January 05, 2003
Legal Right To Use Reproductive Technologies?

Findlaw columnist Julie Hilden suggests there may be a constitutional right to use a wide array of reproductive technologies.

Indeed, so far, the Supreme Court has supported broad reproductive rights. In Skinner v. Oklahoma, it declared a right to procreate when it barred a state from sterilizing a prisoner. In Griswold v. Connecticut, it struck down a ban on contraception. In Roe v. Wade and Planned Parenthood v. Casey, it held unconstitutional laws that unduly restrict abortion.

Roe and Casey are often discussed as decisions involving bodily privacy and a woman's right to choose. Yet Griswold involves not privacy, but a drugstore purchase. Moreover, its holding not only the right of a woman, but the right of a couple to choose when -- and when not to -- reproduce. And the right to choose implicated in Skinner was a man's right to choose, not a woman's.

Thus, taken together, these decisions arguably suggest a broad right of parental choice -- one that applies to men and couples, as well as individual women, and to issues of reproductive choice, in the lab, the doctor's office, or the drugstore. Based on these precedents, if a state were, for example, to ban safe, perfected methods of in vitro fertilization (IVF), the Court would probably strike down the ban.

Suppose cloning becomes perfected and that a cloned baby has no greater risk of being defective than a baby made by regular (dare I say classical?) sexual reproduction. Would the United States Supreme Court find that there is a legal right to clone under those circumstances? What would be the argument against it? One argument against its legality is that the clone children would suffer from psychological trauma. While I think such a claim is questionable even if we grant it some credence is that a reason to outlaw reproductive cloning. We already allow people to reproduce under circumstances (eg extreme poverty, with a history of recurrent drug abuse, with a history of repeated criminal activity) which certainly do not bode well for the offspring. It seems like a weak reason to outlaw the practice of cloning in order to avoid some unproven psychological trauma when rather messed people are regularly having children whose experiences with their parents are likely to be far more traumatic to the children.

Cloning, in any case, is likely to appeal to only a very small portion of the population. One factor that will limit its popularity is that most people want a partner to help them raise their children. That partner is likely to be far more dedicated to raising the children if the children also have some of the partner's DNA. The biggest factor limiting the spread of cloning then is the need to get a partner to feel a personal bond to the children.

Cloning is a solution to some infertility problems. The biggest appeal of cloning is likely to be its ability to create an offspring under circumstances where some biological problem is preventing fertilization of an egg. Advances in other reproductive techniques will in time provide other solutions to infertility problems.

Another big appeal of cloning is that it will allow people of exceptional mental abilities to have children who are just as smart as the parents. Very bright couples frequently have children who are not as smart as the parents. One reason for this may be that both parents have only one copy of a dominant IQ-boosting variant of some gene and one copy (on the other chromosome of each chromosome pair) of a lower IQ version of the same gene. When each parent passes on genes to offspring there is one chance in 4 that neither parent will donate the smart version of the gene to their offspring. By contrast, cloning will assure that if a parent has a dominant IQ-boosting version of a gene then the offspring will too.

As reproductive biotechnology advances methods will be developed to control which of each chromosome pair one will pass on to one's offspring. Therefore it will be possible to avoid passing on the "dumber" version of a gene if you also happen to have the "smarter" version of the same gene. For most people the ability to control which half of one's genetic complement one passes on to one's children will provide a greater benefit in terms of optimizing one's childrens' abilities than cloning will. The reason is simple: one will be able to pick and choose the best of the genetic complement of two people and hence in many cases produce offspring who are better (by whatever criteria the parents care to use when selecting genes to pass along) than the parents. Therefore the ability to control whch subset of one's genetic complement one will pass on to offpsring will also reduce the demand for reproductive cloning.

More generally, the ability to genetically engineer one's children will provide an additional reason not to have offspring that are genetic clones. We will be able to use gene therapy to modify the genes we give to our offspring. This will provide the ability to make offspring that are better looking, smarter, with a better personality, with greater disease resistance, and with other appealing qualities. By contrast, simple cloning,. while limiting the downside risk, also limits the upside potential. Given the choice between having a clone who roughly equals the parent in abilities and having a child who is genetically enhanced many will opt for the non-clone superkid.

This ability to make changes in the DNA of our offspring will lead to potential uses of genetic engineering that will result in humans who have innate qualities (eg a total lack of empathy or the lack of a conscience) that make them dangerous to society. Once it becomes possible to control the personality characteristics of offspring it is unlikely that the US Supreme Court will decide that there is an unlimited right to reproductive choice. Once biotechnology advances far enough that it provides a way to make extemely dangerous children the legislatures and highest courts of Western nations will decide that the public interest overrides reproductive freedom.

Share |      Randall Parker, 2003 January 05 08:22 AM  Bioethics Reproduction

Bob said at January 5, 2003 12:38 PM:

In some cases, reproductive cloning will represent the exercise of life, liberty and the pursuit of happiness. While anything is possible, I expect the Supreme Court will uphold the right to it in at least certain cases once the technology is reliable and safe.

Consider, for instance, a woman who has had ovarian cancer or has some dire genetic trait and whose husband wants children. I could definitely see such a woman desiring to give birth to her husband's clone.

Or consider a woman whose husband suffers brain death--perhaps even during some heroic act--and wants to raise his clone to preserve both his memory and his genetic heritage.

I have difficulty seeing the Supreme Court refusing her in either case.

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