Transhuman Babies and Human Pariahs 217
destruction of socio-legal systems, and which would provide immediate and total legal protection
to genetically engineered children.
b. Possible Avenues of Implementation
The final issue in the present discussion is the most realistic avenue for implementation;
how could such definition become functional? The specific manner of implementation warrants a
lengthy discussion which falls outside of the scope of this Article. However, the conclusion of this
Article will briefly discuss the pros and cons of the possible manners of implementation.
The optimum approach would be a federal law implementing the definition and any
necessary secondary propositions and relevant moratoria, thus completely settling the issue across
the country and providing total regulation of germline genetic engineering. One problem with this
approach is that in order for the legislation to be precise and effective in a scientific sense, the
scientific community would have to be heavily involved in drafting the law’s language;296
otherwise, there is a risk that politicians pursuing their own agendas would render the definition
dangerous297 or counterproductive.298 Also, as mentioned above, the American government is in
grave a state of dysfunction, making it exceedingly unlikely that a federal law would be enacted.
299 A constitutional amendment would be even more unlikely, if not impossible.300
The current issues facing the United States Legislature would leave three other potential
sources of implementation, (1) the judiciary, (2) the individual state legislatures, and (3) federal or
state regulations. Although inherently unpredictable, the judiciary has the power to adopt the
definition, as noted earlier in this Article. A problem with this approach is that it would be a
reactive, not a proactive approach and it would therefore be unlikely to take place in a timely
fashion.301 The state legislature approach may be the most realistic and timely, especially in states
which are receptive to the technology.302 This approach however, would leave the door open for
serious issues of inequality such as those observed in the fight for marriage equality prior to the
Supreme Court’s ruling in Obergefell v. Hodges,303 and the current fight for fair access to bathroom
facilities for transgender people;304 in other words, it would be particularly dangerous for a
296 For example, as it relates to the scientific consensus at the time about what Homo sapiens-specific psychology is.
297 For example, the bill and definition could be corrupted to include language which would extend human
personhood status to a human embryo, thus endangering abortion rights.
298 See Mike Orcutt, The Unintended Consequences of Congress’s Ban on Designer Babies, MIT TECH. REV. (Aug.
26, 2016), https://www.technologyreview.com/s/602219/the-unintended-consequence-of-congresss-ban-on-
designer-babies/. See also Reardon, supra note 44.
299 See Binder, supra note 198.
300 See Will Short Gorham, Of 11,000 Attempts to Amend the U.S. Constitution, Only 27 Amendments Have Passed,
POLITIFACT (Aug. 30, 2011), http://www.politifact.com/truth-o-meter/statements/2011/aug/30/xavier-becerra/11000-
attempts-amend-us-constitution-only-27-amend/ (noting the extreme difficulty in passing an amendment to the
Constitution, referring to a statement by Representative Xavier Becerra: “We’ve had 11,000 attempts to amend the
Constitution since 1789. Twenty-seven amendments have been passed, 10 of them in one shot with the Bill of
301 See Rivard, supra note 17.
302 California is one example of a state receptive to the technology. See Charles Piller, California Considers Funding
Controversial Research: Editing Genes in Human Embryos, STAT (Feb. 8, 2016),
303 Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
304 Eric Ekholm & Alan Blinder, Federal Transgender Bathroom Access Guidelines Blocked by Judge, N.Y. TIMES
(Aug. 22, 2016), http://www.nytimes.com/2016/08/23/us/transgender-bathroom-access-guidelines-blocked-by-