Equal liberty: Assisted reproductive technology and reproductive equality

George Washington Law Review

Volumn 76, Issue 6, 2008, Pages 1457-1489

  Rao, Radhika ^a,b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b UNIVERSITY OF TRENTO   (Italy)

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EID: 59649113230     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (275)

1. One federal law simply creates a system for the accurate reporting of information regarding the efficacy of fertility treatments, see Fertility Clinic Success Rate and Certification Act of 1992, 42 U.S.C. §§ 263a-1 to -7 (2000), while most states have no laws regulating ARTs at all. A notable exception is Louisiana, which prohibits the destruction of spare embryos and requires them to be made available to others for "adoptive implantation."
2. See LA. REV. STAT. ANN. §§ 9:129-:130 (2000) (providing that "[a] viable in vitro fertilized human ovum is a juridical person which shall not be intentionally destroyed by any natural or other juridical person or through the actions of any other such person").
3. The state of Georgia recently created a commission - the Senate Study Committee on Rights Relating to Reproductive and Genetic Technology - in order to study issues involving ARTs and propose legislation. See S. Res. 280, 2007 Leg. Reg. Sess. (Ga. 2007). The Committee is contemplating recommending limits on the number of eggs that can be fertilized in IVF and requiring certain legal documents regarding embryo ownership in order to prevent disputes over frozen embryos.
4. See Sonji Jacobs, Ethical Boundaries of Baby-Making, ATLANTA J.-CONST., Sept. 17, 2007, at A1.
5. See THE PRESIDENT'S COUNCIL ON BIOETHICS, REPRODUCTION AND RESPONSIBILITY: THE REGULATION OF NEW BIOTECHNOLOGIES 208-09 (2004) (recommending federally funded studies on the impact of ARTs upon the health and well-being of women and of children born with their aid).
6. California law prohibits any compensation to women who donate their eggs for the purpose of human embryonic stem cell research, yet the state continues to permit unlimited payments to those who provide eggs for in vitro fertilization. See CAL. HEALTH & SAFETY CODE § 125350 (West 2006).
7. For a critique of this distinction, see Radhika Rao, Coercion, Commercialization, and Commodification: The Ethics of Compensation for Egg Donors in Stem Cell Research, 21 BERKELEY TECH. L.J. 1055 (2006).
8. Gonzales v. Carhart, 127 S. Ct. 1610, 1619 (2007).
9. For example, anti-abortion activists are attempting to place constitutional amendments on the ballot in a number of states in 2008 that would grant "personhood" to the embryo from the moment of conception. Such measures would not only outlaw all abortions, but they could also forbid embryo discard, limiting or even precluding some methods of assisted reproduction. See Judith Graham & Judy Peres, Rights for Embryos Proposed: Abortion Foes Push State Initiatives to Bestow "Personhood," CHI. TRIB., Dec. 3, 2007, at C7;
10. Nicholas Riccardi, Foes of Abortion Shift to States, L.A. Times, Nov. 23, 2007, at A1.
11. GESETZ ZUM SCHUTZ VON EMBRYONEN [Embryo Protection Act], Dec. 13, 1990, BGB1. I at 2746 (F.R.G.).
12. See 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, 203, 205 (2004).
13. Embryo Protection Act § 1(1), nos. 2-4;
14. see also Robertson, supra note 8, at 205.
15. Embryo Protection Act § 1(1), nos. 2-4;
16. see also Robertson, supra note 8, at 205.
17. Embryo Protection Act § 1(1), nos. 6-7;
18. see also Robertson, supra note 8, at 209.
19. Law 40/2004 of Feb. 19, 2004, 2004 Gazz. Uff. No. 45 (Feb. 24, 2004).
20. See Rachel Anne Fenton, Catholic Doctrine Versus Women's Rights: The New Italian Law on Assisted Reproduction, 14 MED. L. REV. 73, 74 (2006).
21. See Giuseppe Benagiano & Luca Gianaroli, Editorial, The New Italian IVF Legislation, 9 REPROD. BIOMEDICINE ONLINE 117, 122 (2004);
22. Fenton, supra note 13, at 73.
23. Benagiano & Gianaroli, supra note 14, at 124;
24. see also Fenton, supra note 13, at 73, 99.
25. Benagiano & Gianaroli, supra note 14, at 122;
26. see also Fenton, supra note 13, at 73, 84, 99.
27. Perhaps inspired by the Italian example, the Georgia Legislature is currently considering whether to set limits on the number of eggs that can be fertilized in IVF and prohibit embryo discard. See supra note 2. Other states may follow suit.
