Final Report (all chapters)

To recap, the survey data shows a strong preference for adoption over ART treatments
providing only partial genetic relatedness. It appears that in making procreative choices,
biological relatedness is not as important as commonly assumed. On the other end, given the
importance attached to adoption and its roots in the “history and traditions of this country,” one
could argue that adoption should be considered a fundamental right deserving of constitutional
protection. If this were the case, the Supreme Court would likely require any state regulation
limiting access to adoption services to pass a strict scrutiny test, a test not many regulations are
likely to survive. Instead, every state has laws regulating key aspects of the adoption process,
including data collection, payments, and parentage. 55
The data also suggests a broader point: Procreative decisions are based on several
considerations, only one of which is genetic relatedness. Other values – such as the importance
of being parents and raising children, the experience associated with pregnancy and childbirth,
and procreation in the context of a familial unit – are central aspects of a procreative choice, and
can be as important or more important than genetic relatedness. Perhaps not coincidentally, many
of the Court precedents discussed in this chapter pertain precisely to these aspects. They also
overlap with the considerations identified by the New York State Task Force on Life and the
Law as crucial to any Court ruling pertaining to reproductive medicine. Taken together, these
observations suggest that the Court is very unlikely not only to extend constitutional protection
to technologies of procreative customization, but also to deny fundamental status to several,
more traditional ART treatments.
55
Lori B. Andrews and Nanette Elster, "Adoption, Reproductive Technologies, and Genetic Information," Health
Matrix: Journal of Law-Medicine 8 (1998).
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