This Article considers the moral and legal status of practices that aim to modify traits in human offspring. As advancements in reproductive biotechnology give parents greater power to shape the genetic constitution of their children, an emerging school of legal scholars has ushered in a privatized paradigm of genetic control. Commentators defend a constitutionally protected right to prenatal engineering by appeal to the significance of procreative liberty and the promise of producing future generations who are more likely to have their (...) lives go well. This 'new eugenics,' however, confronts us with ethical challenges that neither liberal arguments about autonomy, fairness, and consent, nor utilitarian arguments about preferences, happiness, and equality, are able to capture. I begin by analyzing the Supreme Court's modern substantive due process jurisprudence, as it bears on recent advancements and controversies in genetic science. After developing a doctrinal framework that could support an asserted right to genetic engineering, I draw on empirical research in behavioral psychology to examine the influence of eugenic norms on egalitarian attitudes and institutions. I predict that if parents become accustomed to choosing the genes of their children, it would be radically more difficult to give an influential account for why the successful should adopt a charitable posture toward those who are less fortunate. I argue that by shifting control over offspring DNA from chance to choice, enhancement will inflate a sense of individual entitlement for social and economic outcomes. I conclude that increasing willingness to prevent the birth of abnormal children distracts attention from institutions that fail to accommodate the limitations of imperfect people. Some may reply that producing people who better fit the roles society chooses to reward need not deter us from providing for people whose abilities fail to meet the demands of modern society. However, this reply misses the way that changes in reproductive practices can bring about changes in the way that we understand our identities and relationships. Eugenic solutions to social problems such as poverty, crime, and unemployment reshape the challenge of genetic disadvantage so that it is no longer one we address through collective measures such as public education, social services, and income redistribution, and instead becomes one for individual parents to prevent through donor screening, embryo discard, or selective abortion. (shrink)

An important feature of some recent jurisprudential writings is the tendency to reject the precept of liberal individualism which affirms the priority of the principles of the "right conduct" over the substantive conceptions of "the good". This rejection, explicit in a recent book by Rogers M. Smith, and implicit in a recent work by Guido Calabresi, leads to strikingly illiberal consequences; hence, this provides indirect confirmation that the priority of the right over the good constitutes the most reliable defense of (...) individual liberty against majoritarian oppression. In Smith, an attempt to replace this priority with the principle of "rational liberty" leads to the disappearance of the guarantees of minority rights against orthodox majorities; in Calabresi, the doctrine of weighing and balancing competing moral principles of "the good" fails to provide an explanation for the strongly held moral intuition that some external preferences have to be disqualified at the outset, before they enter the forum of moral bargaining. (shrink)

The thought that human embryos could command moral respect yet also be acceptably used in medical research has struck some as incoherent. Given some assumptions about why they deserve respect, however, the thought is not objectionable, indeed not even unusual.

Liberal theory seeks to achieve the moral and practical goods of toleration, civil peace, and mutual respect within modern pluralistic societies by excluding from public debate those arguments that arise from within formative conceptions about what gives value to human life. I ask whether it is reasonable to bracket, for purposes of public deliberation, our deepest moral views about genetic engineering. The answer to this question depends, at least in part, on how we come down on those moral issues that (...) such biotechnological practices presupposes. I argue that the moral language of liberal justice - of rights and duties, interests and opportunities, freedom and consent, equality and fairness - cannot speak to the moral concerns at the heart of such practices. My goal is not to indict liberalism as a valuable framework in many areas of theory and practice. I mean, instead, to challenge the suitability of liberalism to furnish a plausible and coherent account of the moral status for a range of biotechnological practices. (shrink)

This Article examines the influence of the Americans with Disabilities Act (ADA) on affective attitudes toward children with disabilities and on the incidence of disability-selective abortion. Applying regression analysis to U.S. natality data, we find that the birthrate of children with Down syndrome declined significantly in the years following the ADA's passage. Controlling for technological, demographic, and cultural variables suggests that the ADA may have encouraged prospective parents to prevent the existence of the very class of people the Act was (...) designed to protect. We explain this paradox by showing how specific ADA provisions could have given rise to demeaning media depictions and social conditions that reinforced negative understandings and expectations among prospective parents about what it means to have a child with a disability. We discuss implications for reproduction law and antidiscrimination policy. (shrink)

In a little noted passage in A Theory of Justice, John Rawls argued that genetic intervention in the traits of offspring may be morally required as a matter of distributive justice. Given that the “greater natural assets” of each “enables him to pursue a preferred plan of life[,]” Rawls wrote, the parties to the original position “want to insure for their descendents the best genetic endowment.…Thus over time a society is to take steps at least to preserve the general level (...) of natural abilities and to prevent the diffusion of serious defects.…The pursuit of reasonable policies in this regard is something that earlier generations owe to later ones.” Whether biological enhancement actually is a moral obligation we owe to future generations is a question that I have taken up elsewhere, but which lies beyond my scope here. If we agree with Rawls that some measure of safe and effective genetic intervention may be required as a matter of justice, it stands to ask how the distribution of genetic goods – that is, the hereditary basis of human traits – should be carried out. (shrink)

Liberal theory seeks to achieve toleration, civil peace, and mutual respect in pluralistic societies by making public policy without reference to arguments arising from within formative ideals about what gives value to human life. Does it make sense to set aside such conceptions of the good when it comes to controversies about stem cell research and the genetic engineering of people or animals? Whether it is reasonable to bracket our worldviews in such cases depends on how we answer the moral (...) questions that the use of these biotechnologies presuppose. I argue that the moral language of liberal justice – of rights and duties, interests and opportunities, freedom and consent, equality and fairness – cannot speak to these underlying concerns about what the human embryo is, why the natural lottery matters to us, and whether 'animal nature' is worth preserving. I conclude that liberal theory is incapable of furnishing a coherent or desirable account to govern the way we use our emerging powers of biotechnology. (shrink)