A Return to Eugenics

1. A Return to Eugenics?

3. Parent Duties If parents may have a moral duty to act, should the law recognize a legal duty? Civil duty? Wrongful life c/a against parents? Criminal/public health enforcement legally mandated testing, sterilization or abortion?

4. Wrongful Life ? parents? 1. Not as defensible as MD�s duty to tell parents duty to inform still lets parents use own values (respects parental liberty) duty to inform allows for plurality of views whereas c/a against parents would let jury set a single binding community norm bad idea-- not sufficient consensus about values that �good� parents should have. Would be set precedent for state deciding which children should be born (back to Buck v Bell??) or even inconsistent, conflicting norms!or even inconsistent, conflicting norms!

5. Wrongful life - 2 2. Even if a consensus about moral duty, tort c/a is not an ideal way to enforce it. parents will rarely sue themselves, so no real pressure placed by recognizing c/a courts already dislike wrongful so would be available in only three states courts dislike suits by child against mom for prenatal acts (driving auto, taking meds) likely to be same here in the 3 states CTS resurrect parental immunity in pr enatal setting (2 of 3; better reasoned and more recent )CTS resurrect parental immunity in pr enatal setting (2 of 3; better reasoned and more recent )

6. Wrongful life - 3 3. Possible constitutional problems c/a would limit mother�s choices about what to do with own body Do interests of child trump mother�s rights? Courts split re forced ceasarean sections, etc. Some state legislatures authorize detention of crack mothers. NB: those cases involve infliction of �avoidable� harm by mother; not decision to give birth. WRAP UP: NOT PROMISING ROUTE unlikely to see this developWRAP UP: NOT PROMISING ROUTE unlikely to see this develop

7. Mandatory sterilization? Avoids some of the problems of civil enforcement. More effective at preventing births? No need to calculate �harm� of life. No need to resuscitate wrongful life theory. Still same moral/policy concerns infringes on parental liberty/pluralism precedent for state deciding who should live

8. Constitutional? Buck v. Bell (1927), J. Holmes Carrie Buck, 19, in home for �feeble-minded� has one �illegitimate feeble-minded� child state statute allows superintendent to seek sterilization would allow discharge into society has procedural protections (said Holmes)

9. Buck v. Bell Procedural due process violation? NO Substantively unconstitutional? NO �would be strange if [state] could not call upon those who already sap the strength of the State� for a sacrifice like this. Often not perceived as sacrifice by patients �prevent our being swamped with incompetence�; prevent future crime �Three generations of imbeciles are enough� NOTE: pre-substantive due process emergence not using a csi test.NOTE: pre-substantive due process emergence not using a csi test.

10. Still good law? Preceded modern �substantive due process� & compelling state interest rqmt Eroded by Skinner v. Oklahoma (1942)? Mandatory sterilization of certain repeat offenders = struck down but may be narrow restriction on state power EP violation: selection of crimes not defensible What if state targeted its efforts using scientific data and reliable genetic tests??? Not clear

11. Skinner v. Oklahoma On one hand, recognizes procreation as �one of the basic civil rights�, a �basic liberty� imposed �strict scrutiny� test (EP) to avoid �invidious discrimination against group or types of individuals� acknowledges risk that sterilization could be misused �in evil or reckless hands� eP case, but viewed as beginning of SDP line of cases for reproductive rights eP case, but viewed as beginning of SDP line of cases for reproductive rights

12. Skinner - 2 On other hand, does not overrule Buck. Leaves open possibility that carefully designed sterilization program wd survive. Concurrers (Stone) statute would be okay if state individually ascertained that convict�s criminal tendencies were inheritable. (Jackson) less sanguine but points out �uncertainty as to transmissibility�

13. What must a state show now? 1. P really has the trait at issue! Carrie Buck may not have been retarded had done well in school (as did her daughter) apparently was committed bc immoral had illegitimate kid as teenager had been raped by nephew of foster parents they committed her her lawyer was member of board; called no witnesses; just a friendly test case to protect home? TODAY: BETTER TEST but still need to explore unsubstantiated assumptions and be sure not a �false positive� [63-64]TODAY: BETTER TEST but still need to explore unsubstantiated assumptions and be sure not a �false positive� [63-64]