28. See supra note 6.
29. See, e.g., JOHN A. ROBERTSON, CHILDREN OF CHOICE: FREEDOM AND THE NEW REPRODUCTIVE TECHNOLOGIES (1994)
30. [hereinafter ROBERTSON, CHILDREN OF CHOICE];
31. John A. Robertson, Genetic Selection of Offspring Characteristics, 76 B.U. L. Rev. 421 (1996)
32. [hereinafter Robertson, Genetic Selection];
33. John A. Robertson, Liberty, Identity, and Human Cloning, 76 TEX. L. REV. 1371 (1998)
34. [hereinafter, Robertson, Liberty, Identity];
35. see also Sonia M. Suter, A Brave New World of Designer Babies?, 22 BERKELEY TECH. L.J. 897, 950 (2007) (summarizing Robertson's views).
36. See ROBERTSON, CHILDREN OF CHOICE, supra note 18, at 16;
37. Suter, supra note 18, at 250.
38. in the context of disputes over frozen embryos, Glenn Cohen reasons that there is no "naked" right not to be a genetic parent, unbundled from the obligations of gestational and legal parenthood. See I. Glenn Cohen, The Constitution and the Rights Not to Procreate, 60 STAN. L. REV. 1135, 1165-67 (2008). Accordingly, he concludes that the U.S. Constitution does not compel any single answer to embryo disputes, so states have the legal discretion to select whatever approach they prefer.
39. See id. at 1196. More broadly, Professor Cass Sunstein suggests that the "due process traditionalism" approach (which he himself disclaims) applied by the Supreme Court in cases like Washington v. Glucksberg, 521 U.S. 702 (1997),
40. and Michael H. v. Gerald D., 491 U.S. 110 (1989), might even permit the government to ban all use of reproductive technologies because of the complete absence of any tradition of constitutional protection.
41. See Cass R. Sunstein, Is There a Constitutional Right to Clone?, 53 HASTINGS L.J. 987, 989-92 (2002).
42. See Sonia M. Suter, Advanced Reproductive Technologies Seen Through the "Repugnance" Lens of Carhart v. Gonzales and Other Theories of Reproductive Rights, 76 GEO. WASH. L. REV. 1514, 1538 (2008) (noting that "[o]ne could argue that procreative liberty protects autonomous decisionmaking about any matters involving reproduction - a virtually unbounded conception").
43. See Ry. Express Agency, Inc. v. New York, 336 U.S. 106, 112 (1949) (Jackson, J., concurring) ("Invalidation of a statute or an ordinance on due process grounds leaves ungoverned and ungovernable conduct which many people find objectionable. Invocation of the equal protection clause, on the other hand, does not disable any governmental body from dealing with the subject at hand.").
44. Equality preserves fundamental liberties by requiring that legislators deprive themselves of the same liberties they would deny to others. See Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 300 (1990) (Scalia, J., concurring);
45. Ry. Express Agency, Inc., 336 U.S. at 112-13 (Jackson, J., concurring).
46. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 73, 105 (1980).
47. See Rebecca L. Brown, Liberty, The New Equality, 77 N.Y.U. L. REV. 1491, 1498 (2002) (arguing that the same principles underlying Ely's theory of representation-reinforcement apply not only to discrimination against protected classes, but also to the deprivation of fundamental liberties).
48. Meyer v. Nebraska, 262 U.S. 390 (1923).
49. Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925).
50. Skinner v. Oklahoma, 316 U.S. 535 (1942).
51. Roe v. Wade, 410 U.S. 113 (1973).
52. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (plurality opinion).
53. See supra note 18 and accompanying text.
54. See supra note 19 and accompanying text.
55. The Fourteenth Amendment's Due Process Clause provides: No State shall "deprive any person of life, liberty, or property, without due process of law." U.S. CONST, amend. XIV, § 1.
56. in general, the Supreme Court has adopted the practice of reading history and tradition quite narrowly. See Washington v. Glucksberg, 521 U.S. 702, 710-22 (1997);
57. Michael H. v. Gerald D., 491 U.S. 110, 122-23 (1989) (plurality opinion);
58. cf. Cohen, supra note 20, at 1165 ("[T]he days of expansively adding to what is protected by substantive due process rights, if not over, are substantially reigned in.").
59. Suter, supra note 21, at 1541-42.
60. See JUDITH DAAR, REPRODUCTIVE TECHNOLOGIES AND THE LAW 36 (2006) (noting that IVF was first successfully used in 1978).
