[Paleopsych] Hedgehog Review: Lori B. Andrews: People as Products: The Conflict between Technology and Social Values

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Hedgehog Review: Lori B. Andrews: People as Products: The Conflict 
between Technology and Social Values

          Lori B. Andrews, J.D., is Distinguished Professor of Law at
    Chicago-Kent College of Law and the Director of the Institute of
    Science, Law and Technology at Illinois Institute of Technology. Her
    books include: Body Bazaar: The Market for Human Tissue in the
    Biotechnology Age ( code 2001 /code , with Dorothy Nelkin); Future
    Perfect: Confronting Decisions about Genetics ( code 2001 /code ); The
    Clone Age: Adventures in the New World of Reproductive Technology
    (1999); and Between Strangers: Surrogate Mothers, Expectant Fathers,
    and Brave New Babies (1989).

          Twenty years ago, on a ranch in Escondido, California, Robert
    Klark Graham opened the Repository for Germinal Choice, offering the
    sperm of Nobel Laureates and other "genius" donors to couples who
    wanted to create more intelligent children. Over code 200 /code
    children were born via artificial insemination using sperm from the
    bank. In 1999, the doors to the repository closed. [3]^1 I'd like to
    be able to report that the sperm bank suspended operations because
    people realized the foolishness of trying to upgrade their children,
    but, in truth, the sperm bank had become quaintly obsolete. Even
    mainstream infertility clinics had begun to offer sperm and egg donors
    with favored traits. Dozens of websites and advertisements had
    appeared that marketed gamete donors with stellar SAT scores, athletic
    abilities, or fabulous looks. [4]^2 All three in the same donor now
    commands top dollar.

          We generally consider it a good thing when parents want to give
    their children advantages--such as a good education--that they
    themselves never had. We are comfortable with individual choices in
    this area. In fact, when the U.S. Supreme Court recently held that a
    program providing school vouchers to parents did not violate the
    Establishment Clause of the Constitution, the court underscored the
    importance of parental choice in education. [5]^3 Yet at the same
    time, we have concerns about social justice. We don't just auction off
    places in the best universities based on sheer ability to pay. We
    establish scholarships so that meritorious but poor students can
    attend elite, expensive colleges. Yet this entire paradigm--individual
    choice coupled with a concern for social justice--may go out the
    window when it comes to the biological revolution that promises to let
    parents choose the very characteristics of their children. Moreover,
    the business of designing our children may turn reproduction into a
    form of production, profoundly changing the nature of families and of

          It is now possible for a child to have up to five parents--a
    sperm donor, an egg donor, the surrogate mother who carries the child,
    and the couple who raises him. Or--if the claims of Dr. Severino
    Antinori are to be believed and five women are pregnant with clones--a
    child might have just one parent. [6]^4 It is also possible to
    generate a genetic profile of a child before birth--or even of an
    embryo prior to implantation. Consequently, notions of family are
    being diversified and the concept of "normality" is being "upgraded."
    Twelve percent of potential parents, for example, say they would abort
    a fetus with a genetic propensity toward obesity.

The Role of Prenatal Screening

          Every year, approximately 60% of pregnant women (roughly code
    2.4 /code million) in the U.S. undergo prenatal screening to learn
    about the health of their babies-to-be. [7]^5 Seventy percent of
    pregnant women view their fetuses on ultrasound, checking to see if
    they are developing normally. [8]^6 A large percentage undergo a
    simple blood test that analyzes whether the baby will suffer from
    spina bifida or anencephaly. [9]^7 Some undergo chorionic villi
    sampling or amniocentesis. [10]^8 A few use the cutting-edge
    technology of preimplantation screening. [11]^9 With that procedure,
    the couple undergoes in vitro fertilization to create multiple
    embryos. Then each embryo is tested genetically, and the couple
    chooses to implant in the woman only those embryos that they consider

          Forty years ago, when prenatal screening was first introduced,
    bioethicist Paul Ramsey observed that the "concept of `normality'
    sufficient to make life worth living is bound to be `upgraded.'"
    [12]^10 That indeed has been the case. More and more genes have been
    identified, and parents have begun to screen for less and less serious
    disorders. Now some parents use prenatal screening and abortion not
    just for serious, life-threatening disorders such as Tay-Sachs disease
    (which is painful for the child and generally fatal by age three),
    [13]^11 but for less serious traits, diseases that are treatable, and
    disorders that will not manifest until much later in life.

          This trend has been exacerbated by the development of
    preimplantation screening. It is likely that couples will make
    different choices with that technology than they did with
    amniocentesis. When a woman undergoes amniocentesis in the fourth
    month of pregnancy, she may have already felt the fetus move inside of
    her. She may have bonded with the fetus. If she aborts based on a
    characteristic of the baby (such as the fact that it is a girl), she
    will have no child at all. In contrast, with preimplantation
    screening, the woman often creates multiple embryos and chooses only
    two or three to implant. If she learns the genetic makeup of her ten
    in vitro embryos through preimplantation screening, she cannot safely
    implant them all. It would be too dangerous for her and for the babies
    to have a multiple pregnancy. Even if she underwent preimplantation
    screening to choose embryos that did not carry a particular serious
    disorder, there might be too many such embryos. So, she might choose
    to implant only the subset of embryos that have a particular desired
    trait. She might, for example, implant only the males.

