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Reproductive Autonomy and Evolutionary Biology: A Regulatory Framework for Trait-Selection Technologies

Published online by Cambridge University Press:  24 February 2021

Owen D. Jones
Owen D. Jones*
Affiliation:
Covington & Burling, Washington D.C.; Amherst College; Yale Law School
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Abstract

The Constitution protects, in some measure, each person's autonomy in making basic decisions about family, parenthood, and procreation. This Article examines the extent to which courts should protect from government intrusions a parent's access to technologies that influence specific characteristics of offspring. Beginning with Supreme Court opinions that articulate constitutional and social values regarding reproductive autonomy, the Article explores how important new insights from evolutionary biology may supplement an understanding of Human procreation. Specifically, the Article explains how trait selection can constitute an important part of larger “reproductive strategies” that powerfully affect an individual's “inclusive fitness” (itself a measure of reproductive success). It concludes that access to trait-selection technologies should receive the same federal protection from government intrusions as that afforded access to abortion. It proposes the first limit to that protection, however, when a parent seeks to select for a trait, or to use a technique, that would be clearly and significantly damaging to the future child. The Article subsequently divides the use of trait-selection technologies (TSTs) into eight contexts and proposes a preliminary framework by which a regulatory system could legitimately distinguish among them.

Type
Articles
Information
American Journal of Law & Medicine , Volume 19 , Issue 3 , 1993 , pp. 187 - 231
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1993

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References

1 112 S. Ct. 2791 (1992).

2 Id. at 2807-10.

3 An early articulation of the principle that procreative liberty should include a right to attempt, among other things, the selection of certain offspring characteristics appeared in John, A. Robertson, Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth, 69 Va. L. Rev. 405 (1983)Google Scholar, an article which explored a wide and important variety of issues attendant to a right to reproduce.

4 Gene therapy involves inserting genetic material into cells to alter their function or, for example, to correct a genetic defect. See generally C. Thomas Caskey, DNA-Based Medicine: Prevention and Therapy, in The Code of Codes: Scientific and Social Issues in the Human Genome Project 112 (Daniel J. Kevles & Leroy Hood eds., 1992).

5 The direct implications of the Human Genome Initiative [HGI], although outside the scope of this Article, are summarized in Dennis, S. Karjala, A Legal Research Agenda for The Human Genome Initiative, 32 Jurimetrics J. L., Sci. & Tech. 121 (1992)Google Scholar; see also Symposium, The Human Genome Initiative and the Impact of Genetic Testing and Screening Technologies, 17 am. J.L. & Med. 1 (1991). HGI is a multinational, fifteen-year effort to map and sequence all of the genetic material in Human chromosomes — consisting of approximately three billion “base pairs” or subunits of DNA. For background genetic information, see sources cited infra note 62.

6 Also known as sex or gender predetermination or preselection.

7 See discussion infra part II.C.

8 See generally John H. Beckstrom, Evolutionary Jurisprudence: Prospects and Limitations on the use of Modern Darwinism Throughout the Legal Process 28-47 (1989) [hereinafter Beckstrom, Evolutionary Jurisprudence]; John H. Beckstrom, Darwinism Applied: Evolutionary Paths to SOCIAL GOALS 1-21 (1993). For an overview of philosophical thought on the naturalistic fallacy, see Michael Ruse, Taking Darwin Seriously: A Naturalistic Approach to Philosophy 86-93 (1986).

9 As Beckstrom put it, if we can argue that something did, does, or does not exist, we have not thereby established a desirable future standard or goal. BEckstrom, Evolutionary Jurisprudence, supra note 8, at 34. Science may, for example, describe what is so, and offer hypotheses as to why a thing is so. But it cannot alone guide us as to whether or not such a thing should remain as it is.

10 Value systems themselves often are modified, of course, in response to new challenges.

11 112 S. Ct. at 2805.

12 Justice Harlan put this most aptly when he stated that the “full scope of liberty guaranteed by the Due Process Clause” represents “a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints … and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting).

13 Michael J . v. Gerald D., 491 U.S. 110, 121 (1989) (Scalia.J.).

14 Loving v. Virginia, 388 U.S. 1, 12 (1967).

15 Griswold v. Connecticut, 381 U.S. 479 (1965).

16 Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Meyer v. Nebraska, 262 U.S. 390 (1923).

17 Planned Parenthood v. Casey, 112 S. Ct. at 2791, 2806 (1992) (“personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.”, citing Eisenstadt, Loving, Griswold, and Meyer, as well as Moore v. East Cleveland, 431 U.S. 494 (1977), Skinner v. Oklahoma, 316 U.S. 535 (1942), and Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925)).

18 Casey, 112 S. Ct. at 2807.

19 Medical Technology and the Law, 103 Harv. L. Rev. 1519, 1529 (1990).

20 See id. at 1531 n.36.

21 Cf. In re Baby M, 537 A.2d 1227, 1253 (N.J. 1988) (“The right to procreate very simply is the right to have natural children, whether through sexual intercourse or artificial insemination. It is no more than that.“).

22 There are several tiers of scrutiny. Three are familiar, and one is as yet imprecisely defined. “Strict scrutiny,” for fundamental constitutional rights like freedom of association and religion, asks whether a law is “necessary” to protect a “compelling” state interest. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 627, 634-38 (1969); Korematsu v. United States, 323 U.S. 214, 216 (1944). “Intermediate scrutiny,” invoked to protect “quasi-suspect” classes of people like those singled out on the basis of gender or illegitimacy, examines whether a law is “substantially related” to an “important” government interest. See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723-26 (1982); Craig v. Boren, 429 U.S. 190, 197-99 (1976); . “Minimum scrutiny,” for nearly everything else, simply asks whether a law is “rationally related” to a “legitimate” state interest. See, e.g.. New Orleans v. Dukes, 427 U.S. 297, 303-06 (1976); U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 533 (1973); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,17 (1973). Casey itself invoked the “undue burden” tier of scrutiny, which renders unconstitutional any legislation that imposes an “undue burden” upon someone seeking to vindicate certain special rights. 112 S. Ct. at 2820. (The standard was previously and rather differently articulated in Justice O'Connor's dissent in City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 463 (1983).) Undue burden now occupies a position in the hierarchy of rigorous analysis that apparently leaves it somewhat less demanding than strict scrutiny, but somewhat more demanding than intermediate scrutiny. See Planned Parenthood v. Casey, 947 F.2d 682, 689-90 (3d Cir. 1991), aff'd in part, rev'd in part, 112 S. Ct. 2791 (1992).

Because the contours of the undue burden standard remain to be fully illuminated, and the basis on which it was applied is as yet unclear, this Article adopts Justice Rehnquist's reference to both “strict scrutiny” and “undue burden” analysis as “heightened scrutiny.” See Casey, 112 S. Ct. at 2866-67 (Rehnquist, C.J., dissenting). For further discussion of the various levels of scrutiny, see Gerald, Gunther, Foreword: In Search of Evolving Doctrine of a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1 (1972)Google Scholar.

23 Charles Darwin is considered the primary precursor of the evolutionary theories of natural and sexual selection. See generally Charles Darwin, on the Origin of Species by Means of Natural Selection (1859); Charles Darwin, the Descent of Man and Selection in Relation to Sex (John Murray ed., 1871).

24 For a more in-depth analysis of sex selection, see Owen, D. Jones, Sex Selection: Regulating Technology Enabling the Predetermination of a Child's Gender, 6 Harv. J.L. & Tech. 1 (1992)Google Scholar.

25 See Peter Steinfels, Papal Birth-Control Letter Retains Its Grip, N.Y. Times, Aug. 1, 1993, at al.

26 See generally David M. Rorvik & Landrum B. Shettles, Choose your Baby's Sex: the one Sex Selection Method that Works (1977) [hereinafter Choose your Baby's Sex]; David M. Rorvik & Landrum B. Shettles, your Baby's Sex: now you can Choose (1970) [hereinafter your Baby's sex] (both, in part, surveying historical methods); Jones, supra note 24.

27 The earliest records suggesting infanticide are from the Tokugawa period in Japan (1600 to 1868 C.E.), when nine Times as many male births as female births were recorded. See Paul, W. Zarutskie et al., The Clinical Relevance of Sex Selection Techniques, 52 Fertility & Sterility 891, 891 (1989)Google Scholar; see also Austin, L. Hughes, Female Infanticide: Sex Ratio Manipulation in Humans, 2 Ethology & Sociobiology 109 (1981)Google Scholar. It is widely believed, however, that the practice had already existed for thousands of years. For a discussion of more modern infanticide among Tahitians, Formosans, Indians, and North Africans, see Linda Gordon, Woman's Body, Woman's Rights: A Social History of Birth Control in America 34 (1976); see also Nicholas D. Kristof, Peasants of China Discover New Way to Weed Out Girls, N.Y. Times, July 21, 1993, at Al, A6.