61. See John A. Robertson, Extending Preimplantation Genetic Diagnosis: Medical and Non-Medical Uses, 29 J. MED. ETHICS 213, 214 (2003) (noting that PGD was first introduced in 1990).
62. See Reno v. ACLU, 521 U.S. 844, 867-68 (1997) (applying First Amendment protections to communications on the Internet).
63. See Kyllo v. United States, 533 U.S. 27, 40 (2001).
64. See Jack M. Balkin, How New Genetic Technologies Will Transform Roe v. Wade, 56 EMORY L.J. 843, 856 (2007) (observing that "[t]he question will be whether the privacy principle applies in the new technological context, just as courts have asked whether free speech principles apply to the Internet").
65. See ROBERTSON, CHILDREN OF CHOICE, supra note 18, at 99-100.
66. Occasionally, the Supreme Court looks to history and tradition at a broader level of generality. See Roe v. Wade, 410 U.S. 113, 129 (1973);
67. Loving v. Virginia, 388 U.S. 1, 6-10 (1967);
68. see also Washington v. Glucksberg, 521 U.S. 702, 765-66 (1997) (Souter, J., concurring) (suggesting a more fluid analysis of history and tradition).
69. Eisenstadt v. Baird, 405 U.S. 438, 443 (1972) (protecting distribution of contraception to single persons);
70. Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (protecting a married couple's right to use contraceptives).
71. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 869 (1992) (plurality opinion) (reaffirming right to abortion);
72. Roe, 410 U.S. at 164 (1973) (protecting right to abortion).
73. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (striking down a law authorizing compulsory sterilization).
74. Eisenstadt, 405 U.S. at 453.
75. Indeed, at least one court has concluded that there is a constitutional right to have children, and that this right encompasses the use of reproductive technologies such as IVF. Lifchez v. Hartigan, 735 F. Supp. 1361, 1377 (N.D. III. 1990) ("It takes no great leap of logic to see that within the cluster of constitutionally protected choices that includes the right to have access to contraceptives, there must be included within that cluster the right to submit to a medical procedure that may bring about, rather than prevent, pregnancy.").
76. Meyer v. Nebraska, 262 U.S. 390, 393 (1923) (protecting parents' right to teach their child a foreign language).
77. Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35 (1925) (protecting parents' right to send their child to private school).
78. Wisconsin v. Yoder, 406 U.S. 205, 234 (1972) (protecting Amish parents' right to take their children out of public schools after the eighth grade).
79. See Suter, supra note 21, at 1526 (explaining that "the Supreme Court has noted repeatedly that the interest in procreative autonomy is not unlimited").
80. Glenn Cohen makes a similar point when he argues that "the Supreme Court's jurisprudence unquestionably protects a right not to be a gestational parent as a fundamental right, [but] it does not compel recognizing a right not to be a genetic parent, when genetic parenthood is unbundled from the obligations of legal and gestational parenthood."
81. Cohen, supra note 20, at 1135.
82. See Christyne L. Neff, Woman, Womb, and Bodily Integrity, 3 YALE J.L. & FEMINISM 327, 329 (1991) (arguing that the right of bodily integrity provides at once a narrower and stronger protection for abortion rights than the right of privacy);
83. Radhika Rao, Reconceiving Privacy: Relationships and Reproductive Technology, 45 UCLA L. Rev. 1077, 1112 (1998) ("The right of bodily integrity protects a woman's sole right to bar the fetus from entering her body by means of contraception and to rid her body of the fetus by means of abortion.").
84. According to Justice Blackmun, [C]ompelled continuation of a pregnancy infringes upon a woman's right to bodily integrity by imposing substantial physical intrusions and significant risks of physical harm. During pregnancy, women experience dramatic physical changes and a wide range of health consequences. Labor and delivery pose additional health risks and physical demands. In short, restrictive abortion laws force women to endure physical invasions far more substantial than those this Court has held to violate the constitutional principle of bodily integrity in other contexts. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 927 (1992) (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part).
85. See id. at 928 (declaring that "[b]y restricting the right to terminate pregnancies, the State conscripts women's bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care").
86. See Rao, supra note 53, at 1111-12.
87. See id. at 1112-13.
88. See id.
89. See Susan M. Wolf, Physician-Assisted Suicide, Abortion, and Treatment Refusal: Using Gender to Analyze the Difference, in PHYSICIAN ASSISTED SUICIDE 167,170,173 (Robert F. Weir ed., 1997) (declaring that the Constitution "clearly embraces the right to be free of unwanted bodily invasion" but that "it is not at all clear that it covers a right to be free to obtain bodily invasions for the purpose of ending your own life").
90. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261 (1990).
