the Court's prior decisions have emphasized the importance of decisions about having and raising children, not the relationship between reproduction and sexual intimacy.58 The fact that ARTs require medical interventions does not mean they fall outside the scope of constitutional protection.

After all, the right to abortion is a right to a medical procedure; the fact that terminating a pregnancy requires medical intervention has never been thought to be inconsistent with recognizing abortion as a constitutional right.

However, it is doubtful that the Court would extend the right to procreate to all medical procedures resulting in the birth of a child.

Once third parties like gamete donors or surrogates enter into the picture, it is difficult to view ARTs as purely private decisions. The Court is also likely to draw a distinction between procedures that enable individuals to have a child and procedures that seek to provide the means to have a particular type of child. While Robertson may be correct that restrictions on trait selection would affect some people's willingness to have children,5 9 the Court is unlikely to find that such indirect burdens on procreative decisions are constitutionally significant.



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