John A. Robertson · September 2008
76 GEO. WASH. L. REV. 1237 (2008)
The reproductive battles of the last forty years have been largely about contraception and abortion. In the twenty-first century reproductive battles will also pull in assisted reproduction, genetic selection, and genetic enhancement. The conceptual framework developed for abortion and contraception set the backdrop for those conflicts, but they take us only a short way into this new territory.
Issues arising with assisted reproduction and genetic selection focus more directly on efforts to reproduce than on avoiding reproduction—the core interest in past struggles over contraception and abortion. Those struggles were also centrally about respecting the equal status of women as citizens through control over their reproductive lives. The new territory, by contrast involves the ability to bear and rear children when women and men want to reproduce.
This places a new set of issues on the table—the importance of reproduction to individuals as such. Fashioning a social and legal consensus about reproductive rights will push all involved—individuals, families, doctors, professional organizations, courts, and legislators—to confront the meanings and interests at stake in the reproductive decisions under scrutiny. To do that, we have to ask why reproduction is important and valued, and then whether the logic of respecting it entails the same robust protection for assisted reproduction and genetic selection that contraception and abortion warrant.
Issues of the meaning and scope of reproduction are directly implicated in most current and anticipated controversies over both assisted reproduction and genetic selection. The main controversies in assisted reproduction arise from methods for having offspring and forming families when there are medical or social impediments to coital conception, with parents sometimes having only a genetic or gestational tie to children. The law erects few direct prohibitions, but the legal framework for assigning rearing rights and duties can effectively prevent or dampen access to new techniques.
Genetic selection and shaping also involve the freedom to reproduce. The use of those techniques entails steps that could reveal or change the genetic makeup of prospective children and thereby affect a person’s willingness to procreate. While most selection is now done negatively, that is, by screening out gametes and embryos with particular genes, the technical ability to delete or add genetic material will soon be in our hands. Here we need to examine whether choice of offspring traits is an essential part of reproductive freedom, and what moral or policy difference negative selection versus positive alteration makes.
