Constitutional Silence on Reproductive Technologies Raises Legal Questions

Why it matters locally: The ongoing lack of a comprehensive constitutional framework for reproductive technologies could lead to varied legal interpretations and regulations within Kentucky, similar to other states, affecting residents seeking or providing IVF and other advanced reproductive services.

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WASHINGTON – The U.S. Supreme Court has not developed a comprehensive constitutional framework for reproductive technologies, including in vitro fertilization (IVF) and emerging genetic methods. This absence of federal guidance occurs as new reproductive techniques advance and related legal questions arise. Techniques such as in vitro gametogenesis (IVG) and mitochondrial replacement are nearing potential human application. IVG, which creates sperm or eggs from somatic cells, has shown success in animal models but faces legal prohibitions for human use in the U.S. An appropriations rider prevents the Food and Drug Administration (FDA) from reviewing applications for these technologies, effectively blocking their clinical use. Mitochondrial replacement techniques, which combine DNA from three individuals to prevent disease transmission, are authorized in some countries, like the United Kingdom. However, the same U.S. appropriations rider prohibits their use domestically. Despite the widespread use of IVF – with an estimated 96,000 children born through the technology in 2023, representing 2.3% of all U.S. births – the Supreme Court has addressed IVF in only three cases. These rulings did not establish a robust constitutional law for the technology. For instance, a concurrence in the 1989 case *Webster v. Reproductive Health Care* noted IVF was not an issue, and a dissent in *Dobbs v. Jackson Women’s Health* flagged future constitutional questions. In *Astrue v. Capatoex rel. B.N.C.* (2012), the Court ruled that states could exclude children born posthumously through IVF from Social Security survivor benefits under certain state intestacy laws. State courts have decided numerous cases involving reproductive technologies, addressing parentage, embryo disposition, discrimination claims, and torts. These cases often rely on state law, although some have included federal constitutional claims. A few lower federal courts have also addressed federal constitutional issues, such as the 2002 ruling in *J.R. v. Utah*, where a federal district court found aspects of Utah's surrogacy restrictions unconstitutional. Legal scholars who have examined existing Supreme Court precedent for guidance often refer to cases from 1942 (*Skinner v. Oklahoma*), 1965 (*Griswold v. Connecticut*), and 1972 (*Eisenstadt v. Baird*). These cases, which concern contraception and sterilization rather than producing offspring, predate the first U.S. IVF birth in 1981. Reasons for the Supreme Court's limited engagement vary. Some reproductive rights advocates previously expressed concern that pushing for federal constitutional protections might have negatively affected abortion law. Conversely, the fertility care sector's lobbying efforts or political considerations might explain why states have not imposed more restrictions. An example occurred in 2024 when the Alabama Supreme Court ruled that improperly destroyed embryos were considered children under the state's wrongful death statute. Political figures, including then-candidate Donald Trump, distanced themselves from the ruling, and the state legislature enacted a statutory fix. Proponents suggest three potential constitutional approaches for reproductive technologies: traditionalist, equality-focused, and liberationist. * **Traditionalist:** This approach would prioritize reproductive methods with a long history in the U.S., such as artificial insemination, which dates back to 1884. A strict traditionalist view might limit constitutional protection to these long-standing technologies, granting states authority over newer methods, with equal protection laws serving as a marginal check. A broader traditionalist view could extend protection to technologies that enable reproduction with a single male partner, excluding third-party involvement. * **Equality-focused:** This view centers on enabling individuals to reproduce when they cannot otherwise. A narrow interpretation would focus on medical infertility, such as gonadal damage or the inability to produce gametes, potentially protecting those with medical conditions that impede reproduction. A broader interpretation could extend protection to same-sex couples, drawing parallels to rulings like *Obergefell v. Hodges*. * **Liberationist:** This perspective views reproductive technologies not merely as mimicking, but as extending reproductive capabilities. This could include allowing women to reproduce later in life or enabling both partners in same-sex relationships to be genetic parents through technologies like IVG. A more expansive liberationist view could also consider constitutional protections for individuals assigned male at birth to experience pregnancy through advancements like uterus transplants.