Assisting reproduction, choosing genes, and the scope of reproductive freedom

George Washington Law Review

Volumn 76, Issue 6, 2008, Pages 1490-1513

  Robertson, John A ^a  

^a UNIVERSITY OF TEXAS   (United States)

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EID: 59649099740     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (122)

1. See Gonzales v. Carhart, 127 S. Ct. 1610 (2007) (Ginsburg, J., dissenting); Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261 (1992). I focus on a liberty approach to reproductive issues in this Article, but equality issues are always relevant when women play a central role in an activity, as in the case of reproductive technology. Equality issues, however, appear to be less directly salient in the assisted reproduction and genetic screening and selection areas. Still, education, employment, and childcare might affect a woman's willingness to use or contribute to egg donation and surrogacy.
2. Excluded here are the use of reproductive materials - gametes and embryos - for research. Although an important frontier of scientific research and future medical practice, they are not directly reproductive.
3. Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965).
4. Eisenstadt v. Baird, 405 U.S. 438, 443 (1972).
5. Roe v. Wade, 410 U.S. 113, 153 (1973);
6. see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844-46 (1992).
7. There is a vibrant critique of the limitations of a negative rights approach to constitutional issues because it overlooks the extent to which even negative rights require some degree of government assistance or resources in enforcement. See, e.g., Martha Nussbaum, Forward: Constitutions and Capabilities: "Perception" Against Lofty Formalism, 121 HARV. L. REV. 5, 21-22 (2007).
8. Other articles in this symposium show awareness of this emphasis and the need to broaden the discourse about reproductive rights. See, e.g., Radhika Rao, Equal Liberty: Assisted Reproductive Technology and Reproductive Equality, 76 GEO. WASH. L. REV. 1457, 1457 (2008);
9. Sonia Suter, The "Repugnance" Lens of Gonzales v. Carhart and Other Theories of Reproductive Rights: Evaluating Advanced Reproductive Technologies, 76 GEO. WASH. L. REV. 1514, 1517 (2008).
10. Buck v. Bell, 274 U.S. 200 (1927).
11. The Court stated that: We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind .... Three generations of imbeciles are enough.
12. Id. at 207 (emphasis added). Given current thinking, it is highly unlikely that the decision would come out similarly today.
13. Skinner v. Oklahoma, 316 U.S. 535 (1942).
14. Id. at 536.
15. The Court stated: We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. . . . [There] is no redemption for the individual whom the law touches. . . . He is forever deprived of a basic liberty.
16. Id. at 541.
17. See, e.g., 8 U.S.C. § 1101 (1942) (stating that a person "who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion," thus qualifying for refugee status).
18. Trammel v. State, 751 N.E.2d 283, 286 (Ind. 2001);
19. State v. Talty, 814 N.E.2d 1201, 1207 (Ohio 2004);
20. State v. Oakley, 629 N.W.2d 200, 201-02 (Wis. 2001).
21. Cases like Gonzales v. Carhart are good barometers of changes in the Court due to single vote shifts (Alito for O'Connor), but turn out to have little relevance to the issues under scrutiny in this Article.
22. Gonzales v. Carhart, 127 S. Ct. 1610 (2007).
23. Several prominent thinkers argue from a conception of what humans are and what they do, as well as traditional notions of family and community versus individualistic conceptions of liberty. See, e.g., Daniel Callahan, Bioethics and Fatherhood, 1992 UTAH L. REV. 735;
24. Leon R. Kass, The Wisdom of Repugnance: Why We Should Ban the Cloning of Humans, 32 VAL. U. L. REV. 679 (1998);
25. Michael Sandel, Moral Argument and Liberal Toleration: Abortion and Homosexuality, 77 CAL. L. REV. 521 (1989).
26. Scott Altran, Robert Axelrod & Richard Davis, Sacred Barriers to Conflict Resolution, 317 Sci. 1039 (2007). Using the Arab-Israeli conflict as an example, the authors stress the importance of symbolic over rational behavior.
