American Journal of Law & Medicine

Procreative liberty in the era of genomics.


Twentieth century biology began with the rediscovery of Gregor Mendel's work on peas and ended with the sequencing of the human genome. In between came Thomas Morgan's studies of fruit flies, the grand synthesis between genetics and evolutionary biology in the 1930s, and Watson and Crick's publication in 1953 of the double helix structure of deoxyribose nucleic acid ("DNA"), the substance in the nucleus of cells, which carries the genetic code of all eukaryotic life. (1)

The genetics of the second half of the century focused on learning how DNA coded for proteins, how to splice, clone, and recombine pieces of DNA, and how genetic mutations caused disease. In the late 1980s, a project to identify the actual sequence of all 3.2 billion base pairs of the human genome began. (2) In June 1999, President Clinton and Prime Minister Blair announced that a working draft of the human genome was complete, with the final completed draft to 99.9% accuracy expected in May 2003, fifty years after the publication of Watson and Crick's landmark paper. (3)

This remarkable achievement now provides scientists with the tools for understanding the molecular details of how living cells function and evolve, and thus the means for diagnosing, treating, and preventing many diseases. It will also lead to applications in reproduction, in personal and kinship identity, and possibly in social control. Increasing "geneticization" of medical, reproductive, and social spheres of life will bring many benefits, but may also lead to public and private misuse, and new forms of power over individuals. (4) A special threat is genetic reductionism and its effect on how humans view themselves and their place in the universe. (5)

Coming to grips with the social implications of human genomic knowledge presents a series of diverse, but related, challenges about how to make use of genetic information in human affairs in ethically, legally, and socially acceptable ways. One major group of issues concerns ownership and control rights in the genome. Researchers need access to human DNA and patient medical records to identify genes, and to develop drugs and treatments based on them. Intellectual property rights in genes or gene products may also be necessary to spur investment in genomic research. At the same time, the privacy rights of individuals in their bodily tissue, DNA, and medical records demand strong protection.

A different set of issues arises from the many potential medical uses of genomic information. Genomics will play a major role in understanding the mechanics of disease, and in designing drugs and treatments to prevent and treat disease. Screening individuals or populations for genetic susceptibility or late-onset conditions, so that prevention may occur, will become much more common. Pharmacogenomics--genomic factors influencing drug metabolism (6)--may enable physicians to prescribe drugs tailored to a patient's genotype. (7) But unraveling the body's genetic secrets and turning them into effective therapies poses a major scientific challenge. As Dr. Francis Collins, the director of the National Human Genome Research Institute, has put it, genomics "will occupy science and medicine for the next 50 or 100 years." (8)

A third set of issues--the use of genomic knowledge in reproduction--shows how socially and morally complicated genomic applications can be. Because genes are inherited systems of information passed on to progeny, (9) genomic knowledge increases the ability to predict or even control the genes of offspring. Persons planning reproduction might want to know something about their genetic makeup or that of their embryos or fetuses before they conceive, bear, or give birth to offspring. While much of the resulting control will operate by excluding undesirable genomes, at some point, attempts to rewrite or engineer sections of the genetic code of prospective offspring may also occur.

Although each set of genomic issues involves some application of genetic knowledge to human activities, each area has its own particular set of normative challenges and conflicts, and is thus best considered independently. This article will focus on the ethical, legal, and social challenges presented by the use of genetics in reproduction in the genomics era. Those uses raise morally complex and politically charged issues, where slogans and shibboleths often replace the careful analysis needed to resolve them.

Part II of this Article describes the controversies that arise with the use of genetics in reproduction and three approaches to resolving them. Part III explores the concept and meaning of procreative liberty, explains why it is valued, and describes its constitutional status. Part IV then applies a procreative liberty analysis to four key areas of debate and controversy over the use of reprogenetic techniques in reproduction. Section III.A. addresses the use of genetic knowledge in screening of prospective children for health reasons. Section IV.B. looks at non-medical selection, with a focus on sexual orientation and gender. Moving then to positive techniques of genetic choice, Section IV.C. discusses the case for reproductive cloning. Section IV.D then addresses positive alteration of embryo genomes for both medical and non-medical purposes. Finally, Part V discusses the problems of making policy in this area.