91. Id. at 278.
92. Washington v. Glucksberg, 521 U.S. 707 (1997).
93. Id. at 735. Other cases confirm that the Constitution does not confer an expansive right to die, but only a limited right to disconnect the body from the invasive medical apparatus keeping it alive. In Vacco v. Quill, the Supreme Court reasoned that the constitutional protection afforded to the right to refuse life-sustaining medical treatment in Cruzan "was grounded not... on the proposition that patients have a general and abstract 'right to hasten death,' ... but on well established, traditional rights to bodily integrity and freedom from unwanted touching-" Vacco v. Quill, 521 U.S. 793, 807 (1997) (citations omitted).
94. See Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. REV. 359, 364 (2000).
95. See Gonzales v. Carhart, 127 S. Ct. 1610, 1641 (2007) (Ginsburg, J., dissenting);
96. see also Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375, 386 (1985) (observing that Roe is "weakened ... by the opinion's concentration on a medically approved autonomy idea, to the exclusion of a constitutionally based sexequality perspective").
97. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 928 (1992) (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part).
98. Id. at 856 (majority opinion).
99. Skinner v. Oklahoma, 316 U.S. 535 (1942).
100. Id. at 539, 541.
101. Id.
102. Id. at 541.
103. See, e.g., John Robertson, Assisting Reproduction, Choosing Genes, and the Scope of Reproductive Freedom, 76 GEO. WASH. L. REV. 1490, 1493 (2008) ("Although [Skinner] couched its decision in the language of equality ... the rhetoric of a liberty right to reproduce ... explains the frequency with which the case is now cited.");
104. Suter, supra note 21, at 1520;
105. see also Ira C. Lupu, Untangling the Strands of the Fourteenth Amendment, 77 MICH. L. REV. 981, 1019 (1979).
106. Meyer v. Nebraska, 262 U.S. 390 (1923).
107. Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925).
108. Brown, supra note 25, at 1508 & n.84.
109. See id.
110. Loving v. Virginia, 388 U.S. 1 (1967).
111. Zablocki v. Redhail, 434 U.S. 374 (1978).
112. See id. at 387, 390-91;
113. Loving, 388 U.S. at 12.
114. Lawrence v. Texas, 539 U.S. 558 (2003).
115. Id. at 575, 578.
116. See Balkin, supra note 40, at 858;
117. Suter, supra note 18, at 959.
118. See, e.g., JANICE G. RAYMOND, WOMEN AS WOMBS (1993) (arguing that technological and contractual reproduction result in the reproductive exploitation of women);
119. BARBARA KATZ ROTHMAN, RECREATING MOTHERHOOD: IDEOLOGY AND TECHNOLOGY IN A PATRIARCHAL SOCIETY (1989);
120. SUSAN SHERWIN, NO LONGER PATIENT: FEMINIST ETHICS AND HEALTH CARE (1992);
121. see also REPRODUCTION, ETHICS, AND THE LAW: FEMINIST PERSPECTIVES (Joan C. Callahan ed., 1995).
122. See, e.g., Dorothy E. Roberts, Race and the New Reproduction, 47 HASTINGS L.J. 935, 937-44 (1996);
123. Dorothy E. Roberts, The Genetic Tie, 62 U. CHI. L. REV. 209, 209-14 (1995);
124. see also PATRICIA WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS: DIARY OF A LAW PROFESSOR (1991).
125. See Lisa C. Ikemoto, The In/Fertile, the Too Fertile, and the Dysfertile, 47 HASTINGS L.J. 1007, 1009, 1058-61 (1996) (exploring ways in which infertility discourse constructs boundaries that divide women into different categories and oppress women of color, poor women, and lesbians in different ways).
126. See Carey Goldberg, On Web, Models Auction Their Eggs to Bidders for Beautiful Children, N.Y. TIMES, Oct. 23, 1999, at All;
127. Harold M. Schmeck, Jr., Nobel Winner Says He Gave Sperm for Women to Bear Gifted Babies, N.Y. TIMES, Mar. 1, 1980, at A6.
128. See supra note 82 and accompanying text.
129. See, e.g., Adrienne Asch, Disability Equality and Prenatal Testing: Contradictory or Compatible?, 30 FLA. ST. U. L. REV. 315, 332-41 (2003);
130. cf. Adrienne Asch, Critical Race Theory, Feminism, and Disability: Reflections on Social Justice and Personal Identity, 62 OHIO ST. L.J. 391 (2001).
131. In Roe, for example, the Supreme Court found that a fetus is not a constitutional person before granting women the right to terminate their pregnancies. Roe v. Wade, 410 U.S. 113, 157-58 (1973).