27. See id. They mention each side making symbolic concessions as a way to help resolve harder issues.
28. Id. "Special respect" for embryos-requiring a strong reason for destroying or manipulating embryos, and limiting such things as creating embryos solely for research, may be seen as a way to make symbolic trade-offs.
29. Id. It does not appear to have been successful in quieting deeper conflicts.
30. See John A. Robertson, Symbolic Issues in Embryo Research, HASTINGS CENTER REP., Jan.-Feb. 1995, at 37, 37-38 (vol. 25, no. 1).
31. For an update of those arguments, see John A. Robertson, Embryo Culture and the "Culture of Life": Constitutional Issues in the Embryonic Stem Cell Debate, 2006 UNIV. OF CHI. LEGAL F. 1, 19-26.
32. Roe v. Wade, 410 U.S. 113, 159 (1973). The two dissents in Roe did not contest this point, nor did any dissenters in Casey or other cases involving abortion.
33. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).
34. A 2006 South Dakota law that recognized no exceptions for rape or incest did not with-stand a statewide referendum, suggesting that such extreme restrictions are unlikely even with the demise of Roe. See H.B. 1215, 81st Sess. (S.D. 2006) (the ban as passed by the South Dakota legislature);
35. see also Monica Davey, South Dakotans Reject Sweeping Abortion Ban, N.Y. TIMES, Nov. 8, 2006, at P8.
36. I first addressed this issue in 1986 in John A. Robertson, Embryos, Families, and Procreative Liberty: The Legal Structure of the New Reproduction, 59 S. CAL. L. REV. 939, 977-81 (1986).
37. See Gonzales v. Carhart, 127 S. Ct. 1610, 1615 (2007). Justice Kennedy makes this point by quoting Casey's restatement of "Roe's . . . 'essential holding' ... [that] the State has legitimate interests from the pregnancy's outset in protecting the . . . life of the fetus that may become a child."
38. Id. (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992)). He goes on to note that the question in Carhart is "whether the Act furthers the Government's legitimate interest in protecting fetal life" that may become a child.
39. Id. Unless Justice Kennedy is not paying close attention to his words, the use of "fetus" suggests that cells in pre-fetal stages, such as preimplantation embryos in the fetus or laboratory, are not covered.
40. This would assume the retirement of Justice Stevens or Ginsburg, the election of a prolife Republican President in 2008, and the appointment of strictly pro-life Justices.
41. See Robertson, supra note 18.
42. On the question of regulation of assisted reproduction generally, see Marsha Garrison, Regulating Reproduction, 76 GEO. WASH. L. REV. 1623 (2008).
43. For a brief synopsis of the antiregulatory position, see John A. Robertson, The Virtues of Muddling Through, HASTINGS CENTER REP., Sept.-Oct. 2008, at 26, 26 (vol. 38, no. 5).
44. To commemorate the thirtieth birthday of the first child born from IVF, Nature published a report containing the views of several reproductive experts on likely developments in the next thirty years of ART. Three experts mentioned the likelihood of obtaining gametes from skin or other cells of anyone, thus creating an unlimited supply of eggs for research and reproduction. The ability to do so would derive from developing techniques to induce the production of pluripotent stem cells from ordinary somatic cells and growing knowledge of how germ cells derive from embryonic stem cells. None of the commentators thought it would soon be available. Helen Pearson, Special Report: Making Babies: The Next 30 Years, 454 NATURE 260-62 (2008) (comments of Davor Solter, Alan Trounson, and Miodrag Stojkovic).
45. See U.S. National Library of Medicine & National Institutes of Health, Medline Plus Medical Encyclopedia: In Vitro Fertilization (IVF), http://www.nlm.nih.gov/medlineplus/ency/article/007279.htm (last visited July 21, 2008).
46. See id. ("The sperm usually enters (fertilizes) an egg . . . after insemination." If, however, the doctor believes there is a low probability of fertilization, she "may directly inject the sperm into the egg. This is called intracytoplasmic sperm injection (ICSI)." Additionally, "[m]any fertility programs routinely do ICSI on some of the eggs even if everything is normal.").
