Brave New Eugenics: Regulating Assisted Reproductive Technologies in the Name of Better Babies

Kerry L. Macintosh, Santa Clara University School of Law

Abstract

Infertile men and women have been using assisted reproductive technologies (“ART”) to conceive children since the first “test-tube baby” was born in 1978. During the past decade, however, the federal government has begun to clamp down on ART, asserting safety concerns as grounds for banning novel technologies such as cloning, nuclear transfer, and ooplasm transfer. Some scholars and policymakers now want to extend governmental regulation to include conventional ART such as in vitro fertilization (“IVF”) and intracytoplasmic sperm injection (“ICSI”). They claim children conceived through ART face an increased risk of birth defects and other health problems. This Article examines the medical literature and exposes a key fact: the health problems observed in such children may be linked to the underlying characteristics of their infertile parents, rather than ART as such. Viewed in light of this literature, the demand for increased regulation amounts to an attempt to restrict the reproduction of disabled persons (the infertile) on the ground that their unhealthy offspring should never be born. But this is the same rationale eugenicists once used to justify enacting the sterilization laws of the twentieth century.

This Article concludes society should reject this new form of eugenics. The fertile majority should not enact coercive laws and regulations that undermine reproductive autonomy, oppress the infertile minority, stigmatize children, and weaken our commitment to egalitarianism.

Note: This article is published in the 2010 volume of the Journal of Law, Technology and Policy at pages 257-310.