A Century of Eugenics in America: From the Indiana Experiment to the Human Genome Era

10. Modern Eugenics and the Law

219 ten Modern Eugenics and the Law Ma xwell J. Mehlman One hundred years after the enactment of chapter 215 of the Indiana Acts of 1907, the world’s first eugenic sterilization law, eugenics might be expected to be a thing of the past.1 Yet practices that might be considered eugenic persist, and there is good reason to expect them to flourish in the near future. This essay begins by discussing what is meant by “eugenic.” It then describes modern practices that might be considered eugenic. It concludes by foreshadowing future developments in technology and public policy that might achieve eugenic objectives. W h at Counts as a Eugenic Pr actice? Francis Galton, who originated the term eugenics in 1883, defined it as “the science of improving stock, which is by no means confined to questions of judicious mating, but which, especially in the case of man, takes cognisance of all influences that tend in however remote a degree to give to the more suitable races or strains of blood a better chance of prevailing speedily over the less suitable than they otherwise would have had.”2 In 1904, he restated his understanding of eugenics as “the science which deals with all influences that improve the inborn qualities of a race; also with those that develop them to the utmost advantage.”3 There is widespread agreement now among geneticists that there is no genetic basis for the concept of “race.” Members of the same “race” can differ markedly, and people of different races can share more genes in common than people of the same race.4 Hence we might be tempted to think that, since eugenics is an effort to improve “races” or “strains of blood,” there can be no true modern eugenic practices. 220 · M a x w ell J. Mehlm a n Moreover,oneofthehallmarksoftheeugenicsmovementintheearly twentieth century was its belief that many social ills could be attributed to bad genes. As Elof Carlson noted in the first chapter of this volume, the view that inherited physiological imperfections led to social degeneracy was a prerequisite to the enactment of initial eugenic sterilization laws. Toward the end of the twentieth century, however, our understanding of genetic science has become more sophisticated, and there may be less inclination to believe in genetic determinism. But the conception of eugenics reflected in these positions is too narrow . It does not matter whether genes or social conditions make a person a thief or a prostitute rather than an upstanding citizen. The point is that thieves and prostitutes are thought to be likely to have children who become thieves and prostitutes, while the children of upstanding citizens are more likely to become upstanding citizens. To improve society, the objective then is to limit the former’s ability to reproduce relative to the latter.AsDorothyRobertsstatesinconnectionwitheffortstocriminalize drug-addicted women who bear children, “These reproductive punishments are not strictly eugenic because they are not technically based on the belief that crime is inherited; that is, their goal is not to prevent the passing down of crime-marked genes. They are based, however, on the same premise underlying the eugenic sterilization laws—that certain groups in our society do not deserve to procreate.”5 Furthermore, efforts at genetic improvement need not be aimed at “races” in order to raise many of the same concerns as classic eugenics. As Roberts implies, the point is whether one believes that only certain types of persons should procreate. Understoodinthisway,manymodernpracticescanbeconsideredeugenic ,ortouseSoniaSuter’sterm,“neoeugenic.”Assheexplains,“although neoeugenicsisnotidenticaltotheeugenicsofyesteryear,manyofthesame impulses and drives exist today; most notably, the desire to improve the human species and our children through reproductive choices.”6 Eugenicpracticescanbeeither“positive”or“negative.”DanielKevles states that positive eugenics aims “to foster greater representation in a society of people whom eugenicists [consider] socially valuable.” Negative eugenics, on the other hand, seeks “to encourage the socially unworthy to breed less or, better yet, not at all.” 7 As Carlson observes, it aims at “reproductive isolation of those considered unfit to reproduce.” Moder n Eugenics a nd the Law · 221 Commentators often distinguish between “state-sponsored” and “private” reproductive decisions, suggesting that only the former can be considered to be eugenics. Duster states, for example: “It is imperative to distinguish between state-sanctioned eugenics programs on the one hand, and private, individualized, personal decisions that are socially patternedontheother .”8 Buttheexerciseofstatepowerandthedividingline between state-sponsored and private decision making are less clear-cut thanDusterimplies.Atoneextreme,thestatecanprohibitaeugenicpractice . In...