47. See AM. SOC'Y FOR REPROD. MED., ASSISTED REPRODUCTIVE TECHNOLOGIES: A GUIDE FOR PATIENTS 9-10 (2007), available at http://www.asrm.org/Patients/patientbooklets/ ART.pdf ("Extra embryos remaining after the embryo transfer may be cryopreserved (frozen) for future transfer .... However, not all embryos survive the freezing and thawing process, and the live birth rate is lower with cryopreserved embryo transfer. Couples should decide [whether] to cryopreserve extra embryos before undergoing IVF.").
48. See Andrea D. Gurmankin et al., Embryo Disposal Practices in IVF Clinics in the United States, POL. & LIFE SCI., Sept. 2003, at 4, 6 (vol. 22, no. 2) available at http://repository.upenn. edu/cgi/viewcontent.cgi?article=1006&context= bioethics-papers (surveying IVF clinics and discovering that seventy-eight percent dispose of embryos in some way, some only after contacting the couple).
49. Freezing eggs prior to fertilization could obviate this problem, but egg freezing has not yet been established as safe and effective. See Practice Comm. of the Soc'y for Assisted Reprod. Tech. & the Practice Comm. of the Am. Soc'y for Reprod. Med., Essential Elements of Informed Consent for Elective Oocyte Cryopreservation: A Practice Committee Opinion, 88 FERTILITY & STERILITY 1495 (2007)
50. [hereinafter Elements of Informed Consent].
51. See Pam Belluck, It's Not So Easy to Adopt an Embryo, N.Y. TIMES, June 12, 2005, at D5 (discussing the concerns regarding extra embryos and possible solutions).
52. See Laurie Tarkan, Lowering Odds of Multiple Births, N.Y. TIMES, Feb. 19, 2008, available at http://www.nytimes.com/2008/ 02/19/health/19mult.html.
53. See id.
54. John A. Robertson, Protecting Embryos and Burdening Women: Assisted Reproduction in Italy, 19 HUM. REPROD. 1693, 1693 (2004).
55. Id.
56. See Ashley Surdin, Colorado Voters Will Be Asked When 'Personhood' Begins, WASH. POST, July 13, 2008, at A04.
57. The Georgia proposal, not yet reduced to a bill, would follow the Italian example. See H.B. 1358, 149th Gen. Assem., Reg. Sess. (Ga. 2008).
58. Despite its experimental status, enough programs are offering egg freezing that the American Society for Reproductive Medicine ("ASRM") and the Society for Assisted Reproductive Technology have issued guidelines for informed consent "elective" egg freezing. See Elements of Informed Consent, supra note 31, at 1495.
59. See infra Section I.B.2 for a discussion. Carhart suggests, however, that protecting a woman's health is not a constitutionally required exception for abortion; thus, health burdens may not be sufficient to infringe rights in other circumstances.
60. See Gonzales v. Carhart, 127 S. Ct. 1610, 1617-18 (2007) (holding that the law's "failure to allow the banned procedure's use where necessary ... for preservation of the [mother's] health does not... impos[e] an unconstitutional burden").
61. See John A. Robertson, Procreative Liberty and Harm to Offspring in Assisted Reproduction, 30 AMER. J.L. & MED. 7, 10 (2004).
62. Society for Assisted Reproductive Technology: IVF Success Rates, http://www.sart.org (last visited July 21, 2008).
63. See Tarkan, supra note 33 ("It is not that twins or triplets are undesirable, doctors say. But multiple pregnancies often lead to risky preterm births and other complications.").
64. ASRM guidelines have been credited with bringing down the rate of triplets or more, but the patient-centered arguments for doing so are also strong. See, e.g., Katherine T. Pratt, Inconceivable? Deducting the Costs of Fertility Treatment, 89 CORNELL L. REV. 1121, 1188 (2004) ("Recent data also indicate that multiple birth rates attributable to IVF have declined significantly since the adoption of the new treatment protocols.").