Reproductive uses of genetic knowledge have been especially controversial for several reasons. First, they come with a bad pedigree. Attempts at the beginning of the twentieth century to improve the gene pool led to a repressive system of involuntary eugenic sterilization in thirty American states. (10) These laws provided a role model for Hitler's eugenic sterilization program, (11) which preceded Nazi efforts to annihilate Jews and other groups with disfavored genes. The shadow of eugenics hangs over all attempts, whether medical or non-medical, to select offspring genes.

Secondly, the use of genes to select offspring is quickly embroiled in social and political battles involving prenatal life, the status of women, and disability rights. Battles over the status of the fetus and abortion arise with the use of techniques to screen embryos or fetuses for genes of interest. Women assume greater burdens than men in the use of most reproductive technologies, thus implicating concerns about the equality and autonomy of women. Persons with disabilities are concerned about biases in genetic screening programs that disfavor persons with disabilities.

Third, the use of genetic information in reproduction inevitably raises questions about the permissibility of any selection of offspring traits, as well as about the particular grounds of selection. The 1996 birth of Dolly, the sheep cloned from the mammary gland of an adult ewe, (12) has upped the ante of concern by stimulating fears that people will attempt to engineer offspring traits, turning children into commodities or objects to serve parental needs. Much of the current concern reflects fears that technologies to silence genes or insert DNA into the genomes of prospective children will become available and will pose serious threats to the well-being of children, society, and the very meaning of reproduction.

How then are we to reconcile the conflicts between reproductive choices and respect for prenatal life, offspring, families, women, other groups, and societal values that arise in using genetic knowledge in reproduction? A central dilemma is that accepting any instance of genetic selection in principle implies accepting most other instances of selection as well. But some uses seem much more questionable and less beneficial than the one initially accepted. Can acceptable lines be drawn, or is it better, as some would argue, to permit little, if any, genetic selection to occur?

To draw sound lines one needs a realistic sense of what those techniques involve, how they might help people in realizing their reproductive plans, and how they might harm them, their offspring, or society. But answers to those questions will be heavily influenced by more basic attitudes or normative stances that one takes toward the use of technology in reproduction. One's understanding of the meaning and significance of reproduction, parenting, the status of offspring, and a variety of other interests will be a key determinant in resolving these issues.

Three different stances (strict traditionalism, modern traditionalism, and radical liberty) have vied for recognition in ethical, legal, and policy discourse about these issues. I describe each of them, and the reasons why this article uses the modern traditionalist perspective to evaluate the many uses of genetic knowledge in reproduction.


A strict traditionalist holds that reproduction is a gift from God, resulting from the loving intimacy of two persons. (13) They receive the girl of an embryo, fetus, and then child who is to be unconditionally cherished for its own sake. This view would condemn most uses of technology to control or influence the characteristics of offspring because parental selection necessarily conflicts with the idea of "unconditional girl" and suggests that the child is a made or chosen "product."

The leading contemporary articulator of this tradition is Leon Kass, Chair of the President's Council on Bioethics, who has expressed that view in articles and books since the 1970s. (14) Because his views underpin the President's Bioethics Council's 2002 report, Human Cloning and Human Dignity, (15) I will take that report as representative of the strict traditionalist position.

In referring to children born of technological assistance, the report notes:

   we do not, in normal procreation, command their conception, control 
   their makeup, or rule over their development and birth. They are, in 
   an important sense, 'given' to us. Though they are our children, 
   they are not our property.... Though we may seek to have them for 
   our own self-fulfillment, they exist also and especially for their 
   own sakes. Though we seek to educate them, they are not like our 
   other projects, determined strictly according to our plans and 
   serving only our desires. (16) 

The report goes on to note that:

   If these observations are correct, certain things follow regarding 
   the attitudes we should have toward our children. We treat them 
   rightly when we treat them as gifts rather than as products, and 
   when we treat them as independent beings whom we are duty bound to 
   protect and nurture rather than as extensions of ourselves subject 
   only to our wills and whims. (17) 