132. See Radhika Rao, Property, Privacy, and Other Legal Constructions of the Embryo 1 (Aug. 10, 2008) (unpublished manuscript, on file with author).
133. Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992).
134. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992);
135. Roe, 410 U.S. at 164-65.
136. I have previously argued: [There is a] right to prevent intrusions into the body by means of contraception and a right to free the body of intruders by means of abortion[, but if] it ultimately becomes possible to expel the fetus intact from a woman's body, without injuring it in the process, nothing in the case law suggests that there also exists a right to destroy the fetus, at least so long as the new procedure poses no threat to the life or health of the mother. Radhika Rao, supra note 53, at 1114 (1998). Laurence Tribe has similarly argued: [T]he liberty that is most plainly vindicated by the right to end one's pregnancy is the woman's liberty not to be made unwillingly into a mother, the freedom to say no to the unique sacrifice inherent in the processes of pregnancy and childbirth. A 'right' not to have a biological child in existence-the right during pregnancy, for example, to destroy one's fetus rather than simply being unburdened of it-is analytically distinct, and seems harder to support. . . . While there may be arguments in favor of recognizing a woman's right, early in pregnancy, to destroy the fetus growing within her for the very purpose of preventing a living child of hers from coming into being, this is not the liberty the Court undertook to protect in Roe. LAURENCE H. TRIBE, ABORTION: THE CLASH OF ABSOLUTES 98-99 (1992).
137. Roe, 410 U.S. at 160, 164-65.
138. See Jed Rubenfeld, On the Legal Status of the Proposition that "Life Begins at Conception," 43 STAN. L. REV. 599, 620-23 (1991) (discussing the strengths and weaknesses of the proposition that life begins at viability).
139. Professor Jed Rubenfeld emphasizes this element, observing that "[v]iability occurs not only at the time when the fetus's pulmonary capability begins, but also when its brain begins to take on the cortical structure capable of higher mental functioning," and arguing that "[t]hese two important developments provide indicia both of independent beingness and of distinctly human beingness."
140. Id. at 622-23.
141. See id. at 622-23 & n.108 (citations omitted).
142. See supra text accompanying notes 53-81.
143. Laurence H. Tribe, Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. L. REV. 1, 27-28 (1973).
144. See Stenberg v. Carhart, 530 U.S. 914, 921-22 (2000) (describing partial-birth abortion).
145. Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108-105, 117 Stat. 1201 (codified at 18 U.S.C. § 1531 (Supp. IV 2004)).
146. Gonzales v. Carhart, 127 S. Ct. 1610, 1619 (2007).
147. See supra note 94 and accompanying text.
148. Gonzales, 127 S. Ct. at 1628, 1634-35;
149. see also id. at 1650 (Ginsburg, J., dissenting) ("Instead of drawing the line at viability, the Court refers to Congress' purpose to differentiate 'abortion and infanticide' based not on whether a fetus can survive outside the womb, but on where a fetus is anatomically located when a particular medical procedure is performed.").
150. Id. at 1628, 1634-35 (majority opinion).
151. Transcript of Oral Argument at 14-15,
152. Gonzales, 127 S. Ct. 1610 (No. 05-380).
153. Id. at 16.
154. Id. at 17.
155. The case may simply be unprincipled in its departure from recent precedent, see Stenberg v. Carhart, 530 U.S. 914 (2000), or its sole justification may be Dr. Leon Kass' "repugnance" principle - that it is permissible to outlaw practices at which we recoil - which is not much of a principle at all.
156. See Suter, supra note 21, at 1582-83
157. (citing Leon R. Kass, The Wisdom of Repugnance, NEW REPUBLIC, June 2, 1997, at 17).
158. See Sheryl Gay Stolberg, Key Republican Backs Cloning in Research, N.Y. TIMES, May 1, 2002, at A20.
159. David Corn, Leave No Embryo Behind! Dissecting the Messy Politics of Stem-Cell Research, SEATTLE WKLY., July 18, 2001, at 26.
160. See Human Cloning Ban and Stem Cell Research Protection Act of 2005, S. 876, 109th Cong. (2005);
161. see also Stolberg, supra note 110.
162. Stolberg, supra note 110.
163. Corn, supra note 111, at 26-27.
164. See supra text accompanying notes 108-09.
165. See Stolberg, supra note 110.
166. See supra text accompanying notes 103-05.
167. See supra text accompanying notes 103-09.
168. See id.
169. See id.
170. DAAR, supra note 36, at 35-37.
171. See supra notes 7-16 and accompanying text.
172. See Gonzales v. Carhart, 127 S. Ct. 1610, 1638 (2007) (upholding the partial-birth abortion ban without a health exception);
173. see also supra text accompanying note 109.