28 There are rare exceptions to this. In the 13th century story Heike Mongatari (The Tale of Heike), which recounts that in 10th century Japan certain monks and priests performed rituals “designed to transform a female fetus into a male.” the Tale of the Heike 97 (Helen Craig McCullough, trans. 1988).

29 So taught Aristotle. Choose your Baby's Sex, supra note 26, at 26-27.

30 Id. at 25-26; Ronald J. Levin, Human Sex Pre-Selection, 9 Oxford Rev. Reprod. Biology 161-62 (1987). French noblemen were still advised, as recently as the 1800s, that removal of the left testicle guaranteed male heirs. Levin, supra, at 162.

31 Levin, supra note 30, at 161-63.

32 Fred, Rosner, The Biblical and Talmudic Secret for Choosing One's Baby's Sex, 15 Isr. J. Med. Sci. 784 (1979)Google Scholar.

33 Choose your Baby's Sex, supra note 26, at 30.

34 Reported in Elizabeth M. Whelan, boy or Girl?: the sex Selection Technique that Makes all Others Obsolete 34 (1977).

35 Choose your Baby's Sex, supra note 26, at 24.

36 See generally Sally Langendoen & William Proctor, the Preconception Gender Diet: Diet A = BOY, Diet B = Girl 18-19 (1982).

37 Choose Your Baby's Sex, supra note 26, at 18-19, 24-30.

38 See generally Jones, supra note 24, at 11-12 (briefly surveying preferences in Bulgaria, Germany, India, China, and Pakistan). A 1987 survey of six Indian hospitals discovered that of 8000 abortions performed after the mother learned the sex of the fetus fully 7999 were of female fetuses. Teesta Setalvad, India: Daughters Have No Birth Right, Int'l Press Service, Feb. 24, 1987; see also Sheryl Wu Dunn, China's Castaway Babies: Cruel Practice Lives On, N.Y. Times, Feb. 26, 1991, at A4.

39 See generally Jones, supra note 24, at 12-14. One may hope that, in time, this disparity will diminish.

40 Anne, R. Pebley & Charles, F. Westhoff, Women's Sex Preferences in the United States: 1970 to 1975, 19 Demography 177, 184 (1982)Google Scholar.

41 Id. Estimates of the effect of domestic preferences on gender ratio have ranged from male/female ratios of 110:100 to as high as 122:100 or even 140:100. See generally Amitai, Etzioni, Sex Control, Science, and Society, 161 Science 1107, 1108 (1968)Google Scholar; Roberta, Steinbacher, Preselection of Sex, 20 Sciences 6 (1980)Google Scholar.

42 See generally Robert H. Blank, Regulating Reproduction 44-47 (1990); Shirley, F. Hartley & Linda, M. Pietraczyk, Preselecting the Sex of Offspring: Technologies, Attitudes, and Implications, 26 Soc. BIOLOGY 232 (1979)Google Scholar; Dorothy C. Wertz & John C. Fletcher, Fatal Knowledge? Prenatal Diagnosis and Sex Selection, Hastings Center rep., May/June 1989, at 21; Nan P. Chico, Confronting the Dilemmas OF Reproductive Choice: the Process of Sex Preselection (Ph.D. dissertation, University of California, 1989).

43 See generally Jones, supra note 24, at 20.

44 For a sociological perspective on sex choice, see Chico, supra note 42, at vi-vii (surveying letters of inquiry from parents to sex choice clinics).

45 Pre-existing social structures, of course, heavily influence such associations.

46 See infra part IV. See generally Victor A. Mckusick, Mendelian Inheritance in Man: Catalogs of Autosomal Dominant, Autosomal Recessive, and X-Linked Phenotypes 983 (1983) (giving an overview of various sex-linked diseases).

47 Such factors investigated included birth order, sex of the first-born child, age of the respective parents, frequency of intercourse, occupation, weather, illegitimacy, and even local geography. Levin, supra note 30, at 163; Theophilus, S. Painter, The Sex Chromosomes of Man, 58 Am. Nat. 506 (1924)Google Scholar.

48 Ultrasound uses high-frequency sound waves directed at the fetus. Echoes vary with the density of fetal morphology, and may be processed to generate a visual image of the fetus in utero. Genital development may be fairly reliably discerned nine weeks after conception. Chorionic villi sampling enables DNA analysis for indication of gender, during the first trimester of pregnancy, by aspirating sloughed-off fetal cells through a transcervical or transabdominal tube. Amniocentesis requires similar analysis, but cells are collected from amniotic fluid surrounding the fetus through a hollow needle inserted through the uterine wall. Amniocentesis is currently the most prevalent technique. See generally Charles Beckmann, Clinical Manual of Obstetrics (1983); Aubrey Milunsky, the Prenatal Diagnosis of Hereditary Disorders (1973).

49 See generally Stephen, L. Corson et al., Sex Selection by Sperm Separation and Insemination, 42 Fertility & Sterility 756 (1984)Google Scholar.

50 See generally Ferdinand, J. Beernink & Roland, J. Ericsson, Male Sex Preselection Through Sperm Isolation, 38 Fertility & Sterility 493-95 (1982)Google Scholar; Ferdinand, J. Beernink, et al., Sex Preselection Through Albumin Separation of Sperm, 59 Fertility & Sterility 382 (1993)Google Scholar [hereinafter Beernink, Sex Preselection Through Albumin Separation of Sperm].

51 Beernink, Sex Preselection Through Albumin Separation of Sperm, supra note 50, at 382-83.

52 See Jones, supra note 24, at 14-17.

53 Robert H. Blank, Regulating Reproduction 44-47 (1990). It is unknown how many abortions are provided for the purpose of sex selection, since such a purpose need not be revealed in order to have the procedure performed.

54 Teri, Randall, Gene Scene: Earlier, Eventually More Specific, Prenatal Genetic Diagnosis in Realm of Possibility, 264 JAMA 3113, 3113-14 (1990)Google Scholar; see also Larry Thompson, Cell Test Before Implant Helps Ensure Healthy “Test-Tube” Baby, Wash. Post, Apr. 27, 1992, at A3.

55 See generally Sex Selection of Children (Neil G. Bennett ed., 1983); Jones, supra note 24, at 25-31. Hostility toward those with sex preferences was manifested most recently (and eloquently) by a venerable columnist with widespread appeal: “These clatter traps who specify a preference [for a child of one sex] are a strange breed of jackass for which there is no known cure.” Ann Landers, Wash. POST, Aug. 24, 1993, at D8.

56 Two surveys five years apart, for example, measured the extent of approval of sex selection within a single set of women. They revealed that almost all who had registered neutrality on the issue in 1970 indicated approval or disapproval by 1975. Pebley & Westhoff, supra note 40, at 177, 181.

57 See, e.g., Mary Anne Warren, Gendercide: the Implications of Sex selection (1985) [hereinafter warren, gendercide].

58 More than 100 abortion bills have been introduced nationwide, most of which are based on the National Right-to-Life Committee's model, which forbids sex selection in the abortion context. Tamar Lewin, Stales Testing the Limits on Abortion, N.Y. Times, Apr. 2, 1990, at A14.

59 Laws prohibiting sex selection by abortion, for example, have been passed in Pennsylvania and Illinois. 18 Pa. Stat. Ann. § 3204(c) (Supp. 1993); Ill . Ann. Stat. ch. 38, para. 81-26, § 6(8) (Smith-Hurd Supp. 1990).

60 I am particularly grateful for the early instruction and continued guidance of William F. Zimmerman, Professor of Biology, Amherst College, whose study, knowledge, and insightful articulation of evolutionary biology principles has long been an inspiration.

61 The history of law and economics analysis, and the often mischaracterizing criticism from its detractors, requires that such statements are explicit. Any invocation in legal policy discourse of evolutionary biology is vulnerable to severe misinterpretation. One might think, for example, that the discipline may be invoked only to reveal a purportedly “correct” answer to a problem — one vested with the trappings of ontological goodness. See also infra, part III.A.2.

62 The research from which the basic contours of evolutionary biology have been drawn is, of course, voluminous. For background, see Richard Dawkins, the Selfish Gene (1976); Robert Trivers, Social Evolution (1985); see also Horace F. Judson, A History of the Science and Technology Behind Gene Mapping and Sequencing, in the code of Codes: Scientific and Social Issues in the Human Genome Project (Daniel J. Keveles & Leroy Hood eds., 1992). For a remarkably concise, sophisticated, and thorough introduction to the basic principles of genetics, heredity, and evolution, see 19 the new Encyclopaedia Britannica 699-740 (15th ed. 1992) (covering chromosomal structures, allelic interactions, sex linkages, genetic engineering, natural selection, and changes in gene frequencies).

