Selective Procreation in Public and Private Law

This Article sets forth a new way to think about the ethics and law of choosing genetic traits in future children. And it applies this framework of offspring to controversies over efforts to select offspring traits including sex, race, intelligence, and deafness using methods ranging from donor selection to embryo screening and gene editing. I adapt the lens of ambivalence that Professor Robert Burt developed in the end-of-life context to illuminate an irreducible tension between the two values at stake in selective procreation. I call these values “acceptance” of the limits found in the natural world and “control” over the limits that nature imposes. The appeal of both resonates as much at life’s beginning as at its end. The resulting ambivalence counsels a complex regime to govern selective procreation that mediates the extremes of compulsion and prohibition in ambiguous and even contradictory ways. This regime would combine legal protections for offspring selection such as public subsidies, insurance mandates, tax breaks, and malpractice actions with measures to rein in that same practice as through sin taxes, counseling requirements, advertising limits, and prenatal “choice architecture.