The Future of Family Planning Is Here. Is the Constitution Ready?

We are on the cusp of some revolutionary new reproductive technologies, and yet the Supreme Court has been silent on how to think about what the federal Constitution might have to say about the last wave of technologies dating back to the early 1980s.

Questions about the propriety of destroying embryos, whether women can lawfully agree to sell their reproductive labor as surrogates, gene editing, radically new forms of family formation, as well as questions of dignity, access, and equality, cut to the quick of what kind of country we are. To the extent that we view the federal Constitution as the ultimate repository of those values, the current silence on what the Constitution means feels deafening.

So, why the silence? Is it good or bad? What would a bold constitutionalizing project look like for this space?

Consider in vitro gametogenesis (IVG) — in which one can take skin or other somatic cells, derive induced pluripotent stem cells, and direct them to become sperm or eggs that could be used for reproduction — as one of the cutting-edge reproductive technologies we may soon see. Indeed, the technology can likely enable cross-sex gametes — sperm from women and eggs from men — enabling both partners of same-sex couples to be equal genetic contributors to reproducing, or potentially for a single individual to contribute sperm and egg to the same child. IVG has been successfully used in animal models, albeit with significant rates of failure and embryo destruction. Even if we are at some point ready for use in humans in the U.S., that would not be lawful under current law, in part because of an appropriations rider that prohibits the FDA from considering an application to use it.

Or, consider mitochondrial replacement techniques (MRT), currently authorized for limited use in the U.K. but, by dint of the same appropriations rider, prohibited in the U.S. In lay terms, it involves combining one woman’s nuclear DNA with another’s mitochondrial DNA and insemination with male sperm, with a goal of avoiding transmitting mitochondrial diseases while retaining genetic relations.

What does the federal Constitution say about the permissible use of these reproductive technologies? Can Congress just block the FDA from reviewing them altogether, thereby blocking a necessary step for their entry into clinical use? What does the Constitution mean as to more “traditional” (if you will pardon the seeming contradiction in terms) reproductive technologies, such as in vitro fertilization (IVF), artificial insemination, or surrogacy?

Your guess is as good as mine. IVF appears in only three U.S. Supreme Court decisions in history, despite the fact that an estimated 96,000 children were born using the technology in 2023, accounting for 2.3 percent of all U.S. births. None of the opinions really develop the constitutional law. A concurrence in Webster v. Reproductive Health Services notes that IVF is not at issue in the case; a dissent in Dobbs v. Jackson Women’s Health flags that future constitutional issues may arise; and in Astrue v. Capato ex rel. B.N.C., a unanimous Court holds that under rational basis review, a state may exclude from Social Security survivor benefits children posthumously born through IVF when the state’s intestacy law would block them from inheriting.

This small presence in the U.S. Supreme Court’s opinions is in stark contrast to the numerous reproductive technology issues that have been decided by the state courts, dealing with issues such as parentage of children born through surrogacy, embryo disposition disputes, discrimination claims against providers of these services, torts for reproductive wrongdoing, etc.

What gives?

One simple answer would be that these state court decisions largely turn on state law and thus evade U.S. Supreme Court review. It is true that the cases primarily turn on state law, but the litigation sometimes features claims of violations of federal constitutional law, even if they are not central to the opinions rendered. And some lower federal courts, not many, have spoken to federal constitutional law issues in this space; for example, in 2002’s J.R. v. Utah, a federal district court found that aspects of Utah’s restrictions on the enforcement of surrogacy agreements were unconstitutional.

The few courts and scholars (including this one) that have weighed in on what existing federal constitutional Supreme Court cases might say have tended to anchor the analysis on the Supreme Court’s now upended abortion jurisprudence, and three cases from 1942 (Skinner v. Oklahoma), 1965 (Griswold v. Connecticut), and 1972 (Eisenstadt v. Baird), respectively. However, there has been almost no relevant discussion by the Supreme Court in more than 50 years. The first IVF birth in the U.S. happened in 1981, almost a decade after the last of these cases, making them poor guides. This trio of cases is about contraception and sterilization, not producing offspring.

So what explains the lack of constitutional law in this space? One can only speculate. On the left, before the Court overturned Roe v. Wade, some reproductive rights advocates might have been wary that pushing for federal constitutional protections for reproductive technology use might have produced unfavorable constitutional law on abortion. Today, they may be worried that resounding losses in reproductive technology rights claims will embolden states to restrict them more.