63 More specifically, “adaptation arises because the continual generation of random variation is continually followed by differential survival and proliferation that is nonrandom, the more adaptive forms persisting while their alternatives perish.” Martin Daly & Marco Wilson, Homicide 3 (1988) (summarizing Darwin); see also Dawkins, supra note 62, at 43; Trivers, supra note 62.

The principal competing theory, that adaptation arises at the will of the divine, is an enormously popular theory with little, if any, scientific support. Note, however, that evolution need not be mutually exclusive with creation.

64 Such traits (like long necks on giraffes) can be so much more successful than competing traits (like short necks) that eventually the only remaining members of a species will all exhibit it.

65 Leaning on metaphors, we imagine that we live on only through our works, deeds, donated wings, and our influence on our children's character. In classic Cartesian fashion, we equate self and consciousness, despite the fact that any genes that recur identically in successive generations are potentially “immortal.” Our resistance to this perspective on Reproduction is understandable, but parochial.

66 Herbert Spencer, not Darwin, popularized the phrase “survival of the fittest,” which is a bastardization of Darwinian evolutionary theory. See generally Richard Hofstadter, The Vogue of Spencer, in Darwin 489, 490 (Philip Appleman ed., 1970). Spencer misunderstood, and grossly misapplied, Darwin in an effort to support the later disreputed Social Darwinism, which at tempted to invoke biology to support gender and class distinctions, laissez-faire capitalism, and political conservatism. Spencer's invocation of Darwin was as untrue to the source as was Hitler's of Nietzsche.

67 For a useful summary of the mechanism of natural selection, see Daly & Wilson, supra note 63, at 2. Inclusive fitness theory developed during the early 1960s. See, e.g., W.D., Hamilton, The Genetical Evolution of Social Behavior, 7 J. Theoretical Biology 1 (1964)Google Scholar.

68 Because each parent passes on 50% of his or her own genes to a child, X's daughter and X's sister each carry, on average, copies of one half of X's own gene combination. (The latter by virtue of her descent from the same parents.) Thus Reproduction by each will have identical inclusive fitness consequences with respect to X's genotype.

69 So noted in James Trefil, Sharks have no Bones: 1000 Things you Should know about Science 52 (1993) (noting important dates in evolution).

70 See generally John A. Paulos, Innumeracy: Mathematical Illiteracy and its Consequences (1988).

71 The material supporting this proposition is voluminous, exploring, in part, how genes design the neural circuits that underlie behavior through the controlled developmental interactions of nerve cells. See generally sources compiled in Trivers, supra note 62, at 433-455; Daly & Wilson, supra note 63, at 299-321; Richard D. Alexander, the Biology of Moral Systems 265-80 (1987); Human Reproductive Behavior: A Darwinian Perspective (Laura Betzig et al. eds., 1988); Martin Daly & Margo Wilson, Sex, Evolution, and Behavior 1 (1983).

72 As Richard Dawkins put it, no one would expect pigs to have wings, even if they would be useful now and then. Dawkins, supra note 62, at 38-41, 93.

73 A propensity to behave some way is not a command to so behave, a dictate to so behave, or an inescapable compulsion to so behave. It generally reflects that the behavior is more likely to occur than not to occur, in the absence of external factors militating otherwise (such as is often the case in humans, for example, when conscious analysis yields reasons to behave contrary to the predisposition). The degrees of likelihood may, of course, be large or miniscule. and our predisposition “can be overcome by cultural influences — or individual will power.” John H. Beckstrom, The Potential Dangers and Benefits of Introducing Sociobiology to Lawyers, 79 Nw. U. L. Rev. 1279, 1280 (1984-85).

74 The term “strategies,” although it is used pervasively in the scientific literature, might be misleading to those unfamiliar with the specific context in which it is used. It does not imply consciousness and decision-making. Neither need be present in a reproductive strategy. See, e.g., Trivers, supra note 62.

75 See generally T.H. Clutton-Brock, Reproductive Success (1988).

76 Those that do not protect would be at a competitive disadvantage with those that do, were it not for the compensating strategy of producing offspring in great quantities.

77 There is some evidence that humans are not exclusively dimorphic, as Westerners generally assume. See, e.g., Gilbert, Herdt, Mistaken Gender: 5-Alpha Reductase Hermaphroditism and Biological Reductionism in Sexual Identity Reconsidered, 92 Am. Anthropologist 433 (1990)Google Scholar.

78 See generally Matt Ridley, the Red Queen: Sex and the Evolution of Human Nature, Chapt. 4 (1994); David Crews, Animal Sexuality, Sci. Am., Jan. 1994, at 108.

79 See Sarah, Blaffer Hrdy, Daughters or Sons, 4 Natural History 63, 66-67 (1988)Google Scholar; see also, Ridley, supra note 78; Joseph S. Levine, Undersea Life 54 (1985); Anders, Berglund, Sequential Hermaphroditism and the Size-Advantage Hypothesis: An Experimental Test, 39 Animal Behav. 426 (1990)Google Scholar (sequential hermaphrodites function as one sex early in life and later as the other sex).

80 See generally Michael T. Ghiselin, the Economy of Nature and The Evolution of Sex (1974); Trivers, supra note 62, at 315-330 (discussing the evolution of sex).

81 Hrdy, supra note 79, at 66-67.

82 In those species that both reproduce sexually and fertilize internally, for example, natural selection will tend to favor males who limit the access of other males to their own female mates. In such a species, quite simply, a female will always be related to the product of her body, while a given male's paternity will remain an open question. Such an analysis is consonant with the prevalence of male creatures in such species to be more “territorial” about females than vice versa. See, e.g., Martin, Daly et al., Male Sexual Jealousy, 3 Ethology & Sociobiology 11 (1982)Google Scholar.

83 See Robert, L. Trivers & Dan, E. Willard, Natural Selection of Parental Ability to Vary the Sex Ratio of Offspring, 179 Science 90 (1973)Google Scholar; see also Hrdy, supra note 79, at 71-74 (detailing, in part, studies designed to be critical that, instead, supported the theory).

84 Lee, Cronk, Preferential Parental Investment in Daughters Over Sons, 2 Human Nature 387, 390 (1991)Google Scholar [hereinafter Cronk, Preferential Parental Investment in Daughters Over Sons]; see also Trivers & Willard, supra note 83, at 90-91.

85 Trivers and Willard provide this example in Trivers & Willard, supra note 83, at 90.

86 This may reflect, for example, a smaller maximum size, as well as the reduced access to resources that concomitantly poor social status may impose.

87 Sons in good condition, thus better able to out-survive and out-compete other males and impregnate numerous females, will pass on more of their mothers’ genes to the next generation than will high-quality daughters, whose reproductive output is limited by the number of young they themselves can bear. Steven, N. Austad & Mel, E. Sunquist, More Sons for Plump Possums, 4 Nat. Hist. 74, 75 (1988)Google Scholar.

88 Trivers & Willard, supra note 83, at 90.

89 See, e.g., Laura Betzig, Mating and Parenting in Darwinian Perspective, in Human Reproductive Behavior: A Darwinian Perspective 3 (Laura Betzig et al. eds., 1988) (reviewing theory and evidence to date on Human mating and parenting from a Darwinian perspective); Lee, Cronk, Parental Favoritism Toward Daughters, 81 Am. Scientist 272 (1993)Google Scholar (Human context) [hereinafter Cronk, Parental Favoritism Toward Daughters]; Cronk, Preferential Parental Investment in Daughters Over Sons, supra note 84, at 390 and citations therein (non-Human and Human contexts); Hrdy, supra note 79 (non-Human context); Matt Ridley, A Boy or a Girl: Is It Possible to Load the Dice? Smithsonian, June 1993, at 113 (non-Human and Human contexts); see also Eric L. Charnov, The Theory Of Sex Allocation (1982); Trivers, supra note 62, at 271-300; T.H. Clutton-Brock & S.D. Albon, Parental Investment in Male and Female Offspring in Mammals, in Current Problems In Sociobiology 223, 223-47 (King's College Sociobiology Group ed., 1982); Mildred Dickemann, Paternal Confidence and Dowry Competition: A Biocultural Analysis of Purdah, in Natural Selection and Social Behavior: Recent Research and new Theory 417, 419 (Richard D. Alexander & Donald W. Tinkle eds., 1981) [hereinafter Dickemann, Paternal Confidence and Dowry Competition].

