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Home > ULR > Vol. 2013 > No. 1

 

Abstract

This Article draws on postmodern theory to develop a framework for analyzing situations in which liberty and equality appear to conflict. It uses the debate over nontherapeutic preimplantation genetic diagnosis as an example. Preimplantation genetic diagnosis is almost entirely unregulated within the United States, and there seems to be relative consensus that its use for therapeutic or medical trait selection—for example, selection against certain genetic and chromosomal disorders— should be permitted. There is substantial disagreement, however, as to whether its use for nontherapeutic or nonmedical trait selection— selection based on prospective parents’ preferences for a particular sex, eye color, hair color, skin color, or even “disability,” for example— should be permitted. This Article considers whether it would be constitutional to ban nontherapeutic trait selection. While some have argued that liberty requires giving prospective parents free reign to select their prospective children’s traits, others have argued that equality requires constraining such selections. Proponents of liberty typically worry that banning nontherapeutic trait selection would infringe on parental rights to make decisions about procreation and child rearing, while proponents of equality typically worry that allowing nontherapeutic trait selection will result in a proliferation of blondhaired, blue-eyed, light-skinned, nondisabled males and exacerbate existing identity hierarchies.

While these are the dominant arguments from liberty and equality, postmodern theory illustrates that they are not the only arguments. There are, in fact, liberty arguments in favor of banning nontherapeutic trait selection and equality arguments in favor of allowing it. One might, for example, argue that liberty requires banning nontherapeutic trait selection in the interest of enabling children to self-determine rather than being forced to live out the stereotypes associated with the traits their parents selected. Or one might argue that equality requires allowing nontherapeutic trait selection in the interest of treating therapeutic and nontherapeutic selection similarly, since it can in some cases be difficult to categorize a given selection as definitively therapeutic or nontherapeutic. Alternatively, one might argue that equality requires allowing nontherapeutic trait selection in the interest of treating selection among embryos the same as selection among sperm or ova donors, given that sperm and ova banks presently give prospective parents broad discretion to select among donors based on traits such as appearance and ability. There are, in other words, liberty and equality arguments on both sides of the debate. And, inasmuch as the Fourteenth Amendment protects both liberty and equality, this Article argues that we ought to avoid privileging one right at the expense of the other. It proposes that, when presented with multiple interpretations of liberty and equality, we ought to select those that are most likely to further our commitment to democracy, and that we can accomplish this by interpreting both rights with the goal of promoting diversity. Applying this principle to the debate over nontherapeutic trait selection, this Article concludes that, based on the current evidence, prospective parents should be given relatively broad latitude to make choices about their prospective children’s traits.

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