          Already, preimplantation screening has gone beyond application
    to genetic disorders that are fatal in childhood. In a controversial
    application described in the Journal of the American Medical
    Association, a couple chose to screen their embryo for a gene mutation
    related to Alzheimer's disease. [14]^12 Some considered this use
    unethical. Even if the child later developed the disease, he or she
    would have had decades of healthy, normal life before the disease
    manifested. Perhaps a cure would even have been developed during that

          As more and more prenatal monitoring techniques become
    available, social expectations may increase the likelihood that women
    will use them. "Women are increasingly pressured to use prenatal
    testing by claims that undergoing these tests is the `responsible
    thing to do,'" says disability rights activist Marsha Saxton.
    "Strangers in the supermarket, even characters in TV sit-coms, readily
    ask a woman with a pregnant belly, `Did you get your amnio?'" [15]^13
    A government agency, the Office of Technology Assessment of the U.S.
    Congress, exemplified this approach. After describing new genetic
    tests, an Office of Technology Assessment report stated "individuals
    have a paramount right to be born with a normal, adequate hereditary
    endowment." [16]^14 Similarly, the report of an NIH task force on
    prenatal diagnosis states: "There is something profoundly troubling
    about allowing the birth of an infant who is known in advance to
    suffer from some serious disease or defect." [17]^15

          Saxton has pointed out the strange contradiction: just at the
    political moment when laws such as the Americans with Disabilities Act
    are being enacted to protect people with disabilities, genetic
    technologies are aimed at preventing their birth. "It is ironic," says
    Saxton, "that just when disabled citizens have achieved so much, the
    new reproductive and genetic technologies are promising to eliminate
    their kind--people with Down Syndrome, spina bifida, muscular
    dystrophy, sickle cell anemia and hundreds of other conditions."
    [18]^16 "Prenatal screening seems to give women more power," says
    disability rights activist Laura Hershey, "but is it actually asking
    women to ratify social prejudice through their reproductive `choice'?"

          Along those lines, some couples have a desire to use
    technologies to predetermine a baby's sex. In India, China, Taiwan,
    and Bangladesh, technicians with portable ultrasound machines go from
    village to village scanning pregnant women who are desperate to learn
    whether they are carrying a boy. Many couples abort when they fail to
    see a penis on the tiny out-of-focus screen. In Bombay alone, code 258
    /code clinics offered amniocentesis for sex selection. [20]^18 In one
    study of code 8,000 /code abortions in India, code 7,999 /code were
    female fetuses, [21]^19 leading human rights activists to protest this
    clear evidence of "gyne"cide. In China, when the one-child policy was
    strictly enforced, families so preferred males that the sex ratio
    changed to code 153 /code males for each code 100 /code females.

          Thirty-four percent of U.S. geneticists said they would perform
    a prenatal diagnosis for a family who wanted a son, and another 28%
    said they would refer the couple to another doctor who would perform
    such testing. [23]^21 Dorothy Wertz, the social scientist at the
    Shriver Center for Mental Retardation in Waltham, Massachusetts, who
    conducted the study, said the percentage of practitioners willing to
    respond to sex selection request increased 10% from code 1985 /code to
    1995. "Autonomy just runs rampant over any other ethical principle in
    this country," Wertz says. "And it's only going to increase." [24]^22

          The overwhelming tilt toward boys is not as pronounced yet in
    the United States as it is in other countries, but social psychologist
    Roberta Steinbacher of Cleveland State University worries about the
    effect on society if couples were able to predetermine their baby's
    sex. Twenty-one percent of people say they would use a sex selection
    technique, with code 74 /code percent of the women and code 88 /code
    percent of the men desiring to ensure their firstborn would be a boy.
    Since other research reveals firstborns are more successful in their
    education, income, and achievements than latterborns, Steinbacher
    worries that "second class citizenship of women would be
    institutionalized by determining that the firstborn would be a boy."

          Prenatal screening can screen out certain traits, but it cannot
    add genetic characteristics that are not inherent in the parents'
    genomes. Consequently, some potential parents are turning to the aid
    of third parties--egg donors, sperm donors, or, in the future, gene
    donors to "upgrade" the traits of their children.

Donor Gametes

          The designing of children started subtly, as a result of
    individual choices in an open market. One couple offered $ code 50,000
    /code for an egg donor who was a smart, tall, Ivy League student. A
    man seeking to sell his sperm for $ code 4,000 /code a vial
    established a website with his family tree, claiming to trace his
    genes back to six Catholic saints and several European royal families.
    Thousands of couples now turn to the Internet to find genetic parents
    for their future children. They view pictures of sperm and egg donors,
    listen to tapes of their voices, and review pages of descriptions of
    their physical features, their hobbies, their SAT scores, their
    philosophies of life. At the Ronsangels.com website, couples bid on
    the eggs of attractive models.

          "Why is it okay for people to choose the best house, the best
    schools, the best surgeon, the best car, but not try to have the best
    baby possible?" the parents of a child conceived with sperm from a
    high-IQ donor asked a Toronto Star reporter. [26]^24 "You look, and
    you eliminate things that just aren't interesting to you, such as, one
    of the profiles had on it that they had a Richard Nixon nose," said
    Jacqueline Teepen, who appeared on Good Morning America to discuss her
    use of smart sperm. "That wasn't an interest of ours. We wanted
    somebody with hazel or blue eyes, we wanted the Bachelor's degree to
    be finished, working into the Master's or even a Ph.D. program." "I
    think it's wonderful," she continued. "I think the ability to select
    characteristics is simply wonderful." [27]^25 Yet is it so wonderful?
    As with prenatal screening, will it be used according to social
    biases? Already, a black woman in England sought a white egg donor--to
    create a child who would be less likely to be discriminated against.