90 The coypu is a guinea-pig-like creature native to South America.

91 In a study of red deer, the socially dominant mothers in the best physical condition were producing more sons than daughters, and were more “likely to have more grandchildren by their sons than by their daughters.” Hrdy, supra note 79, at 71-72. Low-ranking mothers were giving birth to more daughters than sons. Although the subordinate mothers had fewer grandchildren than did the dominant ones, what grandchildren they did have were more often born to daughters than sired by sons. Id. In an opossum study, better-fed mothers produced disproportionately male babies, at a ratio of up to 1.4:1. Austad & Sunquist, supra note 87, at 74-75. A study of coypu revealed that the fatter and healthier the female, the more likely her body was to terminate pregnancies of mostly female litters. Hrdy, supra note 79, at 71. Wood lemmings are capable of bearing three to four Times as many females as males. Id. at 68. Haplodiploid insect mothers, particularly wasps and bees, generally exercise extraordinary control over offspring sex ratio. She stores male sperm for long periods, using it to fertilize only when appropriate; fertilized eggs develop into daughters, unfertilized eggs into males. Id. at 66-67. Jewel wasps, among such haplodiploid creatures, exhibit perhaps the most dramatic and carefully-controlled ability to vary the sex ratio of offspring depending on environmental conditions. John H. Warren, Manipulating Mothers, Nat. Hist., Apr. 1988, at 68, 68-69. In spider monkeys the dominant mothers not only had more males, but cared more for the males by nursing them longer. Hrdy, supra note 79, at 71. There is also evidence of similar sex ratio skewing in hamsters, kangaroos, and white-tailed deer. See generally Ridley, supra note 78.

Interestingly, preliminary evidence of matrilineal cultures confirms the Model by producing the inverse result. A study of eighty births of matrilineal Rhesus macaques revealed that the proportion of sons produced by low-ranking females was nearly twice as high as that produced by high-ranking females. The likelihood that this result could have occurred by chance is fewer than five out of a hundred. Id. at 79.

92 DALY & Wilson, supra note 63, at 47. That this behavior is generally biologically adaptive is evidenced by langur monkeys. See infra text accompanying note 159.

93 John, Hartung, Matrilineal Inheritance: New Theory and Analysis, 8 Behavioral & Brain Sci. 661, 661 (1985)Google Scholar.

94 Trivers & Willard, supra note 83, at 91.

95 The average proportions by which genetics and learned behavior influence reproductive strategies is not, of course, known with precision.

96 Note that reproductive success is not measured simply in the number of offspring produced. An individual raising a small number of children successfully is likely to have a greater number of genes in later generations than an individual who produces more young than can successfully be raised to reproductive age.

97 See generally Betzig, supra note 89 (reviewing theory and evidence to date on Human mating and parenting from a Darwinian perspective); Laura, Betzig & Paul, Turke, Parental Investment by Sex on Ifaluk, 7 Ethology & Sociobiology 29 (1986)Google Scholar; Mildred, Dickemann, The Ecology of Mating Systems in Hypergynous Dowry Societies, 18 Soc. Sci. INFO. 163 (1979)Google Scholar [hereinafter Dickemann, Ecology of Mating Systems] (concluding from demographic records of British colonial India, traditional China, and early modern Europe that parents of the highest caste or class produced dramatically fewer reproductive daughters than sons); Dickemann, Paternal Confidence and Dowry Competition, supra note 89, at 419.

Evidence indicates that in some highly-stratified Human groups, male-biased sex ratios have been effected among high-status parents by female infanticide, abuse, and neglect. See generally James, L. Boone III, Parental Investment and Elite Family Structure in Preindustrial States: A Case Study of Late Medieval - Early Modern Portuguese Genealogies, 88 Am. Anthropologist 859 (1986)Google Scholar; Mildred Dickemann, Female Infanticide, Reproductive Strategies, and Social Stratification: A Preliminary Model, in Evolutionary Biology and Human Social Behavior (Napoleon A. Chagnon & William Irons eds., 1979) [hereinafter Dickemann, Female Infanticide]; Echart, Voland, Human Sex-Ratio Manipulation: Historical Data From a German Parish, 13 J. Hum. Evolution 99 (1984)Google Scholar. Both within and across cultures, socially and economically successful parents have been shown to disinherit daughters compared to their brothers. See generally Boone, supra; Dickemann, Female Infanticide, supra, at 321- 67; Pierre L., Van den Berghe & Gene, M. Mesher, Royal Incest and Inclusive Fitness, 7 Am. Ethnologist 300 (1980)Google Scholar; see also Who Chooses What?, Economist, Jan. 30, 1993, at 77 (discussing Trivers- Willard Model).

98 See, e.g., Walter Sullivan, Ratio of Male to Female Offspring Seems Tied to Survival, N.Y. Times, Aug. 16, 1983, at C3 (concluding that it is “well established” that Human mothers under stress give birth to a preponderance of girls).

99 See, e.g., Christina, Ruegsegger Veit & Raphael, Jewelewicz, Gender Preselection: Facts and Myths, 49 Fertility & Sterility 937, 937 (1988)Google Scholar.

100 See Cronk, Parental Favoritism Toward Daughters, supra note 89; Cronk, Preferential Parental Investment in Daughters Over Sons, supra note 84, at 397.

101 Cronk, Preferential Parental Investment in Daughters Over Sons, supra note 84, at 397.

102 Betzig & Turke, supra note 97, at 32.

103 Cronk, Preferential Parental Investment in Daughters Over Sons, supra note 84, at 404. Mildred Dickemann has persuasively argued that “in a society with high male mortality and reproductive variance, parents should regard the bearing and rearing of boys as high-risk, high-benefit strategy, and the rearing of girls as of lower risk but lower gain.” Dickemann, Paternal Confidence and Dowry Competition, supra note 89, at 425. Similarly, “where the socioeconomic conditions of the offspring differ, then the relative value of each sex differs … .” Id. at 425.

Note, too, that there is some evidence of male-biased offspring sex ratio among the upper classes in Great Britain, Germany, and the United States. See generally Ulrich, Mueller, Social Status and Sex, 363 Nature 490 (1993)Google Scholar.

104 Cronk, Parental Favoritism Toward Daughters, supra note 89, at 277.

105 Martin, Smith et al., Inheritance of Wealth as Human Kin Investment, 8 Ethology & Sociobiology 171 (1987)Google Scholar. See generally Sarah, B. Hrdy & Debra, S. Judge, Darwin and the Puzzle of Primogeniture, 4 Hum. Nature 1 (1993)Google Scholar (surveying studies in England, Portugal, India, Germany, and the United States).

106 Griswold v. Connecticut, 381 U.S. 479 (1965).

107 Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992).

108 Id. at 2806-07.

109 See generally Jones, supra note 24, at 35-43.

110 “Falsification” refers to a scientific method, first elaborated by Karl Popper, that assumes nothing can be sufficiently verified to be known as always true, but that useful working hypotheses may be tested by systematic attempts to refute them. See generally Bryan Magee, Karl Popper 32 (1973). In this light, Nature is simply descriptive without being prescriptive.

111 This is particularly surprising, given how deeply the concept of evolution has permeated the culture. See, e.g., E. Donald, Elliott, The Evolutionary Tradition in Jurisprudence, 85 Colum. L. Rev. 38 (1985)Google Scholar (noting that “the idea that law ‘evolves’ is so deeply ingrained in Anglo-American legal thought that most lawyers are no longer even conscious of it as a metaphor.“).

112 Moreover, those who believe in the inherent superiority of any particular trait need fear no innovation; by definition, inferior traits could not proliferate endlessly. For a thorough explanation of hereditary traits and genetics, see The Principles of Genetics and Heredity, 19 the New Encyclopaedia Britannica 699 (1991).

113 For an introduction to the literature on the effects of biology on Human behavior, see Alexander, supra note 71; Richard D. Alexander, Darwinism and Human Affairs (1979); Lu- IGI L. Cavalli-Sforza & Marcus W. Feldman, Cultural Transmission and Evolution (1981); Dawkins, supra note 62; Evolutionary Biology and Human Social Behavior, supra note 97; Charles J. Lumsden & Edward O. Wilson, Promethean Fire (1983); Edward O. Wilson, on Human Nature (1978); Richard D. Alexander, Evolutionary Approaches to Human Behavior: What Does the Future Hold?, in Human Reproductive Behaviour: A Darwinian Perspective, supra note 71 ;see also Beckstrom, Evolutionary Jurisprudence, supra note 8; John H. Beckstrom, Sociobiology and the law: the Blology OF Altruism in the Courtroom of the Future (1985); John H. Beckstrom, The Potential Dangers and Benefits of Introducing Sociobiology to Lawyers, 79 Nw. U. L. REV. 1279 (1984-85); Owen D.Jones, Law and Evolutionary Biology: Obstacles and Opportunities, 10 J. Contemp. Health L. & Pol'y (forthcoming 1994).

Increasing evidence suggests what evolutionary biology predicts: that behavioral traits (“personality” in humans) can be genetically influenced. See, e.g., Thomas, J. Bouchard Jr., et al., Sources of Human Psychological Differences: The Minnesota Study of Twins Reared Apart, 250 Science 223 (1990)Google Scholar. But see John Horgan, Eugenics Revisited, Sci. Am., June 1993, at 122 (criticizing the conceptual bases of such studies).

