States’ Regulation of Assisted Reproductive Technologies: What Does the U.S. Constitution Allow?

Abstract

This paper addresses the extent to which the rights of privacy and reproductive liberty protected by the United States Constitution prevent states from regulating assisted reproductive technologies (ARTs). It concludes that under the best interpretation of the Supreme Court’s existing case law, states have ample room to regulate individuals’ decisions to procreate, including decisions to use ARTs. States, pursuant to their police powers, may regulate ARTs in order to protect the health, safety, and welfare of their citizens. However, courts will strictly scrutinize any regulation of procreation that distinguishes socially disfavored groups for different treatment. Similarly, even where a regulation would apply equally to all citizens, it must serve a legitimate governmental interest, rather than merely reflect “outmoded taboos.”

A companion essay, Throwing the Baby Out with the Amniotic Fluid: Not All Reproductive Choices are Morally or Legally Equivalent, is available at http://ssrn.com/abstract=2127286. Two law review articles in progress, Rights To and Not To Procreate and Towards a Jurisprudence of Procreation, develop these ideas.

Keywords: ARTs, assisted reproductive technologies, constitutional law, procreation, reproduction