174. See supra note 14 and accompanying text.
175. Skinner v. Oklahoma, 316 U.S. 535 (1942).
176. Id. at 539, 541.
177. Id. at 541.
178. See, e.g., Lupu, supra note 72, at 1019;
179. Robertson, supra note 72, at 1492-93.
180. Eisenstadt v. Baird, 405 U.S. 438 (1972).
181. id. at 443, 453.
182. Lawrence v. Texas, 538 U.S. 560 (2003).
183. id. at 578-79.
184. See supra note 14 and accompanying text.
185. See infra Part III.B.
186. See id.
187. See id.
188. See Romer v. Evans, 517 U.S. 620, 623, 633-36 (1996) (striking down a law that discriminated against homosexuals based solely upon their status and that was inexplicable by anything other than animus against the group).
189. See FLA. STAT. § 63.042 (2008); Lofton v. Sec'y of the Dep't of Children & Family Servs., 358 F.3d 804, 827 (2004) (upholding the constitutionality of § 63.042).
190. Homosexuals have recently gained the right to marry in a number of states, including California and Massachusetts. See In re Marriage Cases, 183 P.3d 384, 453 (Cal. 2008);
191. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 950 (Mass. 2003).
192. See Stanley v. Illinois, 405 U.S. 645, 647, 649, 656-57 (1972) (invalidating statute that presumed unwed biological fathers are unfit and automatically deprived them of their children upon the mother's death).
193. See Santosky v. Kramer, 455 U.S. 745, 747-48 (1982) (requiring clear and convincing evidence of abuse or neglect before state can constitutionally terminate parental rights).
194. Individuals who seek to become parents by adoption must often meet additional requirements that go far beyond proving minimal fitness to be a parent, such as providing evidence of financial stability or undergoing a home study. See, e.g., ARIZ. REV. STAT. ANN. § 8-105 (2008);
195. MISS. CODE ANN. § 93-17-11 (2008).
196. See Benagiano & Gianaroli, supra note 14, at 122.
197. See Bragdon v. Abbott, 524 U.S. 624, 639-41 (1998); (holding that reproduction is a major life activity for the purposes of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12182(a) (2000)). Bragdon has thus "opened the proverbial door to asserting infertility as a disability."
198. Peter K. Rydel, Defining the Right to Reproduce: Asserting Infertility as a Disability Under the Americans with Disabilities Act, 63 ALB. L. REV. 593, 635 (1999).
199. See ROBERTSON, CHILDREN OF CHOICE, supra note 18, at 100.
200. Indeed, organizations such as RESOLVE exist solely to promote the interests of the infertile through advocacy, lobbying, and public education. RESOLVE: The National Infertility Association, http://www.resolve.org/site/ PageServer (last visited July 16, 2008).
201. See Michele Goodwin, Prosecuting the Womb, 76 GEO. WASH. L. REV. 1657, 1716-20 (2008) (observing that infertility afflicts persons of all races).
202. Carl Coleman has observed that: There is no reason to believe that persons seeking to use ARTs lack the ability to pursue their interests effectively in the political process. Such individuals are not only disproportionately white and wealthy, but their interests also overlap with those of organized medicine and the pharmaceutical industry, two interest groups with considerable influence in the political process. Carl H. Coleman, Assisted Reproductive Technologies and the Constitution, 30 FORDHAM URB. L.J. 57, 68-69 (2002).
203. See DEBORA L. SPAR, THE BABY BUSINESS: HOW MONEY, SCIENCE, AND POLITICS DRIVE THE COMMERCE OF CONCEPTION 33 (2006) (estimating that, in the United States alone, fertility treatments constitute a business worth nearly $3 billion a year, not including the costs of "consultants, lawyers, equipment suppliers, and various types of counselors").
204. See Coleman, supra note 148, at 68-69.
205. Such legislative concern for the infertile is apparent in California, which recently enacted a law that prohibits any compensation for women who donate their eggs for the purpose of hESCR, even though the State continues to permit unlimited payments to those who provide eggs for the purpose of fertility treatments. See supra note 4.
