Equal Liberty: Assisted Reproductive Technology and Reproductive Equality
Radhika Rao, 76 Geo. Wash. L. Rev. 6 (2008)
Some scholars suggest that the U.S. Constitution confers a right to reproduce with the assistance of a wide variety of technologies, including in vitro fertilization (“IVF”), preimplantation genetic diagnosis of embryos (“PGD”), and even somatic cell nuclear transfer (“SCNT”), otherwise known as cloning. Under this expansive interpretation of reproductive liberty, almost every technology necessary to procreate would receive constitutional protection. Others contend that there is no such constitutional right at all, leaving the government completely free to regulate the field of fertility treatments.
This Essay offers a novel approach that rejects both extremes. I argue that there is no general right to use ARTs as a matter of reproductive autonomy, but there may be a limited right to use ARTs as a matter of reproductive equality. Accordingly, the government could prohibit use of a particular reproductive technology across the board for everyone; however, once the state permits use in some contexts, it should not be able to forbid use of the same technology in other contexts. Hence, all persons must possess an equal right, even if no one retains an absolute right, to use ARTs.