          Victoria Kowalski was the first child born using sperm from a
    sperm bank. After her birth in April code 1982 /code to Joyce and Jack
    Kowalski of Scottsdale, Arizona, her parents sold the story rights to
    the National Enquirer for $ code 20,000 /code . "The odds are very
    good that our little girl will turn out to be a genius," Mrs. Kowalski
    told the National Enquirer. "I imagine her as a child studying college
    textbooks." [29]^27 The news of this bundle of joy was received with
    horror by Joyce's two children from a previous marriage, Donna and
    Eric, who were being raised by their father. Joyce had lost custody of
    those children after she and her new husband, Jack, had abused
    them--in an effort to make them smarter. Young Donna had been forced
    by her mother and stepfather to wear a sign that said "Dummy" on her
    forehead. It was chilling to think about the life ahead for
    Victoria--certainly in light of the expectations her parents had for
    her. "We'll begin training Victoria on computers when she's three, and
    we'll teach her words and numbers before she can walk," Jack Kowalski
    told the National Enquirer. [30]^28

          Similar enhanced expectations will come with reproductive
    cloning, where a child is created to mirror the favored genetic traits
    of another individual. Currently, human reproductive cloning is
    considered ethically unacceptable (and is banned in six states)
    [31]^29 in large measure because of the physical risks. One third of
    the cloned offspring in animal experiments die shortly before or
    shortly after birth. Even if cloning posed no physical risks, the
    emotional impact on the offspring could be devastating. If a cloned
    person's genetic progenitor is a famous musician or athlete, parents
    may exert an improper amount of coercion to get the child to develop
    those talents. True, the same thing may happen now--to a lesser
    degree--but the cloning scenario is more problematic. A parent might
    force a naturally-conceived child to practice the cello hours on end,
    but will probably give up eventually if the child seems uninterested
    or tone deaf. More fervent attempts to develop the child's musical
    ability will occur if the parents chose (or even paid for) genetic
    material from Yo-Yo Ma. And pity the poor child who is the clone of
    Michael Jordan. If he breaks his kneecap at age ten, will his parents
    consider him worthless? Will he consider himself a failure?

          A cloned child will be a child who is likely to be exposed to
    limited experiences and limited opportunities. Even if he or she is
    cloned from a person who has favored traits, the child may not get the
    benefit of that heritage. The child's environment might not provide
    him or her with the drive that made the original succeed. So many
    clones may be created from the favored original that their value and
    opportunities may be lessened. If the entire NBA consisted of Michael
    Jordan clones, then the game would be far less interesting and each
    individual less valuable.

          If the original Michael Jordan died young of an inheritable
    cardiac disorder, then his clones would find their futures restricted.
    They could be discriminated against by health insurers based on their
    predicted health risks. Reproductive cloning seems to violate what
    philosopher Joel Feinberg calls children's right to an "open future."

Genetic Enhancement

          As technology evolves, parents-to-be will have even more control
    over the traits of their offspring. In a variety of animal species,
    [33]^31 scientists have genetically engineered the offspring by adding
    an additional gene of interest--such as an extra NR2B gene to enhance
    memory. [34]^32 Researchers, for example, have put a firefly gene in
    tobacco plants, causing them to glow in the dark, and human cancer
    genes in mice. Now genetic engineering is being proposed for human
    embryos. It has been suggested that people's vision be expanded from
    the near ultraviolet to the near infrared and that genes be added so
    that people's urine changes colors when they begin to get sick so that
    they can be diagnosed early.

          The demand for gene insertion in embryos is likely to be quite
    high. In a Louis Harris poll sponsored by the March of Dimes, 42% of
    potential parents surveyed said they would use genetic engineering on
    their children to make them smarter, 43% to upgrade them physically.
    Another survey found that over a third of people wanted to tweak their
    children genetically to make sure they had an appropriate sexual
    orientation. With around code 4 /code million births per year in the
    U.S., that's a market for pre-birth genetic enhancement almost as
    large as that for Prozac or Viagra.

          Some scientists suggest modifying people with the gene to
    photosynthesize so that we could get our energy from the sun like
    plants and not waste money or time getting food. Law review articles
    are already raising questions about how to treat these new creations.
    If an individual had half animal and half human genes, would he be
    protected by the U.S. Constitution? When I asked my law students that
    question, one replied, "If it walks like a man, quacks like a man, and
    photosynthesizes like a man, it's a man."

          Germline genetic intervention on people may increase cancer
    risks, sterility, or other problems in the next generation. [35]^33
    Proponents of genetic engineering of animals and humans suggest that
    it is no different than selective breeding. But geneticist Jon Gordon
    points out that there are enormous differences when only a single gene
    is being introduced in a complex organism. Gordon notes that unlike
    selective breeding, where numerous favorable genes can be selected at
    one time, gene transfer selects only one gene and tries to improve a
    single trait in isolation. [36]^34 Gordon notes that this single-gene
    approach has, "despite more than code 10 /code years of effort, failed
    to yield even one unequivocal success." [37]^35 Instead it has
    produced disastrous results. When a gene shown to induce muscle
    hypertrophy in mice was inserted into a calf, the animal did exhibit
    the desired trait initially, but later exhibited muscle deterioration.
    [38]^36 The animal had to be shot. In a separate experiment,
    researchers genetically enhanced the wings of flies to be 300%
    stronger than average. Instead of creating a superfly, these flies
    couldn't even get off the ground because they were no longer able to
    move their wings fast enough.

