Is There a Constitutional Right to Preconception Sex Selection?

John Robertson concludes his discussion of the social consequences of preconception gender selection (PGS) by observing that "the best societal approach would, of course, be to proceed slowly, first requiring extensive studies of safety and efficacy, and then at first only permitting PGS for increasing the gender variety of offspring in particular families." Yet, despite its appeal, Robertson suggests, such an approach may be unavailable because "public policies that bar all nonmedical uses of PGS or restrict it to choosing gender variety in offspring could be found unconstitutional or illegal." This assertion warrants further scrutiny.

The ability to predict how courts will rule on constitutional challenges to governmental regulation of reproductive technologies is limited by the absence of virtually any Supreme Court precedent in the area. Although most commentators agree that the Court would recognize a right to engage in coital reproduction, at least within marriage, it has yet to confront a case in which that proposition has directly been put to the test. Whether a right to procreate would extend to noncoital reproduction is less certain, although a strong argument can be made that the use of reproductive technologies by infertile couples who otherwise could not reproduce is entitled to the same degree of protection as reproduction through sexual intercourse (New York State Task Force on Life and the Law 1998).

Governmental limitations on the use of PGS, however, would not prevent anyone from reproducing, nor would they penalize individuals for the exercise of their procreative rights. The claim that such limitations would implicate the right to procreate follows from the argument that because the ability to select offspring gender may be "essential to a couple's decision to reproduce," limitations on access to PGS may lead some people who might otherwise choose to procreate to forego reproduction entirely.

Such an expansive interpretation of procreative liberty would have significant implications. It would severely limit government's ability to regulate not only PGS, but also techniques for selecting trivial offspring characteristics like hair or eye color. More alarmingly, it might protect efforts to both "enhance" and "diminish" a child's capacities through the prenatal manipulation of genes (Robertson 1996, 135-146). Under Robertson's framework, governmental regulation of all these technologies would be subject to heightened scrutiny whenever at least one person claimed that, without the technique, she would choose not to reproduce at all.

That the harms associated with these techniques may be "speculative or uncertain" does not mean society has no reason to be concerned. As Carson Strong points out, efforts to control offspring characteristics threaten to exacerbate social and economic inequalities, promote eugenic tendencies, and fundamentally alter the way that children are viewed (Strong 2001). Trait selection poses the greatest risks when applied to characteristics that have historically been the basis for damaging stereotypes and social subordination, such as gender, skin color, and sexual orientation (assuming it becomes possible to influence this type of multifactorial trait through preconception intervention). Moreover, consider the plight of a child born of the "wrong" gender in a case where PGS fails. Robertson suggests that programs could "require that any couple or individual seeking PGS receive counseling about the risks of failure and commit to rear a child even if its gender is other than that sought through PGS." But for parents so eager to have a child of a particular gender that they would not reproduce if PGS were unavailable (which, after all, is the premise of Robertson's constitutional claim), can we really take comfort in a promise to treat the child's gender as irrelevant if things do not turn out as planned?

Given the societal stakes, as well as the relatively clean constitutional slate, we should not assume that government's authority to regulate trait selection is as limited as Robertson suggests. To the extent the Supreme Court has recognized a principle of procreative liberty, it has done so in response to limits on the physical ability of individuals to control whether or not they reproduce; for example, compulsory sterilization (Skinner v. Oklahoma, 316 U.S. 535 [1942]), laws prohibiting contraception (Griswold...