206. See Goodwin, supra note 147, at 1726-27 (citing such studies).
207. See Marsha Garrison, Regulating Reproduction, 76 GEO. WASH. L. REV. 1623, 1643-46 (2008);
208. Robertson, supra note 72, at 1501.
209. See Garrison, supra note 153, at 1643-46;
210. Robertson, supra note 72, at 1501.
211. See Lawrence v. Texas, 539 U.S. 558, 571, 578-79 (2003);
212. Romer v. Evans, 517 U.S. 620, 623, 633-36 (1996).
213. Human Cloning Prohibition Act of 2003, H.R. 534, 108th Cong. (2003);
214. Human Cloning Prohibition Act of 2001, H.R. 2505, 107th Cong. (2001).
215. See ARK. CODE ANN. § 20-16-1002 (2008);
216. IND. CODE § 16-34.5-1-2 (2008);
217. MICH. COMP. LAWS §§ 333.16274-.16275 (2008);
218. N.D. CENT. CODE § 12.1-39-02 (2008);
219. S.D. CODIFIED LAWS §§ 34-14-26 to -28 (2008).
220. See Robertson, Liberty, Identity, supra note 18, at 1409 (proposing the argument that infertile persons may have a right to clone in order to create genetically related children).
221. See, e.g., CLONING HUMAN BEINGS, REPORT AND RECOMMENDATIONS OF THE NATIONAL BIOETHICS ADVISORY COMMISSION 107, 108 (1997) (describing concerns about the safety of cloning procedures).
222. Vacco v. Quill, 521 U.S. 793 (1997).
223. Id. at 796-97.
224. Id. at 800-02.
225. Benagiano & Gianaroli, supra note 14, at 122;
226. see also Fenton, supra note 13, at 73, 84, 99.
227. See, e.g, In re Baby M., 537 A.2d 1227, 1234-35 (N.J. 1988).
228. See id. at 1236-37 (involving surrogate mother who changed her mind);
229. see also Jhordan C. v. Mary K., 224 Cal. Rptr. 530, 531-33 (Cal. Ct. App. 1986) (upholding parental rights of a sperm donor who changed his mind because woman "failed to take advantage of . . . statutory basis for preclusion of paternity").
230. See supra note 11 and accompanying text.
231. See Rao, supra note 4, at 1063.
232. See id. at 1063 & n.30.
233. See, e.g., Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 472-73 (1981) (upholding a California statutory rape law making it a crime to have sex with underage females but not underage males on grounds that females biologically bear the costs of pregnancy).
234. See, e.g., Nguyen v. INS, 533 U.S. 53, 56-59, 64 (2001) (upholding immigration law making it more difficult for child born abroad to become a citizen if the citizen parent is the father rather than the mother).
235. In Roe v. Wade, 410 U.S. 113, 158 (1973), the Supreme Court held that "the word 'person,' as used in the Fourteenth Amendment, does not include the unborn."
236. See, e.g., ARIZ. REV. STAT. § 13-1103(A)(5), (B) (LexisNexis 2007) (manslaughter);
237. ILL. COMP. STAT. 5/9-1.2, -2.1, -3.2 (2006) (murder, manslaughter);
238. IND. CODE § 35-42-1-6 (1998) (feticide);
239. LA. REV. STAT. ANN. §§ 14:2(7), :32.5-.8 (2007) (feticide);
240. MINN. STAT. §§ 609.266, .2661-.2665, .268(1) (2003) (murder, manslaughter);
241. N.D. CENT. CODE § 12.1-17.1-01 to -04 (1997) (murder, manslaughter, negligent homicide);
242. UTAH CODE ANN. §§ 76-5-201-03, -205-09 (2003 & Supp. 2007) (any form of homicide).
243. 18 U.S.C. § 1841 (Supp. 2005).
244. Id. § 1841(a)(1)-(2)(A).
245. See Suter, supra note 21, at 1531 n.103 (noting difficulties in distinguishing between traits and diseases).
246. See Michael Ashley Stein, Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination, 153 U. PA. L. REV. 579, 615 n.147 (2004).
247. However, this generalization may not hold true in all circumstances. In the 1970s, testing for the gene for sickle-cell anemia, which is disproportionately possessed by African Americans, see id., often served as the basis for racial discrimination in employment, insurance, and other contexts. As Vernellia Randall describes: The military considered banning all African Americans from the armed services. African American airline stewardesses were fired. Insurance rates went up for carriers. Some companies refused to insure carriers. During that period, many African Americans came to believe that the sickle-cell screening initiative was merely a disguised genocide attempt, since often the only advice given to African Americans with the trait was, 'Don't have kids.'
248. Vernellia R. Randall, Slavery, Segregation and Racism: Trusting the Health Care System Ain't Always Easy! An African American Perspective on Bioethics, 15 ST. LOUIS U. PUB. L. REV. 191, 201 (1996) (citation omitted).