          In another study, researchers enhanced mouse embryos with an
    extra NR2B gene linked to long-term memory and increased cognitive and
    mental abilities. The resulting animals (called "Doogie Howser" mice)
    seemed to move more quickly through mazes than the mice that had not
    been altered. [39]^37 Immediately, the question arose about whether
    such interventions should be undertaken on humans. Yet subsequent
    research, by other scientists, learned the genetic intervention had a
    downside. The Doogie Howser mice were more susceptible to long-term
    pain. [40]^38

Regulatory Abyss

          There is an astonishing lack of oversight for the technologies
    used to create children. Experimental procedures are introduced into
    clinical practices without sufficient protections for the subjects of
    these experiments. In other areas of medicine, research is initially
    funded by the federal government, and, by federal regulation, must be
    reviewed in advance by a neutral committee, the Institutional Review
    Board, before it can be tried on humans. Reproductive technologies
    have been held hostage to the abortion debate, and pro-life lobbyists
    have prevented federal funding of research on reproductive technology.
    Researchers can still submit their plans to hospital and university
    Institutional Review Boards, but they usually do not. In fact,
    according to IVF doctor Mark Sauer, IRB review of reproductive
    technology proposals is so rare as to be "remarkable."

          Even those rare studies that go before IRBs are not assessed for
    their social impact. The federal regulations covering IRBs
    specifically state that the reviewing committee should not address the
    social advisability of the project. The law says "the IRB should not
    consider possible long-range effects of applying knowledge gained in
    the research (for example, the possible effects of the research on
    public policy) as among those research risks that fall within the
    purview of its responsibility." [41]^39 In one instance, where a
    fertility doctor sought IRB approval, he had already started
    advertising the procedure before the IRB met. The IRB chairman said,
    "Our feeling was that if we approved his study, at least we could
    monitor his actions and collect meaningful data about the safety and
    efficacy of the procedure." [42]^40

          Unlike new drugs and new medical equipment, which are regulated
    by the Food and Drug Administration, no similar review of innovative
    reproductive technology procedures is required. Reproductive
    technologies also differ from other medical procedures because they
    are rarely covered by health insurance; only code 15 /code states'
    laws mandate infertility coverage. [43]^41 This means that clinics are
    in a fierce competition for wealthy patients. Some clinics report as
    "pregnancies" small hormonal shifts in a woman's body that show that
    an embryo has briefly implanted and then been reabsorbed by her body.
    Others implant as many as code 10 /code embryos or use infertility
    drugs indiscriminately to increase the number of babies the clinic
    creates, even though this increases the risk to the woman and the
    fetuses. Lack of insurance coverage also means that reproductive
    technology lacks an additional aspect of quality assurance. For other
    types of health services, health insurers, through managed care
    outcome studies and evaluation of services, have required certain
    proof of efficacy before medical services are reimbursed. [44]^42

          Additionally, medical malpractice litigation, which serves as a
    quality control mechanism in other areas of health care, does not work
    as well in this field. The normal success rates for the procedures
    (25% for in vitro, for example) are so low that it makes it difficult
    to prove that the doctor was negligent. Risks to the children may not
    be discernable for many years, which may be past the period of time a
    statute of limitations on a legal suit has run. In "wrongful life"
    cases, courts have been reluctant to impose liability upon medical
    providers and labs for children born with birth defects where the
    child would not have been born if the negligent act had been avoided;
    only three states recognize such a cause of action. [45]^43

          Consequently, experimental techniques are rapidly introduced in
    the more than code 300 /code high-tech infertility clinics in the
    United States without sufficient prior animal experimentation,
    randomized clinical trials, or the rigorous data collection that would
    occur in other types of medical experimentation. [46]^44 In vitro
    fertilization itself was applied to women years before it was applied
    to baboons, chimpanzees, or rhesus monkeys, leading some embryologists
    to observe that it seemed as if women had served as the model for the
    nonhuman primates.

The Impact of the Market

          All of biology is now akin to a child's set of building blocks.
    Yet when genes go from metaphor to material, a fundamental change
    occurs. Unlike any other major medical dilemma in the past, however,
    we do not have a sufficient body of "neutral" scientists to advise us
    on these matters. A series of legal developments in the 1980s turned
    genetic science from a public interest activity into a commercial one.
    A landmark U.S. Supreme Court case in code 1980 /code granted a patent
    on a life form--a bacteria--setting the stage for the patenting of
    human genes. [47]^45 Initially, researchers assumed that peoples'
    genes were not patentable since patent law covers "inventions" and
    prohibits patenting the "products of nature." [48]^46 But by the
    mid-1980s, the patent office was granting an increasing number of
    patents for human genes, allowing the researcher who identifies a gene
    to earn royalties on any test or therapy created with that gene.
    [49]^47 A second radical change in the 1980s was a series of federal
    laws allowing university researchers and government researchers to
    reap the profits from their taxpayer-supported research. [50]^48 This
    encouraged collaborations between researchers and biotechnology
    companies--and a growing interest in the economic value of genetic
    technologies. [51]^49

          The new ability of any molecular biologist to patent the gene he
    or she discovers and profit from it leads gene discoverers to
    encourage as much use of the gene as possible. This has led to
    premature adoption of diagnostic tests based on the genes. [52]^50 In
    the future, it is likely to lead to pressure on parents-to-be to use
    patented genes to enhance their embryos.

