Academic journal article The William and Mary Bill of Rights Journal

A Cleaner, Crispr Constitution: Germline Editing and Fundamental Rights

Academic journal article The William and Mary Bill of Rights Journal

A Cleaner, Crispr Constitution: Germline Editing and Fundamental Rights

Article excerpt

INTRODUCTION

On August 2, 2017, genetic engineering once again burst into the world. On that date, a team of international researchers published their latest experiment.1 These researchers used CRISPR/Cas9, the newest and most controversial genetic engineering technology, to edit a portion of a human embryo.2 They succeeded in removing a genetic heart disease, known as hypertrophic cardiomyopathy, from the embryo's DNA.3 Not only was this the first time researchers created a genetically modified embryo in the United States, it was the first time researchers successfully edited the DNA of an embryo, ever.4 The experiment had groundbreaking consequences. This breakthrough sheds light not only on a future of cheap and safe genetic engineering, but also a future that morphs and modifies our conception of humanity. Even before CRISPR/Cas9, scientists and public figures warned against allowing such technology in fear of dystopia and the advent of "designer babies."5 CRISPR/Cas9 has made that prospect a foreseeable reality.

CRISPR/Cas9 capabilities in gene editing deserve a constitutional conversation. Because of the novel nature of this technology, scholarship concerning the legal implications and constitutional dimensions of gene editing is scarce.6 Now that the technology is at the doorstep of the United States, courts and legal scholars should expand the dialogue. We should take more seriously the arguments that were once resigned to science fiction novels. Although it may be some years before the safety and reliability issues are seamed over, an ex ante discussion is invaluable for such controversial treatments. There is good reason to believe the federal or state governments would-at least initially-prohibit CRISPR/Cas9 germline modification. As of 2015, twenty-nine countries, including Britain, Canada, Sweden, France, and Australia, have banned gene editing in embryos.7 So far, the U.S. state and federal governments have not explicitly addressed the issue.8 A revolutionary treatment, capable of removing genetic diseases,9 could be just years away from mainstream incubation.10 So, cue the legal inquiries: Does the right to privacy include the editing of offspring DNA? Does it violate the future child's autonomy? Does the individual at least retain a substantive due process right to access medicine from private sources?

This Note argues that the individual does not retain a fundamental right in using CRISPR/Cas9 germline editing to remove hereditary disease. Although the Supreme Court might recognize some limited "liberty interest" in the practice, germline editing is, regardless of this, subject to legislative regulation. We can foresee, one day, an individual claiming a right to remove a genetic disease from her child via CRISPR/Cas9. If she already enjoys the right to terminate the pregnancy, why should she not have the same right in choosing its genetic disposition? The Court would have several avenues from which to analyze her claim: the right to privacy, broader rights to individual or minor autonomy, the right to access medicine, self-definition, etc. This Note will analyze the strengths and weaknesses of those and similar claims through various constitutional doctrines. Because gene editing through CRISPR/Cas9 creates an unfamiliar factual background, the Court might use its precedent more as reflections of values rather than concrete rules. Ultimately, the Court would find the state's interest in medical regulation worthy of protection against the individual's claim to privacy. Citing the state's interest in protecting public health and welfare, the Court would uphold a legislative prohibition on the practice. Concerns with CRISPR/Cas9 do not stop at safety issues. A myriad of ethical issues engulf the procedure, including fears of eugenics and entrenching social disparities. Those concerns, the Court would hold, are sufficient to trump an individual's autonomy interest in using CRISPR/Cas9. Moreover, legislatures are in the best position to arbitrate over such unresolved social and ethical problems. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.