65. For a discussion of other options in Europe, see Robertson, supra note 35, at 1695.
66. LA. REV. STAT. ANN. § 9:122 (1986);
67. Radhika Rao, Coercion, Commercialization, and Commodification: The Ethics of Compensation for Egg Donors in Stem Cell Research, 21 BERKE LEY TECH. L.J. 1055, 1057 (2006).
68. But see, e.g., VA. CODE ANN. § 32.1-291.16 (2007) ("With the exception of hair, ova, blood, and other self-replicating body fluids, it shall be unlawful for any person to sell, to offer to sell, to buy, to offer to buy, or to procure through purchase any natural body part for any reason.").
69. See, e.g., CAL. HEALTH & SAFETY CODE § 125350 (2007);
70. CONN. GEN. STAT. § 19a-32d (2005);
71. MASS. GEN. LAWS ch. IHL, § 8(c) (2005).
72. See, e.g., FLA. STAT. ANN. § 63.213(2)(f) (2003). It states: [T]he intended father and intended mother may agree to pay all reasonable legal, medical, psychological, or psychiatric expenses for the volunteer mother related to the preplanned adoption arrangement and may agree to pay the reasonable living expenses and wages lost due to the pregnancy and birth of the volunteer mother and reasonable compensation for inconvenience, discomfort, and medical risk. No other compensation, whether in cash or in kind, shall be made pursuant to a preplanned adoption arrangement.
73. Id.;
74. see also NEV. REV. STAT. ANN. § 126.045(3) (1995) ("It is unlawful to pay or offer to pay money or anything of value to the surrogate except for the medical and necessary living expenses related to the birth of the child as specified in the contract.");
75. WASH. REV. CODE § 26.26.210-250 ("No person, organization, or agency shall enter into, induce, arrange, procure, or otherwise assist in the formation of a surrogate parentage contract, written or unwritten, for compensation."). For an overview of these laws, see Center for American Progress, Guide to State Surrogacy Laws, www.americanprogress.org/ issues/2007/12/surrogacy-laws.html (last visited July 21, 2008).
76. John A. Robertson, Reproductive Technology in Germany and the United States: An Essay in Comparative Law and Bioethics, 43 COLUM. J. TRANSNAT'L L. 189, 209-10 (2004);
77. see also, e.g., Assisted Human Reproduction Act, 2004 S.C., ch.2, § 5 (Can.), available at http://laws. justice.gc.ca/en/ShowFullDoc/ cs/A-13.4///en;
78. Diana Brahams, The Hasty British Ban on Commercial Surrogacy, HASTINGS CTR. REP., Feb. 1987, at 16, 16-19 (vol. 17, no. 1) (discussing the British ban).
79. Using Preimplantation Embryos for Research, COMMITTEE OPINION (Am. Coll. of Obstetrics & Gynecology Comm. on Ethics, Washington, D.C.), Nov. 2006, at 1, 12;
80. INT'L SOC'Y FOR STEM CELL RESEARCH, GUIDELINES FOR THE CONDUCT OF HUMAN EMBRYONIC STEM CELL RESEARCH (2006), www.isscr.org/guidelines/ISSCRhESCguidelines2006.pdf.
81. See, e.g., Anuj Chopra, Childless Couples Look to India for Surrogate Mothers, CHRISTIAN SCI. MONITOR, Apr. 3, 2006, available at http://www.csmonitor.com/2006/0403/p01s04-wosc. html.
82. I put aside the question of her partner's right to reproduce through provision of gametes that are used for fertilization and the right of the egg donor to reproduce tout court.
83. There are, however, some untested bans on paying surrogates. See Lawrence Gostin, Surrogacy from the Perspectives of Economics and Civil Liberties, 17 J. CONTEMP. HEALTH L. & POL'Y 429, 430 (2001) ("The District of Columbia and Arizona ban surrogacy contracts. Florida, Michigan, Nevada, New Hampshire, New York, Virginia, Washington and West Virginia ban payments to surrogates, but have broad exceptions to allow the payment of expenses.").
