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States' Regulation of Assisted Reproductive Technologies: What Does the U.S. Constitution Allow?

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Publication Date: July 2009

Publisher(s): Nelson A. Rockefeller Institute of Government

Author(s): Michelle N. Meyer

Funder(s): Rockefeller Institute

Funder(s): Rockefeller Institute

Topic: Population and demographics (Family planning)

Keywords: Procreation; Bioethics; Fertility

Type: Report

Coverage: United States


This paper addresses the extent to which the rights of privacy and reproductive liberty protected by the United States Constitution prevent states from regulating assisted reproductive technologies (ARTs). It concludes that under the best interpretation of the Supreme Court's existing case law, states have ample room to regulate individuals' decisions to procreate, including decisions to use ARTs.

The lack of regulation is not because ARTs have flown under the public's radar. Academics and journalists cite multiple explanations for the lack of regulation despite this potential for overlapping consensus. The cases discussed below highlight two such constraints: regulations must not treat similarly situated individuals dissimilarly, and they must not be arbitrary.