Selecting against Difference: Assisted Reproduction, Disability and Regulation
![handle is hein.journals/flsulr30 and id is 433 raw text is: SELECTING AGAINST DIFFERENCE: ASSISTED
REPRODUCTION, DISABILITY AND REGULATION
SUZANNE HOLLAND*
I. THE PROBLEM AT HAND .................................................................................... 401
If. THE ASSISTED REPRODUCTION TECHNOLOGIES INDUSTRY (ARTs) ................... 403
Ill. HuMAN FLOURISHING, DISABILITY AND REGULATION ....................................... 405
IV. PROBLEMS AND POSSIBILITIES ........................................................................... 407
V . C ONCLUSION ........................................................................................................ 409
I. THE PROBLEM AT HAND
In 1993, Martha Field suggested a standard for parental discre-
tion in cases of abortion and in cases concerning what she referred to
as handicapped newborns.1 She argued against parental discretion
to control the fate of a handicapped newborn when that fate involves
ending the newborn's life. Similarly, on the grounds of equal protec-
tion from discrimination, Field insisted that whatever the moment
at which a right to life begins for children who do not have handicap,
the same stage of development defines the right to life of children
who do have handicap . . . [and that] [tihis antidiscrimination ap-
proach applies not only after birth, but even before.'2 In other words,
on the basis of equal protection from discrimination, we ought not
kill newborns with handicaps; nor should we deprive them of the
right to be born, whenever that right obtains to other fetuses.
Professor Field's provocative analysis opens a window into a ques-
tion that we have more reason to be concerned about than we did
nine years ago when her article appeared: the issue of prenatal test-
ing for genetic selection and identification. What of the pre-
implantation embryo that is found to be defective? What consti-
tutes an identifiable defect in the realm of prenatal diagnosis that
could subsequently result in a handicapped newborn? The answer is
rather straightforward in one sense: some chromosomal mutations
are readily identifiable and are clearly linked to genetic conditions
such as trisomy, hemophilia, Cystic Fibrosis, Tay-Sachs disease,
Huntington's disease, and others. Some forms of deafness, blindness,
intersexuality, and other conditions less readily identifiable by the
* Associate Professor of Religious & Social Ethics and Chair of the Department of
Religion at University of Puget Sound in Tacoma, Washington. This Article was originally
presented at the Florida State University College of Law Conference on Genetics and Dis-
ability in March, 2002, and was intended to be a response to Professor Martha Field. I
thank my hosts at Florida State for the opportunity to write on such an important issue.
1. Martha A. Field, Killing the Handicapped-Before and After Birth, 16 HARV.
WOMEN'S L.J. 79 (1993). Recognizing that disability is a preferred term for persons with
impairments, Field uses the term handicapped in part because it is the case that in the
newborn context the more degrading term is the norm. Id. at 79 n.1.
2. Id. at 132.](ViewImageLocal?handle=hein.journals/flsulr30&div=27&collection=&method=preview&ext=.png&size=3)
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Selecting against Difference: Assisted Reproduction, Disability and Regulation
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