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Hastings Law Journal

Abstract

Current reproductive technologies have given parents the means to select against unwanted genetic characteristics by discarding or aborting genetically undesirable embryos or fetuses. Technologies such as preimplantation genetic screening and prenatal genetic testing allow parents to test embryos and previable fetuses, respectively, for genes associated with an array of nontherapeutic and therapeutic characteristics from eye color to sex to disease. Because regulation of access to these technologies seems likely, the Supreme Court will be called upon to address the constitutionality of these regulations. The Court will face difficult questions about the balance between the procreative liberty interest in accessing information provided by these technologies and the potentially conflicting government interest in regulating such access.

This Note articulates the problems with our current procreative liberty jurisprudence and proposes an alternate framework for balancing individual and States' rights. First, I argue that precedential case law allows for the construction of a broad procreative liberty interest in accessing reproductive technological information from both preimplantation and prenatal genetic tests. Second, to balance procreative liberty and State interests, I propose the use of an analytical framework based upon Tom Beauchamp and James Childress's four principles of bioethics: autonomy, nonmaleficence, beneficence, and distributive justice. My hope is that these four principles will provide an objective language that the Court can use to articulate its ethical concerns and to create a more transparent dialogue between the liberty and State interests at issue. Lastly, I apply the four principles and speculate about the constitutionality of regulating access to information provided by reproductive technologies.

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