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Jeffrey Rosen
professor of law at George Washington University, and legal affairs editor of the New Republic


In constitutional politics, one of the key challenges for the 21st Century will be the redefinition of privacy. In particular, courts and legislatures may struggle to adopt old legal doctrines involving privacy and autonomy to new technologies of reproduction and surveillance.

Consider genetic screening and human cloning. Before long, it may be possible for two gay men, using cloning technology, to create a child who is genetically related to both of them. And odd political alliances will result as it becomes increasingly possible to create designer babies using in vitro fertilization, selecting traits such as intelligence, height, and sexual orientation. Libertarians on the left and right who support unfettered choice will battle social conservatives and feminists who insist that the ability of parents to choose their child’s sex or sexual orientation may demean women, or gays and lesbians.

Courts will face strong pressure to constitutionalise both extreme positions - for example extending the right to privacy recognized in Roe v. Wade to include complete reproductive autonomy or insisting that the foetus has constitutional protection from the moment of conception and therefore that any stem cell research or even therapeutic cloning is unconstitutional.

My sense is that courts would be ill advised to enter this debate until a much more stable social consensus has materialized: at the moment, legislatures are in a better position to reflect the rich complexity of social intuitions about how reproductive technology should be regulated. Society should begin debating questions around such issues as technologies of reproduction and surveillance as soon as possible, rather than wait for judges and technologists to spare us from the need to make hard moral and political choices.



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