The Dark Side of Designing Babies

          Society does not yet have an adequate framework to develop
    ethical and policy guidelines for the technologies of prenatal
    screening, gamete donation, and germline genetic intervention. Yet
    there are reasons why we as a society should care more about a
    couple's decision to pay for a genetic enhancement for intelligence
    than we would if they spent their money on an expensive car or private
    tutors for their children.

          The major reason for concern is that harm could be caused to the
    scores of children subjected to these interventions if the predictions
    of risks from the animal research hold true for humans. Moreover,
    these are not just "individual" choices in isolation. If wealthy
    individuals genetically enhance their children to be smarter or
    taller, others of us may feel pressured to do the same, just to allow
    our kids to keep up. "Normality" today may be "disability" tomorrow.

          Selecting traits also creates a notion, like previously-rejected
    caste systems or guilds, that people can be born into a particular job
    or purpose. As an example, researchers have suggested cloning legless
    individuals on the grounds that they would be better suited for space
    travel. [53]^51 But what if the legless individual does not wish to be
    an astronaut?

          Moreover, the fads that will be inherent in choices of favored
    clones or favored genes may narrow diversity in society. At one point,
    there was a run on a sperm bank thought to have Mick Jagger's sperm. I
    can imagine (not without some horror, I might add) a gaggle of
    Brittany Spears clones.

          Certain types of people may disappear due to market choices,
    just as certain plants have. On June 28, 2000, Seminis, the world's
    largest vegetable seed corporation, declared that it planned to
    eliminate 25%, or 2,000, of its varieties as part of its "global
    restructuring and optimization plan." Seminis considers its seeds to
    be intellectual property. Under this market-driven approach, Seminis
    prefers to sell seeds that are sterile, because farmers cannot replant
    them and must purchase seeds annually. [54]^52 The corporation with
    power over the seeds can retire certain types without public knowledge
    or oversight. The same might be done in the future by companies with
    patents on genes or patents on human embryos with particular genetic

          Already, there has been a patent application in England for a
    process to genetically engineer mammals to produce pharmaceutical
    products in their milk. The application asks for the rights to patent
    genetically engineered human women as well. Brian Lucas, the British
    patent attorney for Baylor, said that although the focus of the
    current technology is cows, the desire to cover women was put in
    because "someone, somewhere may decide that humans are patentable" and
    Baylor wants to protect its intellectual property if that happens.

People as Products

          The market is good for some things, but should it govern the
    type of people we create? Lee Silver predicts genetic enhancements by
    the wealthy might ultimately cause us to diverge into two species--the
    Genrich and the Naturals, who will not be able to procreate together.

          Creating a baby is beginning to resemble buying a car, with
    consumer choices about which features and extras to request. Yet
    children don't come with the same guarantees as cars or toasters do.
    The child of an attractive model could be downright homely. And Nobel
    Prizes tend to be awarded to people in the same laboratories rather
    than in the same families. William Shockley, a Nobel laureate sperm
    donor, once said that his own children were a "regrettable regression
    to the mean." How will parents feel if they pay for "smart" sperm, and
    "E=mc2" isn't the first thing out of their child's mouth? Already, one
    couple sued a sperm bank when the babies weren't as handsome as they
    had expected. [57]^55

Gazing Into the Future

          An art student said to me, "Conservative Republicans might want
    to give children the genes for citizenship or eliminate the genes of
    homosexuality. But I am an artist. I would want to give my child a
    blue triangular head." How should society judge such desires? Should
    certain genetic manipulations be allowed and others not? Should
    parents be able to buy height-enhancing genes for their embryos? Will
    that be viewed more like cheating in sports or more like signing your
    child up for private tennis lessons? Is giving a child a gene
    protective against a deadly disease appropriate but manipulating genes
    (or other physical traits) to create a blue triangular head not? What
    about cases that fall in the middle--genes to prevent baldness or
    assure taller stature? How will the long-term risks of inheritable
    changes be adequately assessed? And should we really exercise dominion
    over subsequent generations, changing their features at will?

          There is reason to be concerned that the individual
    choice/social justice model that society employs for parental
    decisions is not adequate for the decision to influence the genetic
    traits of our children. In this realm, individual choices have more
    impact than they do in other realms. It makes no difference if my
    neighbor uses in vitro fertilization, and I created my child the
    old-fashioned way. But if my neighbor decides to enhance her child
    genetically to be smarter or more athletic (and it actually works), my
    child will seem diminished as a result.

          The gaps between the genetic haves and have nots will widen
    since only the very rich will be able to afford the cost of genetic
    enhancement for their children. In one study, it cost $ code 300,000
    /code to genetically enhance a single cow. [58]^56 In humans, the cost
    may be even greater. Expensive in vitro fertilization will need to be
    used, and the gene insertion process and implantation processes are
    inefficient and will require repeated attempts before a particular
    couple will succeed in producing a live child with the enhanced
    genetic trait.

          Philosopher Dan Brock points out how one of our important social
    values is equality of opportunity. [59]^57 This generally means that
    society is committed to removing arbitrary grounds for the selection
    of people for jobs and college admission, as well as the removal of
    social and environmental barriers to success. [60]^58 But if parents
    can purchase the traits of their children, equality of opportunity
    might have to be interpreted as equality of characteristic. This would
    imply that society would have to underwrite genetic enhancement for
    all children.