An important implication of the view that offspring are "gifts" and not "products" is that humans should have no say in the outcome or makeup of a child. They must simply accept the "gift" that is provided and make no attempt to change, direct, control, design, or exclude it. Reproductive cloning is the sin extraordinaire because "cloned children would thus be the first human beings whose entire genetic makeup is selected in advance." (18) Although the report does not address other modes of selection, the gift ethic would seem to condemn all other forms of prenatal selection as well, whether positive or negative, medical or non-medical. (19) All such uses would make children "like other human products, brought into being in accordance with some pre-selected genetic pattern or design, and therefore in some sense 'made to order' by their producers or progenitors." (20) Acceptance of such actions would:

   provide at best only a partial understanding of the meanings and 
   entailments of human procreation and child-rearing ... [and 
   undermine] the unconditional acceptance of one's offspring that is 
   so central to parenthood. (21) 
   In short, the right to decide 'whether to bear or beget a child' 
   does not include a right have a child by whatever means. Nor can 
   this right be said to imply a corollary--the right to decide what 
   kind of child one is going to have. (22) 

The main problem with this view as a guide to public policy is its roots in a religiously based or metaphysical view of how reproduction should occur and a breadth that would apparently condemn nearly all forms of technological assistance in reproduction. As a religiously based view with which many persons would disagree, it has no claim to special respect in a liberal secular democracy, where individuals define within a broad range their own sense of the good. Its condemnation of "unnatural" ways of reproduction is not required to protect the well-being of offspring, because in nearly all cases resulting offspring appear to benefit from the technologies used. (23) The fact that techne (24) is used should not itself disqualify techniques that help parents fulfill goals of having healthy children to rear. Disagreements about the ethics of particular cases do not justify having the government impose one "correct" view of how reproduction should occur in all cases.

In addition, this view conflicts with the natural instinct of parents to have healthy children for their own sake and that of the children. In appealing to the natural, the strict traditionalist overlooks the most natural fact of all--that people have strong interests in passing on their genes and in having healthy offspring who will do the same. Unless Kassians are adopting the untenable view that any interference with nature is wrong, they must recognize that techne can help humans deal with the limits which nature has placed on them, as it does with other limits. (25) Within broad bounds, using technology to accomplish that task is no more objectionable than using technology after birth to enable survival to continue. There are limits, such as harm to children or others, but those harms must be serious when a substantial reproductive interest is aided by a technique.


The radical liberty view is the polar opposite to strict traditionalism. It holds that individuals are free to use any reproductive technique they wish for whatever reason, and no limits can appropriately be placed on what they do before the birth of a child. (26) Individuals are thus free to select, screen, alter, engineer, or clone offspring as they choose. (27) They are the best judges of what is good for them, including what children they have.

The justification of this position appears to be general libertarian principles of freedom without government interference, though one strand of the position draws on utopian notions of humans perfecting themselves by engineering their very nature. Libertarianism in reproduction means that a person has the right to select for specific genes or do anything she chooses in the course of reproduction. For radical libertarians, the technical ability to "rewrite" or "edit" the genome of offspring is cause for huzzas not homilies.

Radical liberty proponents are probably few in number. The Raelian sect, Randolph Wicker, and others promoting reproductive cloning have made such a claim. (28) Dr. Brigitte Boisselier claimed at the National Academy of Sciences hearing on cloning that she "has the right to have any kind of child that she wants." (29) Gregory Stock, and to some extent, Lee Silver, predict that parents will want to use any technique that will enhance the well-being of offspring, and that such will come to be accepted because of the strong parental interest and commitment to their offspring. (30) But their views are descriptive, and do not necessarily present arguments for why unlimited choice is desirable.

Although held by relatively few, the radical liberty view hovers in the background and casts a shadow over many official, scholarly, and popular accounts of reproductive issues. Strict traditionalists often assume that anyone who does not share their view is in favor of radical liberty (rather than the modern traditionalist view, which does recognize some constraints). (31) Many popular and policy discussions about reproductive technology often assume that if cloning, genetic enhancement, and other selection or alteration techniques were safe, many people would seek them as a matter of right, thus radically altering reproduction and relations with children to the detriment of all. (32)

The problem with the radical liberty view is that it is too extreme in its espousal of personal freedom. Just as strict traditionalism admits no nuance in assessing possible benefits in reproduction technology, radical libertarians see no reason ever to place limits on any choice related to conception, screening, alteration, or the production of children. (33) But such an extreme view denies the validity of the harm principle (34)--personal liberty is justifiably limited when it causes direct harm to others--applied to reproductive choices just as it does to other exercises of autonomy. Even assuming that reproduction deserves special protection, however, the radical liberty view provides no way to distinguish which activities surrounding reproduction are truly reproductive and which ones are not. The best or ultimate judge of whether an activity is reproductively important and whether it violates the harm principle cannot be the actor being judged, as the radical liberty view asserts.


