Lauren R. Roth


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. I argue that the time has come to focus on closing the access gap in this area of reproductive rights in spite of the current political climate. If reproductive 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. This Article shows how the current system of assisted reproduction already distinguishes between the "in" group and the "out" group. 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 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 similarly explores how existing jurisprudence ignores the role of income inequality and broader social concerns when deciding disputes related to PGD. Courts address any negative implications of their decisions for the children of those who are able to afford PGD but fail to address the impact of their decisions on the children of those who cannot afford 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. While few scholars would argue today that reproductive technology is likely to be included among the essential health benefits the ACA requires, if the statute remains intact, it is one more example of the troublesome class distinctions that currently divide this country into "haves" and "have nots." The reverse eugenics of therapeutic PGD privileges wealthy whites above other races and classes, and it exacerbates race and class distinctions.