249. See Suter, supra note 21, at 1538.
250. Of course, some scholars would dispute the characterization of deafness and dwarfism as "disabilities," arguing that these qualities are also disfavored because of negative societal attitudes and prejudice. Lois Shepherd, Protecting Parents' Freedom to Have Children with Genetic Differences, 1995 U. ILL. L. REV. 761, 761-63;
251. see also Dena S. Davis, Genetic Dilemmas and the Child's Right to an Open Future, 28 RUTGERS L.J. 549, 570 (1997) ("Many Deaf people ... have recently been claiming that Deafness is better understood as a cultural identity than as a disability.").
252. Thus, in Palmare v. Sidoti, 466 U.S. 429 (1984), the Supreme Court reversed a trial court's decision to award custody of a white child to her white father based upon the child's "best interests" when the child's mother remarried an African American man.
253. Id. at 432-33. Although the Court acknowledged that racial prejudice is real and could harm the child, it stated that "[p]rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."
254. Id. at 433.
255. Human Fertilisation and Embryology Act of 1990, Ch. 37, § § 5-11, sched. 1 & 2 (Eng.).
256. Thus, in one recent case, a lesbian domestic partner sued two physicians and her medical provider, alleging that they refused to perform artificial insemination on her in violation of the Unruh Civil Rights Act, which prohibits discrimination by public accommodations on the basis of sexual orientation. See N. Coast Women's Care Med. Group, Inc. v. Superior Court, 40 CaI. Rptr. 3d 636, 638 (Cal. Ct. App. 2006). The California Court of Appeals, however, held that there was a genuine issue of fact as to whether her physicians refused to perform the procedure because of plaintiff's unmarried status, which was legal at the time, or because of her sexual orientation, which was forbidden under California law.
257. See id. at 642-43.
258. See Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 69 (1976) (striking down a law requiring spousal consent to abortion).
259. See Davis v. Davis, 842 S.W.2d 588, 603-04 (Tenn. 1992) (holding that a husband's right not to procreate outweighed his ex-wife's right to procreate by donating extra embryos to others).
260. See LA. REV. STAT. ANN. §§ 9:129-:130 (2000) (prohibiting destruction of extra embryos and requiring them to be made available to others for "adoptive implantation").
261. 18 PA. CONS. STAT. ANN. § 3204(c) (West 2000) ("No abortion which is sought solely because of the sex of the unborn child shall be deemed a necessary abortion.").
262. 720 ILL. COMP. STAT. ANN. 510/6(8) (West 2003) ("No person shall intentionally perform an abortion with knowledge that the pregnant woman is seeking the abortion solely on account of the sex of the fetus.").
263. For example, in 1994, the Indian parliament passed the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act ("PNDT"), which does not regulate abortion but instead bans only prenatal testing to determine the sex of the fetus. See Vineet Chander, "It's (Still) a Boy . . . ": Making the Pre-natal Diagnostic Techniques Act an Effective Weapon in India's Struggle to Stamp Out Female Feticide, 36 GEO. WASH. INT'L L. REV. 453, 453, 459-60 (2004). In 2003, this Act was amended, changing its title to the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act.
264. See Kristi Lemoine & John Tanagho, Gender Discrimination Fuels Sex Selective Abortion: The Impact of the Indian Supreme Court on the Implementation and Enforcement of the PNDT Act, 15 U. MIAMI INT'L & COMP. L. REV. 203, 203 n.1 (2007).
265. Of course, not all scholars agree with this distinction. Professor Robertson's expansive principle of reproductive autonomy, for example, protects access to any information that would be determinative of the individual's choice whether or not to reproduce, including prenatal tests that reveal the sex of the fetus. See Robertson, Genetic Selection, supra note 18, at 434.
266. See supra notes 146-51 and accompanying text.
267. Skinner v. Oklahoma, 316 U.S. 535 (1942).
268. Id. at 541.
269. Ry. Express Agency, Inc. v. New York, 336 U.S. 106, 111 (1948) (Jackson, J., concurring).
270. Id. at 112-13.
271. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 292 (1989) (Scalia, J., concurring).
272. Id. at 300.
273. See William N. Eskridge, Jr., Destabilizing Due Process and Evolutive Equal Protection, 47 UCLA L. REV. 1183, 1186 (2000) (arguing that due process protects individual liberty for minorities at the retail level, while equal protection potentially offers minority groups wholesale protection).
274. See David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. CHI. L. REV. 935, 939-46 (1989) (describing the differing interpretations of what constitutes a violation of the Equal Protection Clause).
275. See Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537, 542 (1982).