On the flipside, what explains the fact that other than parentage determinations, where controversies seem inevitable, states have not attempted many restrictions on reproductive technology use?

Politics may also furnish an answer. It could be that the fertility care sector has been effective at lobbying. Or, it could be that many who were in favor of or tolerant of abortion restrictions, having achieved their goal, might be wary of the political blowback to restricting reproductive technologies. For example, in 2024, the Alabama Supreme Court ruled that improperly destroyed embryos counted as children for the state’s wrongful death of a minor statute. Then-presidential candidate Donald Trump and many in his party tried to distance themselves immediately from the ruling and its potential negative effects on reproductive technology availability — a stinging example of what might happen when one kicks this particular hornet’s nest. Indeed, the state’s own legislature quickly intervened with an attempted statutory fix.

The broader question is whether this federal constitutional vacuum is good or bad. I have my doubts that this vacuum is healthy for a political system. While much of family law has always been a matter of state law, the introduction of new drugs, devices, and biologics has traditionally been the responsibility of federal authorities to review.

So what would federal constitutional lawmaking in this space look like? There is ample room for development. Three very distinct constitutional programs come to mind, broadly speaking, centered on tradition, equality, and liberation. To be clear, as to each, I am considering only negative liberty (freedom from government restrictions), not the positive liberty equivalent (such as governmental support).

The traditionalist view would start with the forms of reproductive family-making that have long been part of U.S. history and treat the Constitution as a Procrustean device. Artificial insemination has a surprisingly long history in America. The first reported case was Dr. William Pancoast at the Jefferson Medical College in Philadelphia in 1884, shortly after the Fourteenth Amendment was added to the Constitution in 1868. The strictest traditional view might limit constitutional protection to artificial technology and leave states significant authority over the rest, perhaps policed on the margins by Equal Protection law. A more relaxed traditionalist might also seek to protect different technologies that have a similar goal — allowing women to become pregnant through technological participation of a single additional male partner (their husband or other), but exclude third-party participation.

The equality view focuses not on the technology itself but on the interest it serves, enabling individuals who cannot do so to reproduce. The narrow version would focus on medical infertility — gonadal damage, the inability to produce sperm and egg, women who had to undergo hysterectomies, etc. It might protect those who, by dint of bad moral luck, lost a medical capability that healthy individuals have. It might be connected to a particular concept of disease as departures from the human species’ typical desired functioning. On such a view, infertile men and women would fall under a federal constitutional aegis, but gay, lesbian, and single individuals (sometimes called “socially infertile” or “dysfertile”) would not be so protected and instead forced to duke it out for their usage as part of the political process.

While disability has never merited heightened review by the U.S. Supreme Court in Equal Protection analysis, this view might argue that, here, disability antidiscrimination (protecting those with medical infertility) is buttressed by its association with the right to reproduce and family formation. Of course, equality is a somewhat malleable concept, and one could imagine a version of the argument that is more embracing of gays and lesbians, with the kinds of odes to their relationship building we see in opinions like Obergefell v. Hodges.

Finally, the liberationist view renders the interest in reproductive technology use not merely as “mimicking” coital reproduction, but perhaps “extending” it. Extending even otherwise healthy women’s ability to genetically reproduce much later in life, bringing them parity with men’s ability to do so, is viewed as a fit goal for constitutionalism. For lesbian and gay would-be parents, it might embrace new technologies like IVG that would allow both partners to be genetic parents. What is worth protecting on this view is not merely same-sex family formation through parental recognition, but genetic family formation.

Indeed, we can get even more radically liberationist. Consider also uterus transplants — currently successfully performed in the U.S. on some assigned female at birth, but at least not yet (perhaps the science will ultimately mean not ever) on those assigned male at birth. A more radical constitutionalizing project would suggest that achieving gender equality means constitutional protections for trans women or even cisgender men might themselves be given the opportunity and challenges of experiencing pregnancy, and not merely a genetic connection.

Which of these or other (the list is not meant to be exhaustive) conceptions is the right one to guide our polity? In space, no one can hear you scream. And in a constitutional vacuum, the vociferous debate about these issues has heretofore remained quiet.

I. Glenn Cohen, JD, is the James A. Attwood and Leslie Williams Professor of Law, deputy dean, and faculty director at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. He is a contributor to “America Unfinished,” from which this article is adapted.