Straightening your heir: on the constitutionality of regulating the use of preimplantation technologies to select preembryos or modify the genetic profile thereof based on expected sexual orientation.

(146.) See Keel v. Banach, 624 So.2d 1022 (Ala. 1993); Univ. of Ariz. Health Scis. Ctr. v. Super. Ct., 667 P.2d 1294 (Ariz. 1983); Turpin v. Sortini, 643 P.2d 954 (Cal. 1982); Linger v. Eisenbaum, 764 P.2d 1202 (Colo. 1988); Haymon v. Wilkerson, 535 A.2d 880 (D.C. 1987); Garrison v. Med. Ctr. of Del., Inc., 581 A.2d 288 (Del. 1989); Kush v. Lloyd, 616 So.2d 415 (Fla. 1992); Arche v. U.S. Dep't of Army, 798 P.2d 477 (Kan. 1990); Reed v. Campagnolo, 630 A.2d 1145 (Md. 1993); Viccaro v. Milunskry, 551 N.E.2d 8 (Mass. 1990); Greco v. United States, 893 P.2d 345 (Nev. 1995); Smith v. Cote, 513 A.2d 341 (N.H. 1986); Procanik v. Cillo, 478 A.2d 755 (N.J. 1984); Becker v. Schwartz, 386 N.E.2d 807 (N.Y. 1978); Owens v. Foote, 773 S.W.2d 911 (Tenn. 1989); Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975); Naccash v. Burger, 290 S.E.2d 825 (Va. 1982); Harbeson v. Parke-Davis, Inc., 656 P.2d 483 (Wash. 1983); James G. v. Caserta, 332 S.E.2d 872 (W. Va. 1985); Dumer v. St. Michael's Hosp., 233 N.W.2d 372 (Wis. 1975); Goldberg v. Ruskin, 471 N.E.2d 530 (Ill. 1984); Flanagan v. Williams, 623 N.E.2d 185 (Ohio Ct. App. 1993), abrogated on other grounds, Simmerer v. Dabbas, 733 N.E.2d 1169, 1174 (Ohio 2000). But see Atlanta Obstetrics & Gynecology Group v. Abelson, 398 S.E.2d 557 (Ga. 1990); Vanvooren v. Astin, 111 P.3d 125, 127-28 (Idaho 2005); Taylor v. Kurapati, 600 N.W.2d 670, 691 (Mich. Ct. App. 1999); Molloy v. Meier, 679 N.W.2d 711, 723 (Minn. 2004); Azzolino v. Dingfelder, 337 S.E.2d 528 (N.C. 1985). In a "wrongful birth" action, the parent alleges that negligence in prenatal treatment or counseling deprived them of the opportunity to decide whether to avoid conception or terminate pregnancy based on the likelihood that the child would be born mentally or physically impaired. See Procanik, 478 A.2d at 760. At least one state has recognized an action for wrongful conception, though not for wrongful birth. See Molloy, 679 N.W.2d at 723.

(147.) See, e.g., Surveys, supra note 109.

(148.) See id. (finding that while "[m]ost Americans ... believe it would be wrong to use genetic testing to select the sex or other non-health related, genetic characteristics of a child," "70% of survey respondents also are 'concerned about government regulators invading private reproductive decisions,'" and "only 38% support the idea of the government regulating PGD based on ethics and morality").

(149.) See, e.g., Stein, supra note 7. Indeed, the relative absence of regulation of selection technology is common to alternative reproductive technologies generally. Malinowski & Rao, supra note 104, at 60. Contrast this absence of regulation with the long history of regulation found in Washington v. Glucksberg, 521 U.S. 702, 723 (1997) (noting the "consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults").

(150.) See ROBERTSON, supra note 50, at 166 ("[I]f not determinative of the decision whether to reproduce, prenatal enhancement would not fall within the core interests protected by procreative liberty"); see also discussion supra pp. 355-57. Professor Robertson cautions, though, that "[a]t a certain point ... a practice such as ... enhancement ... of offspring may be so far removed from even pluralistic notions of reproductive meaning that they leave the realm of protected reproductive choice." ROBERTSON, supra note 50, at 41.

(151.) See ROBERTSON, supra note 50, at 166.

(152.) See John Harris, Rights and Reproductive Choice, in THE FUTURE OF HUMAN REPRODUCTION, supra note 21, at 5, 23 (John Harris & Soren Holm eds. 1998) ("We should remember that the traditional way of producing children, namely by selecting marriage (or less formally selected procreational) partner, is very often governed by prejudices or preferences, not only for a particular sort of partner, but for the particular sort of child that mating with that partner will produce."). Recall that, while the Court addressed only marriage in its due process analysis, the anti-miscegenation statutes struck down in Loving v. Virginia, 388 U.S. 1 (1967), invaded the protected sphere of privacy just as surely in its procreative aspect as in its purely associational aspect. See Katrina C. Rose, The Gay Gene: The Key to Dismantling Laws Which Criminalize Consensual Sexual Activity or the Precursor to a New Wave of Good Ol' All-American Eugenics?, 3 J.L. & SOC. CHALLENGES 57, 76-78 (1999) (explaining that many cases upholding such statutes expressed concern for the "genetic implication of allowing different races to marry one another").

