Reproductive autonomy and evolutionary biology: a regulatory framework for trait-selection technologies

The Constitution protects, in some measure, each person's autonomy in making basic decisions about family, parenthood, and procreation. This Article examines the extent to which courts should protect from government intrusions a parent's access to technologies that influence specific characteristics of offspring. Beginning with Supreme Court opinions that articulate constitutional and social values regarding reproductive autonomy, the Article explores how important new insights from evolutionary biology may supplement an understanding of human procreation. Specifically, the Article explains how trait selection can constitute an important part of larger "reproductive strategies" that powerfully affect an individual's "inclusive fitness" (itself a measure of reproductive success). It concludes that access to trait-selection technologies should receive the same federal protection from government intrusions as that afforded access to abortion. It proposes the first limit to that protection, however, when a parent seeks to select for a trait, or to use a technique, that would be clearly and significantly damaging to the future child. The Article subsequently divides the use of trait-selection technologies (TSTs) into eight contexts and proposes a preliminary framework by which a regulatory system could legitimately distinguish among them.