Politically Correct Eugenics

Abstract

Eugenics is a loaded word bringing to mind the horrors of Nazi Germany and here in the United States, our history of forced sterilizations. In Buck v. Bell, Justice Holmes upheld a sterilization law declaring that “three generations of imbeciles are enough.” Although eugenics has a negative connotation, family balancing (the term of art coined to refer to those who use preimplantation genetic diagnosis to pick an embryo of a certain gender) does not. In fact, it sounds empowering to be able to have a say in the gender of one’s baby. This Article explores new innovations in life sciences that make eugenics inevitable — for a certain class of people — those who can afford to pay for it. The designer baby thought experiment has been around for several decades, but until very recently the idea of actually being able to enhance an embryo was still very much science fiction. Enter CRISPR CAS 9, a new technology for editing genes in a cell’s DNA- which was heralded in late 2015 by the Journal Science as the “Breakthrough of the Year.” Although gene editing has been around since the 1970’s, until the advent of CRISPR CAS 9 , it was very difficult and had low success rates. CRISPR CAS 9 has the potential to make gene editing much simpler and eventually cheaper. In the next few decades, we can expect this technology to be used in conjunction with in vitro fertilization to help ensure that a fetus be free of certain diseases, have certain physical characteristics, and possibly even more. Due to commercial pressures (often driven by consumer-patients, who want autonomy in health care, but particularly in the realm of baby-making), we are unlikely to see legal roadblocks to designer babies in the United States. In this Article, I will lay out why I believe that the wild west of assisted reproduction will lead to the acceptance of gene editing. I explore the legal and ethical issues related to this, such as limits on the use of gene editing. I focus on how this development is likely to affect minorities and the poor, who will not be able to afford this technology. Finally, I will consider whether there is a way for this technology to proceed without having negative consequences on those who choose not to use this technology.