198 Children’s Legal Rights Journal [Vol. 37:2 2017]
Legal commentators acknowledge that it is only a matter of time before parents employ
genetic engineering techniques to manipulate the genome of their future offspring130—some even
argue that genetic engineering of children will be mandatory.131 Author Henry Greely, for
example, asserts in his book, The End of Sex, that in the near future all children will be designer
children: “Prospective parents will be told as much as they want to know about the DNA of, say,
100 embryos and the implications of that DNA for the diseases, looks, behaviors and other traits
of the child each of those embryos may become. Then they will be asked to pick one or two to be
transferred into a womb for possible gestation and birth.”132
Greely’s vision of a total “designer child” world may seem implausible. However, in
consideration of the aforementioned social values and technological advances, the possibility that
designer children will occur to some extent is real. As Mehlman notes, “the constitutional right of
parents to rear their children extends even to exposing the children to known health
risks.”133Therefore, in light of the great discretion that parents enjoy in “the care, custody and
control of their children”134 in the American legal system,135 there needs to be a discussion of the
possible negative effects of unregulated “designer children” on those children who will be subjects
of genetic engineering.
Legal scholars and bioethicists warn that the negative consequences for the genetically
modified children include knowing that their future has already largely been decided by their
parent’s choices.136 Another consequence to those children is knowing that they are the recipients
of an advantage available only to the lucky few whose wealthy parents could afford it.137 Other
negative consequences are the uncertainty of their genetic future, and that of their descendants.138
Commentators also note the psychological risk that these children will not feel the unconditional
love of their parents, but instead, feel that the love of their parents is contingent on how successful
130 See id. at 160. The authors note that one of the arguments for the use of genetic engineering is that “these
technologies, while not necessarily desirable, are unstoppable because the market combined with parental desire will
drive scientists and physicians to offer these services to demanding couples.” See also Zaret, supra note 23, at 1808.
131 Conor Friedsersorf, Will Editing Your Baby’s Genes Be Mandatory? ATLANTIC (Apr. 14, 2017),
132 HENRY GREELY, THE END OF SEX AND THE FUTURE OF HUMAN REPRODUCTION 1-2 (Harvard University Press,
134 Troxel v. Granville, 530 U.S. 57, 65 (2000). See also MEHLMAN, supra note 48, at 105-06.
135 MEHLMAN, supra note 48, at 105-06.
136 Annas, Andrews & Isasi, supra note 13, at 161. The authors note that technologies such as the genetic
engineering of embryos and cloning inherently inhibit the resulting child’s right “to an ‘open future.’” Id. (citing
HANS JONAS, PHILOSOPHICAL ESSAYS: FROM ANCIENT CREED TO TECHNOLOGICAL MAN 160 (1974)). See also
Nancy Pham, Choice v. Chance: The Constitutional Case for Regulating Human Germline Genetic Modification, 34
HASTINGS CONST. L. Q. 133-59, 150 (2006). It is worth noting that, some commentators are unpersuaded by this
argument. For example, Michio Kaku expresses skepticism that the availability of technologies capable of
increasing intelligence could lead to inequality, according to him, because not many people would be attracted to the
idea of becoming mathematicians or physicists—as such careers are not very lucrative—and that such technologies
may even lead to a leveling of the playing field caused by economic inequality. MICHIO KAKU, THE FUTURE OF THE
MIND 162-64 (Anchor Books, 2015).
137 See Annas, Andrews & Isasi, supra note 13, at 160-61. See also Reardon, supra note 42, at 173.
138 Pham, supra note 136, at 150.