114 See infra part II.A.2.

115 It thus makes no sense to think of Human Reproduction as limited to a certain pattern over long periods of time. Nevertheless, and for example, it may make perfect sense in the short term operation of a maternity wing of a hospital, whose foundations crumble far faster than Human reproductive strategies typically evolve, for administrators to consider prevalent reproductive traits “typical” of our species.

116 See generally, Human Reproductive Behaviour: A Darwinian Perspective, supra note 71; Laura L. Betzig, Despotism and Differential Reproduction: A Darwinian View of History (1986); Glenn Hausfater & Sarah B. Hrdy, Infanticide: Comparative and Evolutionary Perspectives (1984); David M. Buss, Sex Differences in Human Mate Selection Criteria: An Evolutionary Perspective, in Sociobiology and Psychology: Issues, Ideas, and Findings (C. Crawford et al. eds., 1987); Dickemann, The Ecology of Mating Systems, supra note 97; Dickemann, Paternal Confidence and Dowry Competition, supra note 89; Nicholas, B.Jones, Bushman Birth Spacing: A Test for Optimal Birth Intervals, 7 Ethology & Sociobiology 91 ( 1986)Google Scholar; N. Blurton Jones & R.M. Sibley, Testing the Adaptiveness of Culturally Determined Behaviour: Do Bushman Women Maximize Their Reproductive Success By Spacing Births Widely and Foraging Seldom?, Hum. Behav. & Adaptation 135 (N. Blurton Jones & Vernon Reynolds eds., 1978).

117 See Richard D. Alexander, Evolution and Culture, in Evolutionary Biology and Human Social Behavior, supra note 97, at 59. See generally sources cited supra notes 113-16; Evolutionary Biology and Human Social Behavior, supra note 97; 13 Ethology & Sociobiology 303- 543 (1992) (compilation of several articles on this subject).

118 See supra note 22 and accompanying text.

119 Compare John, A. Robertson, Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth, 69 VA. L. REV. 405, 405 (1983)Google Scholar (providing one of the earliest arguments for an expansion in the conception of reproductive autonomy).

120 We strongly favor monogamy and disfavor adultery, for example, and impose socially and legally enforced obligations for offspring upon parents.

121 As Laura Betzig put it in Mating and Parenting in Darwinian Perspective, supra note 89, at 15:

[T]he discovery that behaviors are or are not adaptive says nothing at all about the possibility or desirability of changing them. The question of how easy or hard it may be to change a behavior can be an extremely important one, but it is independent of the question of whether or not that behavior is adaptive. and neither the prediction nor the finding that a behavior is adaptive amounts to a sanction. Natural laws often have little in common with the way we would have them. But our ability to understand them must often precede our ability to overcome them.

See also Beckstrom, Evolutionary Jurisprudence, supra note 8 and accompanying text.

122 As Richard Alexander put it:

[T]o speak of a tendency or propensity produced by natural selection, or a lifetime shaped by evolution, seems to many to be genetic determinism that erases notions of free will, choice, and plasticity in behavior. To some it seems to justify evil or selfish acts as genetically determined or developmentally inescapable. This kind of skepticism leads such critics to deny even the possibility of an evolved Human Nature.

Richard D. Alexander, Evolutionary Approaches to Human Behavior: What Does the Future Hold?, in Human Reproductive Behaviour: A Darwinian Perspective, supra note 71, at 317, 321. For a discussion of the dangers of “ genetic essentialism” and the “normative sacrifices that are made as biological conceptions of personhood achieve salience within the law,” see Rochelle, C. Dreyfuss & Dorothy, Nelkin, The Jurisprudence of Genetics, 45 Vand. L. Rev. 313, 316 (1992)Google Scholar.

123 Many disciplines have been even more antagonistic to the idea of examining biological influences on Human life than they were to illuminating Human interactions with economics. (Some social scientists have built entire careers out of attacking those things that evolutionary - biologists have not said.) The biologist Richard Alexander ascribes much of this antagonism to the fear that recognizing genetic variations between people of the world, and suggesting any biological influences on contemporary culture, will inevitably lead to deleterious ends — the characterization of some groups as inferior. For an excellent discussion of this, see Alexander, supra note 122, at 318.

124 Our society is replete with useful principles that have some, but not dispositive, normative weight in problem-solving. Improvement of fuel efficiency is generally a good thing, for example, but it must often yield to more competing needs. Eradication of discrimination is a worthy goal, yet not one that makes every plan to do so advisable. Capitalism may be heralded by many, but not necessarily in an unregulated form blind to other values.

125 Tabitha M. Powledge, Toward a Moral Policy for Sex Choice, in Sex Selection OF Children 201, 211 (Neil G. Bennett ed. 1983) [hereinafter Powledge, Toward a Moral Policy for Sex Choice].

126 Mark, I. Evans et al., Attitudes on the Ethics of Abortion, Sex Selection, and Selective Pregnancy Termination Among Health Care Professionals, Ethicists, and Clergy Likely to Encounter Such Situations, 164 Am. J. Obstetrics and Gynecology 1092, 1098 (1991)Google Scholar.

127 See, e.g., Horgan, supra note 113.

128 I myself used the term in a previous article on sex selection technology, without reflecting on the scope of its meaning. See Jones, supra note 24, at n . l l l .

129 Powledge, Toward a Moral Policy for Sex Choice, supra note 125, at 211.

We have been deceived, partly by Nazi history and partly by devisors of fiction like Aldous Huxley, into believing that eugenic ideas will be imposed by governments. We simply do not see that attempts by individual couples to achieve particular kinds of children are no different, except that the one is imposed by state power and the other appears voluntary. Id.

130 “Eugenics” is: “[t]he study of hereditary improvement of a breed or race, esp. of Human beings, by genetic control.” AMerican Heritage Desk Dictionary (1981); “the science of improving the qualities of the Human race, esp. by careful selection of parents.” Random House Dictionary (1973); “a science that deals with the improvement of hereditary qualities in a series of generations of a race or breed esp. by social control of Human mating and Reproduction,” “the process or means of race improvement.” Webster's third New International Dictionary (1968); “[t]he science which deals with influences, primarily those admitting of social control, that improve inborn or hereditary qualities in a series of generations of a race or breed,” “the process or means of race improvement, as by restricting mating to superior types suited to each other.” Webster'S New International Dictionary (1954); see also the Encyclopaedia NEW Britannica: Biological Sciences 981-82 (1992); Michael, H. Shapiro, The Technology of Perfection: Performance Enhancement and the Control of Attributes, 65 S. Cal. L. Rev. 11, 46 n.l 10 (1991)Google Scholar (” ‘Genetic engineering,’ taken broadly, also may refer to eugenic measures — rules or practices concerning mating and Reproduction, sterilization, abortion, infanticide and genocide.“).

131 See Plato, The Republic, in The Portable Plato 281, 469-73 (Scott Buchanan ed., 1986); see also Ruth Macklin & Wilard Gaylin, Mental Retardation And Sterilization 63 (1981); William T. Vukowich, The Dawning of the Brave New World — Legal, Ethical, and Social Issues of Eugenics, U. Ill . L. Rev. 189, 189 (1971).

132 Francis Galton, Inquiries into Human Faculty and its Development 24 N.L (1883); Daniel J. Kevles, in the Name of Eugenics: Genetics and the uses of Human Heredity ix (1985) [hereinafter Kevles, in the Name of Eugenics].

133 Harper Encyclopedia of Science 423 (James R. Newman ed., 1967).

134 Galton, supra note 132, at 25 n . l , cited in Kelves, in the Name of Eugenics, supra note 132, at ix. Galton argued that families of reputation were more likely to have offspring endowed, as a matter of heredity, with good character. Kevles, in the Name Of Eugenics, supra note 132, at 4. Galton surmised that Eugenics could provide a “highly gifted race of men [sic] by judicious marriages during several consecutive generations.” Francis Galton, Hereditary Genius: an Inquiry into its laws and Consequences 1 (1869) [hereinafter GALTO'N, Hereditary Genius], cited in KELVES, in the Name of Eucenics, supra note 132, at iv. By today's standards, Galton was not a politically correct fellow, brushing aside the notion that social and economic advantages gave some individuals a decisively non-biological head start.

135 Galton observed: “We may not be able to originate, but we can guide. The processes of evolution are in constant and spontaneous activity, some towards the bad, some towards the good. Our part is to watch for opportunities to intervene by checking the former and giving play to the latter.” Galton, HEREDITARY Genius, supra note 134, at xx, xxvii.