84. See Ronald M. Green, Five Ethical Questions for SCNT Stem Cell Research, 9 MINN. J. L. SCI. & TECH. 131, 139 (2008) ("[S]everal states, including California and Massachusetts, passed laws prohibiting payment for eggs for research.").
85. Brendan Maher, Egg Shortage Hits Race to Clone Human Stem Cells, 453 NATURE 828-29 (2008). It has also led to the use of animal eggs or cybrids as an alternative, which creates in turn the need for additional policy statements and guidelines from ethics and regulatory bodies.
86. See Stephen R. Munzer, Human-Nonhuman Chimeras in Embryonic Stem Cell Research, 21 HARV. J.L. & TECH. 123 (2007).
87. It may be that women are especially at risk here because of their limited access to education and job opportunities, especially in less developed countries. For some of the problems with paying research subjects under a market approach, see Carl Elliott, Guinea-Pigging, NEW YORKER, Jan. 7, 2008, at 36.
88. See supra Part LB. Opposition to gay reproduction might spur such efforts, since gay males will usually need to pay egg donors and surrogates to have offspring.
89. HENRY SUMNER MAINE, ANCIENT LAW 170 (1861) ("The movement of the progressive societies has hitherto been a movement from Status to Contract.").
90. Troxel v. Granville, 530 U.S. 57, 60 (2000).
91. Id. at 66, 68-69.
92. See John A. Robertson, Gay and Lesbian Access to Assisted Reproductive Technology, 55 CASE W. RES. L. REV. 323 (2004).
93. See id. at 324.
94. Goodridge v. Department of Public Health, 789 N.E.2d 941, 943 (Mass. 2003), takes an equal protection approach based on equal treatment of offspring born to same-sex couples. The court cited approvingly earlier state cases on the legality of ARTs.
95. Robertson, supra note 61, at 325.
96. See N. Coast Women's Med. Group, Inc. v. Superior Court, 40 Cal. Rptr. 3d 636 (Cal. Ct. App. 2006).
97. Interestingly, repeat surrogates say that they prefer to work with gay male couples because such couples are less complicated. Ginia Bellafante, Surrogate Mothers' New Niche: Bearing Babies for Gay Couples, N.Y. TIMES, May 27, 2005, at Al.
98. See, e.g., Carolyn J. Chachkin, What Potent Blood: Non-Invasive Prenatal Genetic Diagnosis and the Transformation of Modern Prenatal Care, 33 Am. J.L. & Med. 9, 10-11 (2007).
99. See Human Genome Project: SNP Fact Sheet, http://www.ornl.gov/sci/ techresources/ Human-Genome/faq/snps.shtml (last visited July 21, 2008).
100. These are not cost-free decisions and there are many reasons why most parents will not seek non-specific genetic screening. See infra Part II.
101. The winners of the 2007 Nobel Prize in Biology recognized the scientific basis of genetic engineering; they used the principle of homologous recombination, building from studies in which scientists had previously "found that artificial DNA of known sequence could engage in homologous recombination with mouse DNA, and exploited this to target specific mouse genes." Alison Abbott, Biologists Claim Nobel Prize with a Knock-Out, 499 NATURE 642 (2007).
102. Id.
103. Id. More than 500 different types of knock-out mice now exist, and a worldwide effort has been launched to knock out every single gene in the mouse genome.
104. Cre-lox gene provides a switch that enables this to be done in mice, but it has not yet been done in humans. Id.
105. Some thinkers advocate for a new agency to regulate reproductive technology. See Garrison, supra note 25, at 1648-51;
106. Franco Furger & Francis Fukuyama, A Proposal for Modernizing the Regulation of Human Biotechnologies, HASTINGS CENTER REP., July-Aug. 2007, at 16-20 (vol. 30, no. 4).
