Reproductive Selection Bias

60 Pages Posted: 12 Aug 2016

See all articles by Lauren Roth

Lauren Roth

affiliation not provided to SSRN

Date Written: August 10, 2016


Decades after the advent of assisted reproductive technology (ART) that allows prospective parents to deselect embryos with grave genetic illnesses – a procedure called preimplantation genetic diagnosis (PGD) – it remains a tool largely of upper class whites. In the wake of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, I argue that the time has come to focus on access in this area of reproductive rights. The next logical step is to rebut the presumption that reproductive liberty is only a negative right that prevents government interference with decisions about whether and how to procreate or not to procreate. If liberty is tied to equality through access to medical procedures, scholars must finally answer the question of what equality requires in a system that permits the use of ARTs and frame reproductive liberty as a positive right.

This Article shows how the current system of assisted reproduction already distinguishes between the “in” group and the “out” group. I use PGD here as a lens to focus on ARTs more generally. Section I explores the literature’s focus on the use and growth of PGD for genetic selection unrelated to the prevention of genetic disease (nontherapeutic PGD), including the use of PGD for sex and other physical trait selection. The scholarly overemphasis on the tricky moral quandaries associated with the nontherapeutic use of PGD where liberty concerns are at the forefront impedes any proposed solutions to unequal access to using PGD to prevent inherited illnesses. Section II explores how existing jurisprudence ignores the role of income inequality and broader social concerns in deciding disputes related to PGD. Finally, I discuss in Section III how the combined effect of the Affordable Care Act (ACA) antidiscrimination and essential health benefit mandates is to focus on ensuring equality of access to healthcare, particularly for underserved populations. Reproductive technology should be included among the essential health benefits the ACA requires, and the illustration of therapeutic PGD demonstrates why. The new eugenics privileges wealthy whites above other races and classes, and exacerbates race and class distinctions.

Keywords: Health law, bioethics, reproductive rights

JEL Classification: Health law, bioethics, reproductive rights

Suggested Citation

Roth, Lauren, Reproductive Selection Bias (August 10, 2016). St. John's Legal Studies Research Paper, Available at SSRN: or

Lauren Roth (Contact Author)

affiliation not provided to SSRN

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