136 For information about the course of Eugenics, see generally Hamilton Cravens, the Triumph of Evolution: American Scientists and the Hereditary-Environment Controversy, 1900-41 (University of Pennsylvania Press 1978); Mark Haller, Eugenics: Hereditarian Attitudes in American Thought (1963); Kevles, in the Name OF Eugenics, supra note 132; the Wellborn Science: Eugenics IN Germany, France, Brazil, and Russia (Mark B. Adams ed., 1990) [hereinafter the Wellborn Science]; Daniel, J. Kevles, Vital Essences and Human Wholeness: The Social Readings of Biological Information, 65 S. Cal. L. Rev. 255, 259-65 (1991)Google Scholar [hereinafter Kevles, Vital Essences and Human Wholeness].

137 Kevles, Vital Essences and Human Wholeness, supra note 136, at 260 (1991).

138 Kelves, in the Name OF Eugenics, supra note 132, at 89.

139 For example, eugenicists looked for discernible links, such as head circumference, to behavioral abilities. See, e.g., Steven Gould, the Mismeasure OF Man (1981) (discussing historical head-circumference studies).

140 Immigration Act of 1924, ch. 190, 43 Stat. 153 (repealed 1952).

141 The Supreme Court upheld such legislation as constitutional in Buck v. Bell, 274 U.S. 200 (1927) (Holmes, J.), making famous the phrase “three generations of imbeciles are enough.” Id. at 207.

142 Kevles, Vital Essences and Human Wholeness, supra note 136, at 263.

143 Elyce, Z. Ferster, Eliminating the Unfit — Is Sterilization the Answer?, 27 Ohio St. Lj. 591, 594-95 (1966)Google Scholar, P. Marcos, Sokkappa, Comment, Sterilization Petitions: Developing Judicial Guidelines, 44 Mont. L. Rev. 127, 128 (1983)Google Scholar.

144 Kevles, Vital Essences and Human Wholeness, supra note 136, at 264.

145 See id. at 264. Concerning Nazi Eugenics, see generally Benno Muller-Hiix, Murderous Science: Elimination BV Scientific Selection OF Jews, Gypsies, and Others, Germany 1933-45 (1988); Robert N. Proctor, Racial Hygiene: Medicine Under the Nazis 95-117 (1988); Sheila F. Weiss, Race Hygiene and National Efficiency: The Eugenics of Wilhelm Schallmayer, in the Wellborn Science, supra note 136.

146 “Eugenics” can be separated from its history, in a principled fashion, in much the same way that “nuclear” can be separated from “war,” “reactor” and “Chernobyl.“

147 For a discussion of various ethical issues in the context of selected characteristics, see John C. Fletcher, Ethics and Public Policy: Should Sex Choice Be Discouraged?, in Sex Selection of Children 213 (Neil G. Bennett ed., 1983); John C. Fletcher, Is Sex Selection Ethical, in Research Ethics (Kare Berg & Knut Tranoy eds., 1983). See generally John, C. Fletcher, Moral Problems and Ethical Issues in Prospective Human Gene Therapy, 69 Va. L. Rev. 515 (1983)Google Scholar; John, C. Fletcher & Dorothy, C. Wertz, Genetics and the Law: Ethics, Law, and Medical Genetics: After the Human Genome is Mapped, 39 EMORY L.J. 747 (1990)Google Scholar; Dorothy, C. Wertz & John, C. Fletcher, Ethical Problems in Prenatal Diagnosis: A Cross-Cultural Survey of Medical Geneticists in 18 Nations, 9 Prenatal Diagnosis 145 (1989)Google Scholar.

148 See, e.g., John C. Fletcher, Is Sex Selection Ethical, in Research Ethics (Kare Berg & Knut Tranoy eds., 1983); Tabitha M. Powledge, Unnatural Selection: On Choosing Children's Sex, in the Custom-Made Child? Women Centered Perspectives 193, 196 (Helen B. Holmes et al. eds., 1981) (describing sex selection as “the original sexist sin“); see also Warren, Gendercide supra note 57, at 83-88. It seems still to be an open question whether context-specific, rather than simply class-based and categorical, sex preference is sufficiently objectionable to warrant Blanket treatment of all preference-based sex choice or trait selection. Would it be invidiously discriminatory for a mother simply to attempt to bear a child of a gender opposite to that of a child she already has? Recent statistics do, for instance, suggest that the majority of women actually seeking sex selection may be doing so in an attempt to balance the sex composition of offspring. See Chico, supra note 42.

The very real concern that trait selection may promote discriminatory effects on those not directly involved in TST is a more consequentialist than ethical problem. Accordingly, it is included within the scope of part III.A.2. infra. For analysis of the consequentialist concerns in general, see Jones, supra note 24.

149 “Commodification” arguments protest people treating children like television sets. (For a dialogue raising the commodification problem in the adoption context, see generally Tamar, Frankel & Frances, H. Miller, The Inapplicability of Market Theory to Adoptions, 67 B.U. L. REV. 99, 103 (1987)Google Scholar (arguing that the commingling of children and finances, as elaborated in Elisabeth, M. Landes & Richard, A. Posner, The Economics of the Baby Shortage, 7 J. LEGAL STUD. 323 (1978)Google Scholar, and later in Richard, A. Posner, The Regulation of the Market in Adoptions, 67 B.U. L. Rev. 59 (1987)Google Scholar, “destroyfs] the dignity and autonomy of infants.“)).

While it is certainly appropriate, in a compassionate world, to emphasize the importance of non-commodity values, the spectre of commodification can probably not, by itself, support prohibition of trait selection. The reason this is so is that if significantly commodifying behavior is truly to be discouraged, one could not legitimately demarcate the pre-birth from post-birth contexts. Parents, in fact, frequently commodify their children to some extent. First, parents often want to “have” a child to satisfy a personal, religious, or family desire. Were parental desires not paramount, we would expect to find more parents who would feel compelled to have a child, despite a preference not to do so, because that future child's interest in being conceived trumps their own disinterest. Second, it is common to observe people living vicariously through their children. It is hard to imagine that this does not, in a very real way, constitute a commodifying “use.” Parents may want a child to enter the family business, carry on the family name, or provide support and security in old age. Third, anything we can acquire or create that gives us pleasure is to some extent commodified. Placing a child in a particular private school, or encouraging her to become a doctor or a lawyer, is as much a commodifying act of creation as is selecting her sex, or another trait a parent would like her to manifest. Each involves the manipulation of a person's manifested characteristics through will and money. It seems disingenuous to prohibit a woman from selecting a trait in a child solely because her action would make patent what is already a latent component of the parent-child relationship — that children, in part, are created to satisfy parental desires. It seems harsh to say so principally because it seems unromantic to say so — in much the way as it seems crass to recognize that some parts of marriage function in much the same way as a contract. Yet commodifying children, as much of childrearing inevitably is, does not make children only commodities, any more than the contractual elements of marriage make marriage only a contract.

150 Distinguished scholars of societal responses to emerging reproductive technologies have observed that much criticism, at the most fundamental level, derives from objections to medical meddling in what “should be a ‘natural’ process.” Lori, B. Andrews & Lisa, Douglas, Alternative Reproduction, 65 S. Cal. L. Rev. 623, 632 (1991)Google Scholar (surveying context and criticism of reproductive technologies); see aho Warren, Gendercide, supra note 57, at 78-81. This indicates, of course, a normative (and contestable) bias that the natural is good and the “unnatural” bad. But fathoming the depth and complexity of the “it's unnatural” objection requires careful attention to the rich variety of meanings “unnatural” may convey. “Unnatural” can mean many things and, like obscenity, its boundaries are defined more by impression than by logic. Cf. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (“I shall not today attempt further to define [hardcore pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it… .“).

Dictionaries indicate that “unnatural” can mean, among other things, “perverse,” “abnormal,” or even “contrary to the course of Nature.” RAndom House Dict. 1558 (1981). While arguments invoking the word cannot be undermined by hypertextual and literal deconstruction alone, it is nonetheless quite important to note that “unnatural,” as a label, carries no normative conclusion. It is a present time description (subject to later falsification) of the frequency or infrequency with which the branded object or event has been observed.

Scientists are constantly discovering in the natural world things previously thought to be “not present in Nature.” “Normality” has meaning only with reference to prevailing practices, and these clearly change with time. and concluding that something is “contrary” to the course of Nature imports a sense of “purpose” to Nature's scheme that (even while appealing to those inclined to see a design or intent in the unfolding of events and the emergence of behaviors, biological structures, and interactive ecosystems) is completely undemonstrable without reference to other value judgments. These must lie between the simply descriptive observation and the normative conclusion, since it does not logically follow that because something is unnatural it should, for that reason alone, be avoided.

Moreover, legitimate invocation of the “it's unnatural” argument requires constant vigilance of emerging discoveries and thinking in natural fields. As we saw in part II.A.2 supra, in many species the ability to influence offspring sex is as natural a trait as is live-birth or egg-laying.