107. John A. Robertson, Procreative Liberty in the Era of Genomics, 29 AM. J.L. & MED. 439, 446-47 (2002).
108. This is under the standard liberal rights argument of autonomy.
109. Robertson, supra note 75, at 484.
110. But see David Hunter et al., Letting the Genome Out of the Bottle-Will We Get Our Wish?, 358 N. ENGL. J. MED. 105, 106 (2008) (questioning the accuracy and clinical utility of genome analysis).
111. Despite being touted for these purposes, preimplantation screening of embryos has not yet been shown to improve live-birth rates in patients with advanced maternal age, previous implantation failure, or recurrent pregnancy loss due to aneuploidy. Practice Comm. of the Soc'y of Assisted Reprod. and the Practice Comm. of the Am. Soc'y of Reprod. Med., Preimplantation Genetic Testing: A Practice Committee Opinion, 88 FERTILITY & STERILITY 1497, 1501-02 (2007).
112. The same is true for creating embryonic stem cells without destroying embryos, as Robert Lanza and a team at Advanced Cell Technology claimed to have done. Rick Weiss, Lab Cites Stem Cell Advance; Method of Harvest Could Leave Embryos Undamaged, WASH. POST, Jan. 11, 2008, at A4.
113. Would there, or should there, then, be a duty for parents to have it to protect their unborn children?
114. Of course, genome-wide scans of embryos might change matters. Few people argue against discard of affected embryos, and even fewer would argue that there is a duty to treat rather than discard.
115. On genetic enhancement generally, see ALLEN BUCHANAN, DAN W. BROCK, NORMAN DANIELS & DANIEL WIKLER, FROM CHANCE TO CHOICE: GENETICS AND JUSTICE 104-202 (2000).
116. The standard accounts of why reproductive autonomy and choice are valued do not argue for as broad a canopy of protection as "anything goes." Thus cloning when not infertile or genetic alteration on a lark would not fall within coherent conceptions of reproductive autonomy. See Robertson, supra note 75, at 460-80.
117. In the end, genetic alteration approaches to offspring may be so highly reductionist and mechanistic that they will prove unappealing except in the clearest cases. They assume that one nucleotide substitution will change everything, when in fact the world of organisms, not to mention social life, is much more complex. Yes, there may be a Darwinian desire to search for a reproductive advantage, as people do with post-birth rearing practices to give their children a step up. In the end, however, such manipulations may be so far removed from core understandings of why reproductive autonomy is valued as to not qualify for the protection accorded core reproductive interests.
118. See Nigel Goldenfeld & Carl Woese, Biology's Next Revolution, 445 NATURE 369 (2007), available at http://arxiv.org/abs/q-bio/0702015v1 (online version slightly expanded);
119. Carl Woese, A New Biology for a New Century, 68 MICROBIOLOGY & MOLECULAR BIOLOGY REV. 173 (2004), available at http://dx.doi.org/10.1128/MMBR.68.2.173-186. 2004.
120. Freeman Dyson, Our Biotech Future, N.Y. REV. BOOKS, July 19, 2007, at 4, 6, 8 (vol. 54, no. 12).
121. As an interesting sidelight, Freeman Dyson's daughter Esther, a well-known Internet entrepreneur and the first chair of the Internet Corporation for Assigned Names and Numbers, the organization that assigns Internet domain names, has publicly described her willingness to become part of George Church's Personal Genome Project, in which 10 persons at this stage and eventually 100,000 will post their genome sequence and medical records on the Internet in a public database available for researchers or others to use. If this project is an example of how amenable younger generations will be to revealing genomic information about themselves, then it is all the more likely that they will be interested in learning about prospective children's genomes and medical prospects, with alteration not far behind. Esther Dyson, Full Disclosure, WALL ST. J., July 25, 2007, at A15.
122. "Germline therapy involves the modification of all cells in the body, including those cells that produce gametes. Germline therapy affects those cells involved in reproduction, therefore scientists can alter heritable traits." Kristie Sosnowski, Genetic Research: Are More Limitations Needed in the Field?, 15 J.L. & HEALTH 121, 130 (2001).