Modern traditionalism is midway between the other two positions. Although a heterogeneity of views parade under the modern traditionalist banner, that approach has much to offer as a methodology for dealing with genetics in reproduction. It holds that reproductive choice in a liberal, rights-based society is a basic freedom, including the use of genetic and reproductive technologies that are helpful in having healthy, biologically related offspring. (35) This view is modern in its acceptance of new technologies, but traditional in demanding that those techniques ordinarily serve traditional reproductive goals of having biologically related offspring to rear. Its acceptance of reproductive and genetic technologies, however, exists only insofar as they aid the task of successful reproduction, and do not directly harm offspring, families, women, society, or others.

As a result, many uses of reproductive technology will be protected, but not automatically. The connection with reproduction is key, as is the absence of direct harm to others. Some techniques will not be acceptable precisely because their connection to gene transmission and rational investment strategy in offspring will be lacking or unclear. In other cases, harm might result, though what counts as "harm" from reproduction is itself hotly contested. (36)

The problem for the modern traditionalist is to give a persuasive account of why some uses of reproductive technology are acceptable, but others are not. To do this she must provide a convincing method or set of criteria for determining which uses are "reproductive" and what counts as "harm." Her challenge is to show how her approach gives reasonable answers to the conflicts that genetic uses inevitably raise. Rather than appeal to Procrustean principles that neatly give answers for all cases, modern traditionalism adopts instead a pragmatic, context-specific approach that looks at how proposed techniques are likely actually to be used, and the problems, if any, which might then arise. Although less definite, this approach is best suited for handling issues of reproductive technology in the era of genomics, as analysis of several genetic uses in reproduction will show.


The modern traditionalist view translates easily into the language of individual rights. Although not the only relevant perspective to take on these issues, a rights-based perspective focuses attention on key aspects of the individual and societal concerns at issue with these techniques. For example, it reminds us of the importance of the more fundamental decision of whether to assign decisions to use reproductive technologies to individuals and their professional advisors or to legislative majorities. It also focuses analysis on the context of likely use by assessing the reproductive interests that a disputed technology serves, and the severity and probability of the harm or objection that it generates. A coherent account of what procreative liberty is and why it is protected can provide a workable set of principles for a modern traditionalist to use in resolving the normative and policy conflicts that arise when genetic knowledge is used in reproductive decision-making.

Procreative liberty is best understood as a liberty or claim-right to decide whether or not to reproduce.37 As such, it has two independently justified aspects: the liberty to avoid having offspring and the liberty to have offspring. Because each aspect has an independent justification, each may be conceived as a different right, connected by their common concern with reproduction. (38)

The liberty to avoid having offspring involves the freedom to act to avoid the birth of biologic (genetically related) offspring, such as avoiding intercourse, using contraceptives, refusing the transfer of embryos to the uterus, discarding embryos, terminating pregnancies, and being sterilized. In contrast, the liberty or freedom to have offspring involves the freedom to take steps or make choices that result in the birth of biologic offspring, such as having intercourse, providing gametes for artificial or in vitro conception, placing embryos in the uterus, preserving gametes or embryos for later use, and avoiding the use of contraception, abortion, or sterilization.

As with other liberties in a rights-based society, an actor is not obligated to exercise a particular liberty right. He or she may or may not choose to reproduce, or to use or not use genetic or reproductive technologies in making those decisions. An actor may have no need to use a technology or lack the means to do so; or he or she may reject uses of particular technologies for a wide range of personal reasons, including moral or ethical concerns about the effect of particular techniques on children, on society, or on deeply held personal values, including values of how reproduction should occur. (39) The technological imperative--that if something can be done, it will be done--is not nearly as powerful as often claimed. No one is obligated to reproduce or to use particular reproductive and genetic technologies in avoiding reproduction or in reproducing. (40)

Like most moral and legal rights in liberal society, procreative liberty is primarily a negative claim-right--a right against interference by the state or others with reproductive decisions--not a positive right to have the state provide resources or other persons provide the gametes, conception, gestation, or medical services necessary to have or not have offspring. Some persons, however, would argue that it should have positive status as well, with the state or public health system providing reproductive health services, including infertility treatment, genetic screening, or abortion.