151 This possibility has caused marked tension within and between certain feminist groups. The general trend toward supporting increased control by women of their bodies and their professional and personal lives confronts the dilemma that governmental laissez-faire may enable discriminatory acts and the commodification of the female body, on the one hand, while severely restricting sex selection may compromise hard-won reproductive freedoms, on the other. See generally Man-Made Women: How New Reproductive Technologies Affect Women (Gena Corea et al. eds., 1987); Catharine, MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L.J. 1281, 1317 n.157 (1991)Google Scholar; Roberta Steinbacher, Futuristic Implications of Sex Preselection, in the Custom- Made Child? Women-Centered Perspectives 187 (Helen B. Holmes et al. eds., 1981); Norma, J. Wilder, Society's Response to the New Reproductive Technologies: The Feminist Perspectives, 59 S. Cal. L. Rev. 1043 (1986)Google Scholar; Helen B. Holmes & Betty B. Hoskins, Prenatal and Preconception Sex Choice Technologies: A Path to Femicide? (1984) (paper presented at the Second International Interdisciplinary Congress on Women, Women's Worlds: Strategies for Empowerment, in Groningen, Netherlands).

152 See generally Paul Singer & Dorothy Wells, Making Babies: the New Science and Ethics of Conception 153 (1985); Warren, Gendercide, supra note 57; Evans et al., supra note 126, at 1092; Amatai, Etzioni, Sex Control, Science, and Society, 161 Science 1107 (1968)Google Scholar; Tabitha Powledge, Toward a Moral Policy for Sex Choice, in Sex Selection of Children 201, 204-05 (Neil G. Bennett ed., 1983); Roberta Steinbacher, Preselection of Sex, Science, Apr. 1980, at 6, 28. These arguments essentially reflect the concern that sex selection imposes “externalities” (that is, costs of an activity not borne by the actor herself) upon society. See Jones, supra note 24, at 19-25 (surveying arguments for and against sex selection).

153 Jones, supra note 24.

154 The extent to which social externalities can and should influence a regulatory policy is beyond the scope of this article.

155 See supra notes 63-68 and accompanying text; see also Trivers, supra note 62, at 67-86; Dawkins, supra note 62; Richard Dawkins, the Extended Phenotype (1982); George C. Williams, Group Selection (1971); George C. Williams, Adaptation and Natural Selection (1966).

156 Before group selection was powerfully refuted, even biologists used to believe, for instance, that sexual Reproduction enabled various species to be evolutionarily flexible, thus promoting their long term survival. For a classic example of this, see generally Marvin Harris, COWS, PIGS, Wars and Witches (1974). Such “group function” accounts, still commonly encountered in the social sciences to explain Human institutions and behaviors in terms of their contribution to the good of the group, probably derive from an analogy that is incorrect and misleading: that the parts of Human societies (subclasses, institutions) are like the parts (organs, tissues) of an individual, all subserving the maintenance and survival of the group. The distin guishing fact is that cells are entirely genetically related, whereas members of social groups are not. See generally Trivers, supra note 62.

157 See generally Trivers, supra note 62, at 67-86.

158 See id. at 67-86. Note also that the fact that cooperation can evolve as a matter of selfrather than group-interest is a central tenet of game theory in international politics. See, e.g., id. at 361-394; Robert Axelrod, the Evolution of Cooperation (1984).

159 Trivers, supra note 62, at 71-76. This behavior is also exhibited in the Human context. See supra note 92 and accompanying text.

160 people used to cite as evidence of group selection the fact that in some insect species individuals devote all their energies to servicing children of the queen. Insects, however, have a haplo-diploid, rather than diploid, chromosomal structure. See generally Randy Thornhill & John Alcock, the Evolution of Insect Mating Systems (1983); Trivers, supra note 62, at 169-202; Robert, Trivers & Hope, Hare, Haplodiploidy and the Evolution of Social Insects, 191 Science 249 (1976)Google Scholar. Consequently, since an individual is more related to its own sibling than it would be to its own offspring, such insect behavior is not only consistent with gene selection, but collateral proof of it. Id. Similarly, many group selectionists would point to the apparently altruistic warning calls of ground squirrels. Later studies revealed that their behavior, too, fits the gene selection model. See, e.g., Trivers, supra note 62, at 109-44; Warren, G. Holmes & Paul, W. Sherman, Kin Recognition in Animals, 71 Am. Scientist 46 (1983)Google Scholar; Warren, G. Holmes & Paul, W. Sherman, The Ontogeny of Kin Recognition in Two Species of Ground Squirrels, 22 Am. Zoologist 491 (1982)Google Scholar; Robert, Trivers, The Evolution of Reciprocal Altruism 46 Q. Rev. Biology 35 (1971)Google Scholar. The propensity to call is directly related to the local concentration of relatives. Ground squirrels, moreover, are notoriously cannibalistic, but primarily of unrelated pups. See generally Paul, W. Sherman, Kinship, Demography, and Belding's Ground Squirrel Nepotism, 8 Behav. Ecology and Sociobiology 251 (1981)Google Scholar; Paul, W. Sherman, Nepotism and the Evolution of Alarm Calls, 197 Science 1246 (1977)Google Scholar; Paul W. Sherman, Reproductive Competition and Infanticide in Belding's Ground Squirrels and Other Animals, in Natural Selection and Social Behavior: Recent Research and new Theory 311 (Richard D. Alexander & Donald W. Tinkle eds., 1981).

161 Our own economy provides a useful parallel. The individual/group distinction makes clear that while competition between corporations may generally result in more efficient corporations and greater benefit to consumers, companies do not compete in order to become more efficient or for the good of consumers. Why is this distinction relevant? Consider a labor union. Whether a union on strike is the result of individuals motivated principally to pursue the good of all, or of individuals temporarily banded together because they have common individual interests, will enable the more accurate prediction of individual behavior when faced with different management proposals.

162 Even were we to assume that the group selectionist model were correct, the “bad for the species” charge would face three significant obstacles.

First, those valuing the group status quo, and fearing disruption by reproductive innovation, fail to address the fact that the status quo is itself a product of selective evolutionary pressures (whether at the level of the gene or the group). It is a product of variation, diversity, and differential Reproduction as a consequence of natural selection. One cannot logically exalt the momentary result of the evolutionary process over the process itself by arguing for a sudden, and unprecedented stasis. Nor can one logically suppose, at any stage of an evolutionary process, that an acme in development has been reached and that all further variation would merely degrade a species.

Second, group selectionists generally advocate diversity, as something that increases the likelihood that a few will survive if all are faced with a novel threat. Why, therefore, should reproductive innovation, like sex selection, be exceptional?

Third, no group selectionist has adequately explained why it would be more deleterious to the Human population to let a parent select an offspring trait, such as sex, than it is to let the genetically handicapped reproduce. Group selectionist theory would militate far more strongly toward a policy of mandatory sterilization of, for example, the retarded or hemophiliac, than would gene selection.

163 “[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” John Stuart Mill, O N Liberty 68 (Penguin Books 1985) (1859).

164 Widespread use of TSTs may also yield significant, and not necessarily benign, social externalities. See John, A. Robertson, Embryos, Families, and Procreative Liberty: The Legal Structure of the New Reporduction, 59 S. Cal. L. Rev. 939, 989-90 (1986)Google Scholar. For example, knowledge that others are using TSTs may offend the conscience, and awareness of patterns in selection may exacerbate insecurity among, or discrimination against, those without sought-after traits. While such externalities are by no means unimportant, and do represent harms of a sort, they will generally be outweighed by the individual harm that would obtain alternatively from circumbscribing individual reproductive autonomy. A comprehensive method for incorporating such externalities into a harm analysis is beyond the scope of this Article.

It is worth noting, however, that in some circumstances the non-use of TSTs may also yield significant externalities. The estimated lifetime cost of institutionalizing someone with Down's Syndrome, for example, is $250,000. It has been estimated that, cumulating costs per child with Down's Syndrome, this approaches an annual cost of over $1.25 billion. George P. Smith II, Bloethics and the Law: Medical, Socio-Legal and Philosophical Directions for A Brave New World 173 (1993).

165 For a discussion explaining the conceptual groundwork for a policy of minimum state intervention, see Joseph Goldstein et al, Before the Best Interests of the Child 3-14 (1979).

166 See, e.g., Parham v. J.R., 442 U.S. 584, 602-03 (1979) (“[Hjuman experience … teach[es] that parents generally do act in the child's best interests.“). See also Developments in the Law — Medical Technology and The Law, 103 Harv. L. Rev. 1519, 1595 n.81 (1990). At the very least, “the state is too crude an instrument [to be the primary protector of children, having] neither the resources nor the sensitivity to respond to a growing child's ever-changing needs and demands.” Goldstein et al., supra note 165, at 12.

