Negating the Genetic Tie: Does the Law Encourage Unnecessary Risks?

29 Pages Posted: 11 Mar 2011

See all articles by June Carbone

June Carbone

University of Minnesota - Twin Cities - School of Law

Date Written: March, 11 2011


Much of the debate about assisted reproduction concerns genetic selection. All things considered, parents prefer superior children. Yet, while we worry about parents who want a “perfect” child, we do not consider the lengths parents go to ensure a child of “their own,” who is more like them and less like others. This article asks whether we should consider the risks of attempting to engineer a child with “right” genetic connections.

The regulation of assisted reproduction should be a dynamic process, where the answer to appropriate intervention depends on the regulatory process. Many people would not approve of surrogacy to create a child who is not genetically related to either intended mother or gestational carrier. Yet, the few states that address surrogacy are relatively restrictive. That the very idea of oversight of assisted reproduction is contested means it is difficult to predict regulatory oversight — or to minimize the risks of a technique without derailing new technologies. To date, assisted reproduction has come through a decentralized system in which professional norms offer a limited bulwark against unacceptable practices, but often after, rather than before, the risks in new procedures become apparent.

This article reviews existing processes, examine new innovations, and argues that the fundamental choice is between discouraging particular technologies altogether or allowing them to develop with minimal oversight. Certain procedures, such as cloning, may be so intrinsically dangerous that bans may be justified. Once the safety of other techniques has been established, however, the only approach that keeps the techniques available may be professional norms designed to guide a decentralized, market driven process. The result will be a system that, while it takes great pains to police safety, is unlikely to be able to deal with motive in satisfactory ways.

Suggested Citation

Carbone, June, Negating the Genetic Tie: Does the Law Encourage Unnecessary Risks? (March, 11 2011). University of Missouri-Kansas City Law Review, Vol. 79, 2010, Available at SSRN:

June Carbone (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229-19th Avenue South
Minneapolis, MN 55455
United States

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