Kimberly Mutcherson, “Making Mommies: Law, Pre-Implantation Genetic Diagnosis, and the Complications of Pre-Motherhood”

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The abstract:

The article focuses on pre-implantation genetic diagnosis (“PGD”), a technology that allows health care providers and potential parents to screen embryos for a range of characteristics prior to implanting them in a woman’s uterus. Many potential parents use the technology to screen out life-threatening diseases, but many have expressed concerns about the technology’s potential use to screen for benign characteristics such as sex. Recognizing the potential for future regulation, this article focuses on three major topics 1) the potential for legal regulation of pre-implantation genetic diagnosis; 2) the relationship between such future regulation and the existing legal landscape attendant to parenting, procreation, and pregnancy; 3) and the specific consequences for women of legal incursion into PGD decision-making.

The article begins by describing the medical landscape relevant to modern pregnancies in the United States. I then discuss the myriad ways in which existing law impacts procreative and parental decision-making and the ways in which the public nature of procreation and pregnancy make it a time ripe for regulation that is deeper and more intimate than is often the case when the law regulates non-pregnant bodies. The article describes motherhood, unlike fatherhood, as deeply contested territory in which many women struggle to conform to their own definitions of good motherhood and avoid the dreaded label of bad mother. It also describes how the law participates in a process of naming some women as bad mothers and questioning and at times denying their right to parent. Ultimately, this portion of the article emphasizes the disparate gender impact of much reproductive regulation and focuses on the vagaries of restrictive abortion regulation to highlight the link between how states have chosen to regulate abortion and future attempts to regulate PGD.

In the next section, the article imagines and contemplates the constitutionality of future state regulation of PGD, specifically a potential ban on the technology or limiting its use to disease prevention. I conclude that some forms of regulation would likely pass constitutional muster. Finally, the article imagines the consequences of future PGD legislation for women and explains how many legislative choices, including bans or limitations on the use of PGD, will negatively impact many women in part by continuing attempts to delineate categories of good and bad motherhood. The article concludes that regulation of PGD is an idea that should not yet be put into practice.

Downloadable here.

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