167 The power of the state may secure the health of children against “impeding restraints and dangers.” Prince v. Massachusetts, 321 U.S. 158, 168 (1943).

168 Goldstein et al., supra note 165, at 16. See generally Sanford N. Katz et al., Child Neglect Laws in America, Fam. L.Q., Spring 1975, at 1.

169 See generally Robert M. Horowitz & Howard A. Davidson, Legal Rights of Children 262-313 (1984); cf. Goldstein et al., supra note 165, at 72 (proposing, as one ground for state intervention, “serious bodily injury inflicted by parents upon their child, an attempt to inflict such injury, or the repeated failure of parents to prevent their child from suffering such injury.“).

170 See Horowitz & Davidson, supra note 169, at 236-39, Finlay v. Finlay, 240 N.Y. 429 (1925) (Cardozo, J.) (providing the best early expression of the rationale underlying the “best interests” principle). Contra Goldstein et al., supra note 165, at 133-38 (criticizing the “best interests of the child” formulation).

Thus, for example, the state is justified, over parents’ objections on religious grounds, to request court-ordered blood transfusions for children deemed in need of them. See Jehovah's Witnesses v. King's County Hosp., 278 F. Supp. 488, 504 (W.D. Wash. 1967), aff'd, 390 U.S. 598 (1968); New Jersey v. Perricone, 181 A.2d 751 (N.J. 1962); Hoener v. Bertinato, 171 A.2d 140 (N.J. County Ct. 1961). For court-ordered examinations by doctors and dentists, see Commonwealth v. Twitchell, 617 N.E.2d 609 (Mass. 1993); In re Gregory S., 380 N.Y.S.2d 620 (N.Y. Fam. Ct. 1976).

171 For a discussion of why a child's interest generally becomes paramount after the state has cause to intervene, see Goldstein et al., supra note 165.

172 See, e.g., Finlay, 40 N.Y. at 429.

173 See Horowitz & Davidson, supra note 169, at 265; see also Michael, Wald, Stale Intervention on Behalf of Neglected” Children: A Search for Realistic Standards, 27 Stan. L. Rev. 985 (1975)Google Scholar; Robert, E. Buckholz Jr., Constitutional Limitations on the Scope of State Child Neglect Statutes, 79 Colum. L. Rev. 719 (1979)Google Scholar.

174 While certain gene therapies may occur after birth, they are beyond the scope of this Article.

175 See Horowitz & Davidson, supra note 169, at 237.

176 I r efer here to a specific historical standard, without endorsing its implicit rejection of t he “reasonable person” alternative.

177 While this Standard is more appropriate to a context in which it would be invoked prior to infliction of harm, rather than after, it is, in fact, commensurate with the “best interests” standard. Courts have generally allowed a parent, for example, to inflict corporal punishment to discipline children, so long as the force used is not designed or known to create a substantial risk of death, serious bodily injury, disfigurement, extreme pain, mental distress, or gross degradation. In re E.S., 474 A.2d 432 (Pa. 1984).

178 It is unnecessary, for the purpose of examining harm in the context of a future child, to address metaphysical questions about when life begins. The Supreme Court has repeatedly made clear that the State “has a substantial interest in potential life… .” Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992). Although neither a sperm nor an egg has a legally cognizable interest, the decision to employ TST puts each of them on a trajectory toward personhood, during which they become more than just potential life. They join to become intended life. The interest of that life need not be formally cognizable to be relevant; it becomes ripe for serious consideration when clinicians lay hands on the tools of creation. The relevant question, therefore, is whether, if a child may be born following TST, it may have sustained harm, and if so what kind?

179 There has, of course, been considerable debate in the abortion context about whether the moment of fertilization is more significant than the moment a fertilized egg attaches to the wall of the uterus (which it may or may not do). See generally Warren, Quinn, Abortion: Identity and Loss, 13 Phil. & Pub. Aff. 24 (1984)Google Scholar. In the circumstances here discussed, which may include in vitro fertilization and subsequent implantation, the moment of fertilization has increased significance.

180 Genetic engineering involves changes in genetic material inside of cells, as by altering, removing, inactivating or adding genes. (Gene splicing, for example, involves splicing together a chain of genes in order to rearrange or substitute new genetic matter, thereby altering the genetic composition of the cell.) Gene therapy involves treating a genetic disease by engineering somatic cells in and for the affected person's body. Germ-line therapy involves work with germ cells or early embryos. See generally Karjala, supra note 5; Shapiro, supra note 130; Sherman Elias & George J. Annas, Somatic and Germline Therapy, in Gene Mapping: using LAW and Ethics as Guides (George J. Annas & Sherman Elias eds., 1992); James, D. Watson, The Human Genome Project: Past, Present, and Future, 248 Science 44 (1990)Google Scholar.

181 See, e.g., Beernink & Ericsson, supra note 50, at 493-95; Corson et al., supra note 49, at 756; W. Paul, Dmowski et al., Use of Albumin Gradients for X and Y Sperm Separation and Clinical Experience with Male Sex Preselection, 31 Fertility & Sterility 52 (1979)Google Scholar.

182 Other examples of medical reasons for selecting a trait (or rejecting one as the case may be) range from addressing the potential for allergies, heart conditions, deformities, and retardation to manifestations of diseases like hemophilia, Down's Syndrome or Tay-Sachs disease, or such qualities as an above-average immune defense, or even a decreased susceptibility to cancer.

183 Examples of non-medical bases for selection might include such things as height, skin color, hair color, and sex to more multi-genic traits like analytical ability, athletic aptitude, and musical prowess.

184 These labels are necessarily imprecise; a parent's desire to prevent disease or deformity surely reflects a “preference” at the same time it is medical in Nature, and the term “medical” is itself something of a social, rather than a purely objective, construct. Alternatives to this shorthand reference, however, seem more unwieldy.

185 See generally Karjala, supra note 5, at 160; Abbey, Lippman, Prenatal Genetic Testing and Screening: Constructing Needs and Reinforcing Inequities, 17 Am. J.L. & Med . 15 (1991)Google Scholar.

186 Note that an Atlanta clinic recently achieved the first successful direct sperm injection, in which a single egg is fertilized by a single sperm. Results of New Fertilization Method Due in October, Wash. Post, Aug. 21, 1993, at Al.

187 See supra, part II.B.2.

188 w h a t constitutes “harm” is, admittedly, debatable. See, e.g. . Judith P. Swazey, Those Who Forget Their History: Lessons from the Recent Past for the Human Genome Quest, in Gene Mapping: using law and Ethics as Guides 45, 46-47 (George J. Annas & Sherman Elias eds., 1992) (“[D]efinitions of health, disease, and illness, and the kinds of medicine we practice are not entirely objective, rational, value-free, and culturally neutral, [being shaped] by the culture of a society and in turn [shaping] the values, attitudes, and beliefs of the people living in a particular society during a given historical period.“). See also Lippman, supra note 184, at 24. The negation of existing structures, without more, however, probably comes as close as possible to a definition upon which most could agree.

189 All else will not be equal, of course, if the very process of screening will risk harm to all sperm, eggs, or embryos, such as might be the case, for instance, if a sperm separation “swim up” method so taxes even the desired sperm that the subsequent conceptus is more likely than a naturally conceived conceptus to manifest a particular harm.

190 Note that the Standard applies even as various new procedures develop, and as others become more or less risky. This flexible approach more easily accommodates changes in technology than does, for example, a rigid trimester approach in the abortion context. See, e.g.. Roe v. Wade, 410 U.S. 113 (1973).

191 But see supra, note 182, noting that using certain risky TSTs for some medical reasons may yield a net benefit nonetheless, by avoiding a greater genetic harm.

192 Thus, for example, the hierarchies established for each Variable enable the conclusion that postconceptive, intrusive procedures used for medical reasons (Context B) should be less regulated than postconceptive, intrusive procedures used to vindicate a parental preference (Context A).

193 There is no relevant vertical axis, and relationships are distributed so as more effectively to illustrate the absence of certain information, as discussed immediately below.

194 Note that if one elected to view these relationships in three dimensions, each planar surface would link four Contexts sharing a single variation of each Variable. Thus: CDGH = Preconceptive; ABEF = Postconceptive; ABCD = Intrusive; FHEG = Screening; CAEG = Preference; and DBFH = Medical.

195 Of these nineteen, eleven are clear via pairing with one of the two endpoints: A or H. Eight additional pairings may be resolved when only one Variable differs between the pair.

196 These are: BC; FD; FC; EB; ED; EC; GB; GD; and GF. EB, for example, is a two variant pairing, which attempts to determine the relative harms apportioned by a postconceptive screening procedure for reasons of parental preference, on the one hand, and a postconceptive, intrusive procedure for a medical reason, on the other.