          But there is no way that will happen. The price tag is just too
    high. In the U.S. many people lack access to basic health care, let
    alone enhancements. The United States still has an infant and maternal
    mortality rate that is worse than that of countries such as Korea and
    the Czech Republic. [61]^59 In fact, the United States ranks 33rd in
    the world in infant mortality, tied with Cuba, with code 7 /code
    children out of code 1000 /code dying in the first year of life.

          Even if the cost of genetic enhancement were to drop
    substantially--to, say, $10,000--and only code 50 /code million
    Americans attempted to use it, the overall cost would be $ code 500
    /code billion. [63]^61 Law professor Maxwell Mehlman points out that
    since society will be unwilling to pay that price, "genetic
    enhancement will not be available to all, but only to the few who can
    afford to purchase it out of their personal finances." [64]^62

          Brock summarizes the situation: "The genetic knowledge and
    potential therapeutic capacities that the Human Genome Project will
    likely bring us will further strain our commitment to equality of
    opportunity and will force new decisions about the value of equality
    of opportunity relative to other social and political values and
    institutions." [65]^63

Making Policy for Making Babies

          The ethical and policy tasks ahead of us are enormous and
    daunting. This is the generation that will decide whether to embrace
    or reject these technologies. Will we watch sports played by
    genetically enhanced athletes? Live among cloned human beings? Mandate
    prenatal screening as admission standards for birth?

          The genetic choices are unlike other parental choices because
    they impact us all. Consequently, no individual couple, clinic,
    company, or nation should be able to decide to proceed without a full,
    informed, society-wide debate on these issues. Geneticists have given
    us the map to the genome, but it will be up to people like you and me
    to determine where that map will lead.

