Eugenics Then and Now: Constitutional Limits on the Use of Reproductive Screening Technologies

Advancements in assisted reproductive technologies ( ARTs ) have allowed prospective parents to exercise unprecedented control over the reproductive process and their progeny. Among ARTs, prenatal screening and diagnosis is a particularly powerful category of tools due to its mass accessibility, non-invasiveness, and availability before conception and during pregnancy. However, increased adoption of these tools also forces parents and societies to confront a broad range of ethical, legal, and personal questions about how genetic information should be used to screen for or preselect the traits of prospective offspring. This Note advocates that based on historical experience, previous court decisions, and modern evolution of reproductive screening technologies, laws that limit use should focus on delineating between medical and nonmedical uses, and in the latter application, articulating the governmental interests in preventing the harm individual biases in non-medical screening may cause in the aggregate. Furthermore, regulatory agencies and professional codes can play important roles in keeping applications of reproductive screening technologies within bounds to avoid a backdoor to eugenics