14. State burden 2. Trait is really inheritable or some other reason for sterilization* 3. State has compelling state interest significant burden on state/society not invidious discrimination by majority 4. ?? least restrictive route to accomplish state�s legitimate goals? Use reversible techniques? Certain forms of retardation, like Fragile-X syndrome, are inherited. C 90 NOTE: STATE may also seek to avoid BURDEN OF CARING FOR KIDS even if not retarded; and protection of welfare of those future kids. If so, won�t need to show inheritability. Will these grounds suffice. They routinely do in t. cts. Now.Certain forms of retardation, like Fragile-X syndrome, are inherited. C 90 NOTE: STATE may also seek to avoid BURDEN OF CARING FOR KIDS even if not retarded; and protection of welfare of those future kids. If so, won�t need to show inheritability. Will these grounds suffice. They routinely do in t. cts. Now.

15. Mandatory abortion? Not a realistic fear today Constitutional? Sufficient state interest? Re state interests in avoiding burden: Buck Re protection of best interests of children Courts split re forced ceasarean sections, etc. Some state legislatures authorize detention of crack mothers. NB: those cases involve infliction of �avoidable� harm by mother; not decision to give birth. CONCLUSION: unclear, any more invasive than sterilization??? Worse bc kills fetus? Not a con�l person right now less restrictive alternatives???CONCLUSION: unclear, any more invasive than sterilization??? Worse bc kills fetus? Not a con�l person right now less restrictive alternatives???

16. Mandatory testing? Today: Tay-Sachs screening model more likely than Sickle cell voluntary, not mandatory counseling provided confidential Still, many observers fear community pressure to avoid �defective kids� esp. post-Human Genome Project. Are we heading to a new �eugenics�?

17. Era of geneticization? Increasing capacity to test government funded HGP Legal duty to inform parents Is this new reality creating a social norm favoring �eugenics�? (Clayton, V.I.92) Is that bad? Should we back off? Eliminate wrongful birth c/a? Not fund genetic tests? TRICKY SEMANTICS HERE: Really moving toward new eugenics? Yes and NO HGP does seek cures for genetic disease; implicitly assumes better not to have NOT OBJECTIONABLE BUT knowledge also permits repro decisions that is �eugenics�--true But is that bad? �eugenics� label has powerful connotations-need to resist unthinking reaction Kass says yes: culture of avoiding �defective� kids; neglect those who escape abortion? Ruin self percpetion (2d class); risk society viewing them as less worthy of equal respect? [ADD ASCH] To me, the KEY POINT: vol v. coerced WB/$ for TESTs=ENABLE PARENTS TO DECIDE RE B.I. OKAY as long as we don�t force parent�s choices Shld we respect MD moral choices more??? that means living with some parental choices we dislike [crack babies?? Sex selection; minor disabilities=abort] but may be worth it to preserve a bright line that prevents state from making reproductive choices for us, slide toward mandatory screening, like Buck.TRICKY SEMANTICS HERE: Really moving toward new eugenics? Yes and NO HGP does seek cures for genetic disease; implicitly assumes better not to have NOT OBJECTIONABLE BUT knowledge also permits repro decisions that is �eugenics�--true But is that bad? �eugenics� label has powerful connotations-need to resist unthinking reaction Kass says yes: culture of avoiding �defective� kids; neglect those who escape abortion? Ruin self percpetion (2d class); risk society viewing them as less worthy of equal respect? [ADD ASCH] To me, the KEY POINT: vol v. coerced WB/$ for TESTs=ENABLE PARENTS TO DECIDE RE B.I. OKAY as long as we don�t force parent�s choices Shld we respect MD moral choices more??? that means living with some parental choices we dislike [crack babies?? Sex selection; minor disabilities=abort] but may be worth it to preserve a bright line that prevents state from making reproductive choices for us, slide toward mandatory screening, like Buck.