    [66]^1 Constance Holden, "Tracking Genius Sperm," Science code 291
    /code ( code 2001 /code ): 1893. ] [67]^2 See Lori B. Andrews, The
    Clone Age: Adventures in the New World of Reproductive Technology (New
    York: Holt, 1999). ] [68]^3 Zelman, Superintendent of Public
    Instruction of Ohio v. Simmons-Harris, code 2002 /code U.S. LEXIS
    4885, code 70 /code U.S.L.W. code 4683 /code (2002). The Court's
    opinion stated that the program "provides benefits directly to a wide
    spectrum of individuals, defined only by financial need and residence
    in a particular school district. It permits such individuals to
    exercise genuine choice among options public and private, secular and
    religious. The program is therefore a program of true private choice."
    ] [69]^4 In 2002, the Italian infertility specialist Dr. Severino
    Antinori told the press that several of his female patients were
    pregnant with clones. See John Crewdson, "Gynecologist Claims
    Impending Births of code 5 /code Cloned Human Babies," Chicago Tribune
    ( code 23 /code June 2002): 1. ] [70]^5 "Dynacare, Intema Join Forces
    to Offer Advanced Prenatal Testing," PR Newswire ( code 16 /code April
    code 2001 /code ). ] [71]^6 See March of Dimes Factsheet,
    [72]<http://www.modimes.org/HealthLibrary/334_580.htm> (last visited
    code 10 /code July 2002). ] [73]^7 In code 1993 /code it was estimated
    that 50% of pregnancies in the U.S. are screened for evidence of
    neural tube defect in the fetus. See F. J. Meaney, S. M. Riggle, G. C.
    Cunningham, "Providers and Consumers of Prenatal Genetic Testing
    Services: What Do The National Data Tell Us?" Fetal Diagnostic Therapy
    code 8 /code (1993): 18-27. ] [74]^8 The March of Dimes reports that
    since code 1983 /code over code 200,000 /code women have undergone
    chorionic villi sampling. See March of Dimes Factsheet,
    [75]<http://www.modimes.org/HealthLibrary/334_578.htm> (last visited
    code 10 /code July 2002). They also report that millions of women have
    had prenatal diagnosis by amniocentesis. See March of Dimes Factsheet,
    [76]<http://www.modimes.org /HealthLibrary/334_577.htm> (last visited
    code 10 /code July 2002). ] [77]^9 Francis A. Flinter,
    "Preimplantation Genetic Diagnosis: Needs to be Tightly Regulated,"
    British Medical Journal code 322 /code ( code 2001 /code ): 1008. ]
    [78]^10 Paul Ramsey, "Screening: An Ethicist's View," Ethical Issues
    in Human Genetics: Genetic Counseling and the Use of Genetic
    Knowledge, ed. B. Hilton, D. Callahan, M. Harris, P. Condliffe, and B.
    Berkley (Fogarty International Proceedings No. 13, 1973) 159. ]
    [79]^11 Tay-Sachs disease is a fatal neurodegenerative disorder caused
    by a genetic mutation. It is very common among Ashkenazi Jews. See,
    for example, E. C. Landel, I. H. Ellis, A. H. Fensom, P. M. Green, and
    M. Bobrow, "Frequency of Tay-Sachs Disease Splice and Insertion
    Mutations in the UK Ashkenazi Jewish Population," Journal of Medical
    Genetics code 28 /code (1991): 177-80. ] [80]^12 Yury Verlinsky,
    Svetlana Rechitsky, Oleg Verlinsky, Christina Masciangelo, Kevin
    Lederer, Anver Kuliev, "Preimplantation Diagnosis for Early-Onset
    Alzheimer Disease Caused by V717L Mutation," JAMA code 287 /code (
    code 27 /code February 2002): 1018-21. ] [81]^13 Marsha Saxton,
    "Disability Rights and Selective Abortion," Abortion Wars: A Half
    Century of Struggle, 1950-2000, ed. Rickie Solinger (Berkeley:
    University of California Press, 1998) 374-93. ] [82]^14 Office of
    Technology Assessment, U.S. Congress, Mapping Our Genes (1988) 84. ]
    [83]^15 Eric Juengst, "Prenatal Diagnosis and the Ethics of
    Uncertainty," Health Care Ethics: Cultural Issues for the 21^st
    Century, ed. J. Monagle and D. Thomasma (Rockville: Aspen, 1997) 19,
    citing National Institute of Child Health and Human Development,
    Antenatal Diagnosis: Report of a Consensus Development Conference code
    1-192 /code NIH Publication code 79-1973 /code (Bethesda: NIH, 1979).
    ] [84]^16 Saxton 374-93. ] [85]^17 Laura Hershey, "Choosing
    Disability," Ms. (July/August 1994): 29. ] [86]^18 Owen D. Jones, "Sex
    Selection: Regulating Technology Enabling the Predetermination of a
    Child's Gender," Harvard Journal of Law and Technology code 6 /code
    (Fall 1992): 1, 12. ] [87]^19 Jones 1, 12. ] [88]^20 Susan Greenholgh,
    "Engendering Reproductive Policy and Practice in Peasant China: For a
    Feminist Demography of Reproduction," Signs code 20 /code (1995): 601,
    627. ] [89]^21 Dorothy Wertz and John C. Fletcher, "Fatal Knowledge?
    Prenatal Diagnosis and Sex Selection," Hastings Center Report code 19
    /code (May 1989): 21. ] [90]^22 Jeffrey Obser, "Drawing the Line,"
    Newsday ( code 16 /code June 1998): CO8. ] [91]^23 Roberta
    Steinbacher, Faith D. Gilroy, and Doreen Swetkis, "Firstborn
    Preference and Attitudes Toward Using Sex Selection Technology,"
    Journal of Genetic Psychology, code 163.2 /code (June 2002): 235. ]
    [92]^24 Katharine Lowry, "The `Genius' Babies: `Nobel Prize' Sperm
    Bank's First Generation of Designer Babies," Toronto Star ( code 12
    /code December 1987): J1. ] [93]^25 Andrews 136. ] [94]^26 Nick
    Nuttall and Emma Wilkins, "Watchdog to Report on Designer Baby," The
    Times (London) ( code 1 /code January 1994): 1. ] [95]^27 Andrews 137.
    ] [96]^28 Andrews 137-8. ] [97]^29 California, Iowa, Louisiana,
    Michigan, Rhode Island, and Virginia. ] [98]^30 Joel Feinberg, "The
    Child's Right to an Open Future," Whose Child? Children's Rights,
    Parental Authority, and State Power, ed. William Aiken and Hugh
    LaFollete (Totoya: Rowman and Littlefield, 1980) as cited in "Cloning
    Human Beings," Volume I: Report and Recommendations of the National
    Bioethics Advisory Board (June 1997): 63. ] [99]^31 Anthony C. F.
    Perry, Teruhiko Wakayama, Hidefumi Kishikawa, Tsuyoshi Kasai, Masaru
    Okabe, Yutaka Toyoda, Ryuzo Yanagimachi, "Mammalian Transgenesis by
    Intracytoplasmic Sperm Injection," Science code 284 /code ( code 14
    /code May 1999): 1180-3. See also "Fertility Therapy May Aid Gene
    Transfer," Science code 284 /code ( code 14 /code May 1999): 1097-8;
    A. W. S. Chang, K. Y. Chong. C. Martinovich, C. Simerly, G. Schatten,