As should be clear from this discussion, recognizing procreative liberty as a moral or legal right or important freedom does not mean that it is absolute, but rather that there is a strong presumption in its favor, with the burden on opponents to show that there is a good case for limiting it. Many critics, however, assume that claims of procreative liberty are claims of an inalienable or absolute right. (41) But a right can be inalienable--not transferable to others--without also being absolute. And no serious proponents of procreative liberty argue that it is absolute and can never be limited. Rather, the debate is (or should be) about whether particular exercises or classes of exercise of the right pose risks of such harm to others that they might justly be limited. (42)

An important set of related issues concerns the scope of procreative liberty--what activities related to avoiding or engaging in reproduction a coherent conception of procreative liberty includes. This can be determined only by assessing the role that those other activities play in avoiding or engaging in reproduction. Some activities seem so closely associated with, or essential to, reproductive decisions that they should be considered part of it and judged by the same standards. An example is a woman's need to acquire and then use genomic information about herself, her partner, her gametes, her embryos, or her fetus before deciding whether or not to reproduce. Because such information will often be determinative of whether a person or couple would or would not reproduce, freedom to acquire and use it would seem to be part of procreative liberty, unless its use posed substantial risks to others.

In contrast, other activities in and around reproduction might not be part of procreative liberty and thus not deserve the same protection (though some of them might deserve strong protection on other grounds). Thus, actions occurring in the course of reproduction, such as home-birthing, having the father present in the delivery room, using drugs during pregnancy, and the like are not part of procreative liberty per se; nor is adopting a child or rearing children not related by genetic kinship, because those activities arise only after reproduction has occurred and are not themselves determinative of whether reproduction will occur. As I argue below, some uses of reproductive and genetic technology, such as reproductive cloning when fertile and intentional diminishment of offspring characteristics, may also fall outside the protective canopy of reproductive liberty.

Unsurprisingly, there may be intense debate about whether something is central or material to reproduction and thus properly regarded as part of, or an aspect of, procreative liberty, just as there is sharp debate about the seriousness and risk of resulting harms. Before reaching questions of harm, however, it is useful first to ask whether a particular use of reproductive technology, such as embryo screening for medical and non-medical traits, genetic engineering of prospective offspring, or reproductive cloning, is itself an exercise of procreative liberty. All such arguments, it seems, relate to how essential or material those activities are to the values that underlay the importance to individuals of their decision to avoid or engage in reproduction. (43) While people may disagree over the precise limits, the argument, if properly focused, should be about the closeness of the activity in question to the values that support freedom in reproductive decision-making and whether the effects on others of exercising that freedom justify limiting it.

As argued below, however, while a material connection to the reproductive decision is a necessary condition to qualify the choice as one of procreative freedom, it may not always be a sufficient one. (44) The connection may not be sufficient if the materiality to the individual is not in keeping with ordinary understandings of why having offspring is so important to individuals. (45) A certain degree of conformity with common understandings of why reproduction is important is thus necessary for inclusion in procreative liberty. But such conventionalism is limited to clarifying reproductive goals and not to determining the acceptability of means to those goals. (46) From this perspective, the use of new technologies to overcome infertility or to avoid the birth of children with disease are ways to reach the traditional goal of having healthy children and should not be rejected, as the conventionalism of strict traditionalism would, merely because the means are novel or new types of rearing relationships result.

At the same time, not all uses of new technologies should be acceptable just because, as the radical libertarian would argue, they are an instance of reproductive choice. If they are used to achieve goals not clearly grounded in our ordinary understandings of why reproduction matters to individuals, for example, they employed means that seemed unnecessary, such as reproductive cloning when fertile, or that did not advance the interests of offspring, such as intentional diminishment of capacities of otherwise healthy offspring, they would not serve the values that make having offspring of such key importance to persons. …

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