(153.) See discussion supra pp. 355-57.

(154.) See SILVER, supra note 1, at 347-48 ("Almost certainly, at some point, a combination of scientific knowledge, technology, reduced risks, increased benefits, and societal acquiescence will cross a threshold, allowing human genetic engineering to proceed" (emphasis added)).

(155.) Cf. Lawrence v. Texas, 539 U.S. 558, 566-67 (2003) (stating that Bowers Court mischaracterized interest at issue reflecting its "failure to appreciate the extent of the liberty at stake"), overruling Bowers v. Hardwick, 478 U.S. 186 (1986) (characterizing interest as one long subject to state prohibition).

(156.) E.g., Troxel v. Granville, 530 U.S. 57, 65 (2000) ("The liberty interest at issue in this case--the interest of parents in the care, custody, and control of their children--is perhaps the oldest of the fundamental liberty interests recognized by this Court.").

(157.) See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 848 (1992) ("Neither the Bill of Rights nor the specific practices of States at the time of adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.").

(158.) Cf. ROBERTSON, supra note 50, at 153 ("[I]f the claim is that positive selection actions are not part of protected procreative liberty because they will ultimately harm offspring, the argument confuses the existence of a presumptive right to control offspring traits with whether the effects of control are so harmful that such a right can be justly limited.").

(159.) See Carey v. Population Servs. Int'l, 431 U.S. 678, 686 (1977) (citing Roe v. Wade, 410 U.S. 113, 155-56 (1973)) (applying strict scrutiny for regulation of contraceptives); see also Casey, 505 U.S. at 852 (stating that the Court had "no doubt as to the correctness" of Griswold and Carey).

(160.) Gonzales v. Carhart, 127 S. Ct. 1610, 1633 (2007). But see id. at 1641 (Ginsburg, J., dissenting) (pointing out that "[i]nstead of the heightened scrutiny we have previously applied, the Court determines that a 'rational' ground is enough to uphold the Act").

(161.) Casey, 505 U.S. at 846.

(162.) Carhart, 127 S. Ct. at 1633 (majority opinion).

(163.) See Casey, 505 U.S. at 932 (Blackmun, J., concurring and dissenting).

(164.) See generally SILVER, supra note 15, at 43-44, 58-62 (describing this process); SUSAN TUCKER BLACKBURN & DONNA LEE LOPER, MATERNAL, FETAL, AND NEONATAL PHYSIOLOGY: A CLINICAL PERSPECTIVE 40-45 (1992) (same).

(165.) See Gwendolyn Prothro, RU 486 Examined: Impact of a New Technology on an Old Contoversy, 30 U. MICH. J.L. REFORM 715, 719 (1997) (indicating that the Court has not addressed this "'grey' period"). Prothro argues for a "unified continuum approach to reproductive control." Id. at 741. This note, however, presumes that the Court will maintain a bright line between the two established levels of scrutiny mirroring that drawn, albeit for other reasons, at viability. See, e.g., Casey, 505 U.S. at 846 (plurality opinion) (addressing permissibility of state regulations before and after viability).

(166.) Indeed, even fertilization is a process rather than a single moment. See Prothro, supra note 165, at 717.

(167.) See Carhart, 127 S. Ct. at 1633. Specifically, the Court stated, "Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including the life of the unborn." Id. (emphasis added). In fact, the Court repeatedly stressed the availability of a substitute procedure for previability abortions and its relevance to the Court's decision that the legislation did not constitute an undue burden. Id. at 1637-38. However, neither hypothetical ban addressed in this note bars conception either conventionally or through IVF, and so very few individuals would be entirely left without procreational options.

(168.) 505 U.S. at 874 (citing Hodgson v. Minnesota, 497 U.S. 417, 458-59 (1990) (O'Connor, J., concurring); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 519-20 (1990); Webster v. Reprod. Health Servs., 492 U.S. 490, 530 (1989) (O'Connor, J., concurring); Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 828 (1986) (O'Connor, J., dissenting); Simopoulos v. Virginia, 462 U.S. 506, 520 (1983) (O'Connor, J., concurring); Planned Parenthood Ass'n of Kan. City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 505 (1983) (O'Connor, J., concurring and dissenting); Ohio v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 464 (1983) (O'Connor, J., dissenting); Bellotti v. Baird, 428 U.S. 132, 147 (1976)).

(169.) Id. at 877 (emphasis added).

(170.) Indeed, the vast majority of prospective parents still do not conceive through IVF, except as a last resort. See STOCK, supra note 15, at 54.

(171.) 505 U.S. at 894.

(172.) Id.