    "Transgenic Monkeys Produced by Retroviral Gene Transfer into Mature
    Oocytes," Science code 291 /code ( code 12 /code January code 2001
    /code ): 309-12; Carlos Lois, Elizabeth J. Hong, Shirley Pease, Eric
    J. Brown, David Baltimore, "Germline Transmission and Tissue-Specific
    Expression of Transgenes Delivered by Lentiviral Vectors," Science
    code 295 /code ( code 1 /code February 2002): 868-71; A. J. Griffith,
    W. Ji, M. E. Prince, R. A. Altschuler, and M. H. Meisler, "Optic,
    Olfactory, and Vestibular Dysmorphogenesis in the Homozygous Mouse
    Insertional Mutant Tg9257," Journal of Craniofacial Genetic
    Developmental Biology code 19 /code (1999): 157-63; K.L. Rudolph, et
    al., "Longevity, Stress Response, and Cancer in Aging
    Telomerase-deficient Mice," Cell code 96 /code (1999): 701-12. ]
    [100]^32 Joe Tsien, "Building a Brainier Mouse," Scientific American
    (April 2000). ] [101]^33 Stuart Newman, "Don't Try to Engineer Human
    Embryos," St. Louis Post-Dispatch ( code 25 /code July 2000). ]
    [102]^34 Jon. W. Gordon, "Genetic Enhancement in Humans," Science code
    283 /code (1994): 2023-4. ] [103]^35 Gordon 2023-4. ] [104]^36 Gordon
    2023-4. ] [105]^37 Ya-Ping Tang, Eiji Shimizu, Gilles R. Dube, Claire
    Rampon, Geoffrey A. Kerchner, Min Zhuo, Guosong Liu, and Joe Z. Tsien,
    "Genetic Enhancement of Learning and Memory in Mice," Nature code 401
    /code (1999): 63-9. ] [106]^38 Feng Wei, Guo-Du Wang, Geoffrey A.
    Kerchner, Susan J. Kim, Hai-Ming Xu, Zhou-Feng Chen, and Min Zhuo,
    "Genetic Enhancement of Inflammatory Pain by Forebrain NR2B
    Overexpression," Nature Neuroscience code 4 /code ( code 2001 /code ):
    164-9. See, also, Rick Weiss, "Study: Rodents' Higher IQ May Come At
    Painful Price," The Washington Post ( code 29 /code January code 2001
    /code ): A2. ] [107]^39 code 45 /code C.F.R. § 46.111. ] [108]^40
    Peter J. Paganussi, "Fertility Frontier," letter, The Washington Post
    ( code 23 /code February 1998): A18. ] [109]^41 These states are
    Arkansas, California, Connecticut, Hawaii, Illinois, Louisiana,
    Maryland, Massachusetts, Montana, New Jersey, New York, Ohio, Rhode
    Island, Texas, and West Virginia. See
    [110]<http://www.resolve.org/advocacy/facts/stateinsurance.shtml>. ]
    [111]^42 Peter Kendall and William Neikirk, "Cloning Breakthrough: A
    Large Step on Much Longer Road," Chicago Tribune ( code 25 /code
    February 1997): 1. ] [112]^43 See, for example, Curlender v.
    Bioscience Laboratories, code 165 /code Cal. Rptr. code 477 /code
    (Cal. App. Ct. 1980). ] [113]^44 E. R. te Veld, A. L. van Baar, and R.
    J. van Kooij, "Concerns about Assisted Reproduction," Lancet code 351
    /code (1998): 1524-5. ] [114]^45 Diamond v. Chakrabarty, code 447
    /code U.S. code 303 /code (1980). ] [115]^46 Funk Bros. Seed Co. v.
    Kalo Inoculant Co., code 333 /code U.S. code 127 /code (1948). ]
    [116]^47 See, for example, Rebecca S. Eisenberg, "Patenting the Human
    Genome," Emory Law Journal code 39 /code (1990): 721. ] [117]^48 code
    15 /code U.S.C.S. § code 3701 /code et seq.; code 35 /code U.S.C. §
    code 200 /code et seq. See also Sheldon Krimsky, Biotechnics and
    Society (New York: Praeger, 1991). ] [118]^49 In the context of
    advances in biotechnology, the 1980s' legislation led to important
    changes in the goals and practices of science and medicine. Leon
    Rosenberg, when he was Dean of the Yale University School of Medicine,
    described the influence of the biotechnology revolution on scientific
    research: "It has moved us, literally or figuratively, from the class
    room to the board room and from the New England Journal to the Wall
    Street Journal." See Leon Rosenberg, "Using Patient Materials for
    Production Development: A Dean's Perspective," Clinical Research code
    33 /code (October 1985): 412-54. This means that at the same time that
    genetic technologies are being increasingly marketed, there are fewer
    and fewer neutral geneticists to serve as advisors to society on the
    merits and impacts of these technologies. ] [119]^50 See Lori B.
    Andrews, Future Perfect: Confronting Decisions About Genetics (New
    York: Columbia University Press, code 2001 /code ) 168. ] [120]^51 J.
    B. S. Haldane, "Biological Possibilities for the Human Species in the
    Next Thousand Years," Man and His Future, ed. G. Wolstenholme, as
    cited in F .C. Pizzulli, "Asexual Reproduction and Genetic
    Engineering: A Constitutional Assessment of the Technology of
    Cloning," Southern California Law Review code 47 /code (1974): 520,
    n.235. ] [121]^52 "Genotypes: Earmarked for Extinction?"
    [122]<http://www.gene.ch/gentech/2000/Jul /msg00066.html>. The use of
    hybrid seeds to prevent saving seeds for replanting by farmers is
    similar to intellectual property protection efforts aimed at requiring
    farmers to repurchase seeds each year. ] [123]^53 Steve Connor,
    "Patent Plan for Breasts Set to Stir Passions," The Independent
    (London) ( code 19 /code February 1992): 3. ] [124]^54 Lee M. Silver,
    Remaking Eden: Cloning and Beyond in a Brave New World (New York:
    Avon, 1997) 72. ] [125]^55 Harnicher v. University of Utah Medical
    Center, code 962 /code P.2d code 67 /code (Utah 1998). ] [126]^56
    Michael Hagman, "Fertility Therapy May Aid Gene Transfer," Science
    code 284 /code (1999): 1097. ] [127]^57 Dan W. Brock, "The Human
    Genome Project and Human Identify," Houston Law Review code 29 /code
    (1992): 7. ] [128]^58 Brock 10. ] [129]^59 UNICEF Statistics,
    [130]<http://www.childinfo.org/cmr/revis/db1.htm> (last visited code 9
    /code July 2002). ] [131]^60
    [132]<http://www.childinfo.org/cmr/revis/db1.htm>. ] [133]^61 Maxwell
    J. Mehlman, "How Will We Regulate Genetic Enhancement?" Wake Forest
    Law Review code 34 /code (1999): 686. ] [134]^62 Mehlman 687. ]
    [135]^63 Brock 12. ]


   72. http://www.modimes.org/HealthLibrary/334_580.htm
   75. http://www.modimes.org/HealthLibrary/334_578.htm
   76. http://www.modimes.org/HealthLibrary/334_577.htm
  110. http://www.resolve.org/advocacy/facts/stateinsurance.shtml
  122. http://www.gene.ch/gentech/2000/Jul/msg00066.html
  130. http://www.childinfo.org/cmr/revis/db1.htm
  132. http://www.childinfo.org/cmr/revis/db1.htm

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