Playing God: The Constitutionality of Genetic Enhancement

By Scott Lee

             The rise of gene therapy technologies and the human genome project has made the idea of playing God feasible. The ability to manipulate an organism’s genes using biotechnology has opened up countless doors for medical science, such as using gene therapy to treat existing diseases. But when it comes to making genetic enhancements beyond what is ‘natural’ to the human body, a host of ethical and constitutional issues come to the fore. Suppose two parents opt to genetically enhance their child before birth to affect her physical traits like beauty, personality characteristics like charisma, or mental capabilities such as creativity and memory. Generally, the law has tried to preserve parents’ reproductive rights, but this may change in the near future as society continues to chart new and murky legal territories. Would the US Constitution presumptively protect parents’ right to genetic enhancement?

            Proponents of genetic enhancement, also known as pre-implantation genetic screening (‘PGS’), tend to justify their opinion on two main philosophical grounds: privacy rights (specifically, the right of parents to bear and beget children) and intangible property rights.

            First, PGS proponents argue that the right to genetically enhance one’s children is intimately bound up in constitutional privacy rights. In the Supreme Court case Griswold v. Connecticut (1965), the Supreme Court ruled that the Constitution implied a right to privacy protected from government intrusion. In Eistenstadt v. Baird (1972), the court reasoned privacy meant “unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Those who support the right to genetic enhancement ground their argument in the well-established right of privacy. However, the umbrella of procreation rights should not be extended so far as to include genetic enhancement of children because this right to bear or beget a child does not necessarily mean the right to bear or beget a beautiful or talented child. The line must be drawn at the specific right to PGS, since denial of access does not unfairly burden couples that seek to select their children’s traits.

            PGS proponents then locate parents’ right to PGS in property rights. DNA is a form of genetic property analogous to intellectual property, and thus the government, the argument goes, has no business regulating and controlling private property. But this line of reasoning raises the question of who is actually entitled possess the property in question. PGS proponents will say that embryos are genetic property derived from the parents, and thus parents should have the ultimate say in genetic enhancement. However, any decision-making authority rests with the child herself. Children—not their parents—are entitled to possession of genetic property. Parents have no right to alter the bodily integrity of their child, since it could conceivably be against the child’s wishes. By uniquely tailoring a child to receive a result, PGS has the potential to unfairly narrow a child’s future.

            If genetic enhancement could be considered a fundamental liberty, its existence would be protected by a test of strict judicial scrutiny. The court in Roe v. Wade (1973) has held that where fundamental rights such as procreation are implicated, regulation limiting those rights require a “compelling state interest”. What, then, are the compelling state interests justifying the limitation of this putative fundamental right?

            The first compelling state interest that the government must protect lies in the realm children’s autonomy and welfare. The genetic enhancement debate can be recast as a clash between parental autonomy and the child’s potential autonomy. When a parent genetically engineers his child for an intended result, he closes off the child’s right to an open future and effectively defines the child as a vehicle to fulfill the parents’ own hopes and dreams, and not her own. This unfairly infringes on the right of the child to determine her own path in life. Imagine for a moment that a mother and father genetically engineered their daughter to possess virtuosic piano abilities. This is well and good assuming the daughter’s aspirations end up as one-in-the-same as her parents’. But if not, then genetic engineering has the potential to unfairly direct the child’s future in a manner that is inconsistent with her own wishes while fulfilling only those of the parents.

            The government also has an interest in ensuring the psychological welfare of children. Psychological welfare is implicated by the child’s self-knowledge that she was designed and manufactured like a commodity, rather than produced naturally. This thinking is clearly detrimental to personal self-esteem and a stable parent-child relationship. Even worse would be the realization by non-enhanced children that their inferior genes might render them comparably subpar. It would be unconscionable for the government to allow the creation of a second-class tier of children, and there exists a compelling state interest in protecting children’s personal autonomy and psychological welfare.

            The second compelling governmental interest at stake: equal opportunity and protection. The concept of equal socioeconomic opportunity is deeply ingrained into the American psyche. The specter of genetic enhancement, however, will serve to undermine this core constitutional principle. In the words of Justice Harlan’s dissent in Plessy v. Ferguson (1896) (the infamous ruling upholding the “separate but equal” doctrine), our Constitution “neither knows nor tolerates classes among citizens.” Genetic enhancement poses a great threat to equal opportunity because it may generate a genetic aristocracy that would eviscerate the principle of equal opportunity. Currently, growth hormone technology reportedly costs approximately $14,000 per year, so genetic enhancement techniques can be quite costly. This renders PGS unavailable to the majority of the population, while making it the exclusive domain of the wealthy and elite. Given the obvious social advantages of genetic manipulation, it is highly likely that those with the available means would abuse this privilege of manipulating germ lines and created social advantages inherited by succeeding generations. Imagine a political system dominated by a genetic aristocracy, genobility if you will, that controls society’s wealth, privilege, and power. Over time, the chasm between genetically enhanced versus non-enhanced citizens would continue to grow with no end in sight.

            Genetic enhancement would also have specific implications with respect to equal protection, a concept derived from the Fourteenth Amendment’s provision for equal protection of the laws. After all, the guarantees of equal protection might extend to pre-embryos, or embryos outside the womb. Initially, these pre-embryos undergo genetic enhancement procedures long before viability and are then implanted into the mother’s uterus. In Davis v. Davis (1992), the Court accorded pre-embryos a status of “special respect,” a legal status somewhere in between the full rights of a person and a piece of property or other human tissue. If the interests of each pre-embryo can be weighed against another, then the government is legally prohibited from treating one pre-embryo differently than another. Courts have generally held that it is illegal to discriminate on the basis of immutable genetic traits such as race and gender, and that these categories are suspect classifications in equal protection claims. Given that the purpose of PGS is for parents to choose the most preferable pre-embryo for implantation, the process becomes tantamount to discrimination among pre-embryos on the basis of immutable genetic traits alone. This clearly offends the Constitution’s equal protection guarantee.

            Despite claims to the contrary, no fundamental right to genetically enhance one’s children exists by virtue of privacy or property claims; and even in a world where such a fundamental liberty existed, there are multiple compelling state interests that should impede the right of citizens to execute this liberty. Ultimately, we see that the right to “play God” via genetic enhancement is morally questionable, and at worst, anathema to the precepts of equality and fairness espoused by spirit and form of the United States Constitution.