1 See, e.g., Phillips v. Irons, No. 1-03-2992, 2005 WL 4694579, *1 (Ill. App. Ct. Feb. 22, 2005); J.B. v. M.B., 783 A.2d 708, 717 (N.J 2001); Kass v. Kass, 696 N.E.2d 174, 176 (N.Y. 1998); Davis v. Davis, 842 S.W.2d 588, 598 (Tenn. 1992) (all involving disputes between divorced couples over the disposition of frozen embryos).

2 Prenatal testing to date is limited to the detection of single-gene or simple multigene disorders, such as Down syndrome, cystic fibrosis, fragile X, Tay-Sachs, Huntington chorea, sickle-cell anemia, and some forms of colon and breast cancer. See Roberts, Jason C., Customizing Conception: A Survey of Preimplantation Genetic Diagnosis and the Resulting Social, Ethical, and Legal Dilemmas, 2002 Duke L. & Tech. Rev. 12, ¶¶ 4, 6, 9, 31 (2002)Google Scholar, available at http://www.law.duke.edu/journals/dltr/articles/2002dltr0012.html (explaining that testing is not limited by regulations or court decisions but by the current level of science, technology, and money).

3 Genes do not by themselves determine human physiology or psychology. Genes influence a person’s genotype, the instructions for development and functioning in human beings. Genotype often diverges from phenotype, a person’s manifested characteristics, as when genetically identical twins exhibit striking disparities among a wide range of phenotypic traits (henceforth, just “traits”). Two reasons account for the complexity of traits. First, many traits are polygenic, meaning they involve diverse clusters of genes rather than any single gene. Second, most traits are also multifactorial, meaning the interaction of genetic and environmental factors is required for the trait’s transmission. Thus, there is nothing close to a guarantee that even the most advanced, effective, and precise genetic interventions would result in a child with the desired qualities. See Timothy H. Goldsmith, The Biological Roots of Human Nature: Forging Links Between Evolution and Behavior 70 (1992).

4 Consider the case of sex selection. Sperm sorting techniques, combined with artificial insemination, allow parents to choose the sex of their future child before he or she is conceived. The majority of couples who avail themselves of such techniques neither have difficulty conceiving on their own, nor are they at risk for passing along sex-linked disorders, such as hemophilia or muscular dystrophy. Instead, most opt for sex selection ART for the simple reason that it promises to give them the girl or the boy they prefer to raise. See David S. Karabinus & Keith L. Blauer, Gender Selection: Separating Fact From Fiction in Contemporary Endocrinology: Office Andrology 285, 293 (Phillip E. Patton, M.D. & David E. Battaglia, PhD eds. 2005) available at http://www.givf.com/library/articles/Karabinus-Blauer%20book%20chapter.pdf; See also Dov Fox, Paying for Particulars in People-to-be, 34 J. Med. Ethics (forthcoming 2007) [hereinafter Fox, Paying for Particulars].

5 The first approved commercial gene therapy, produced by the Chinese pharmaceutical Shenzhen SiBono GeneTech, was a biological agent called Gendicine that treats patients with head and neck cancer. See Wilson, James M., Gendicine: The First Commercial Gene Therapy Product, 16 Human Gene Therapy 1014, 1014 (2005).CrossRefGoogle ScholarPubMed

6 In 1997, molecular biologists at Johns Hopkins discovered a regulatory gene for growth in mice, which when switched off in embryo cells caused mice to grow more muscle. McPherron, Alexandra C. et al., Regulation of Skeletal Muscle Mass in Mice by a New TGF-p Superfamily Member, 387 Nature 83, 89 (1997).CrossRefGoogle Scholar

7 In 1999, researchers at Princeton and MIT modified an embryonic mouse gene that enhanced cognitive ability. Tang, Ya-Ping et al., Genetic Enhancement of Learning and Memory in Mice, 401 Nature 63, 68 (1999).CrossRefGoogle ScholarPubMed

8 In 2005, neurologists engineered a mouse gene that improved short-term recall. Cruz, Karen Santa et al., Tau Suppression in a Neurodegenerative Mouse Model Improves Memory Function, 309 Science 476, 480 (2005).Google Scholar

9 Congressional legislation regarding ARTs is limited to the Fertility Clinic Success Rate and Certification Act of 1992, which requires ART programs to report to the CDC the “pregnancy success rates achieved . . . through . . . assisted reproductive technology.” 42 U.S.C. §§ 263a-1 to -7 (2000); See Bratislav Stankovic, It’s a Designer Baby!: Opinions on Regulation of Preimplantation Genetic Diagnosis, 2005 UCLA J. L. Tech. 3, ¶ 4 (2005), available at http://www.lawtechjournal.com/articles/2005/03_050713_stankovic.php (noting the absence of ART regulation).

10 See Fox, Dov, Safety, Efficacy, and Authenticity: The Gap Between Ethics and Law in FDA Decision-Making, 4 Mich. St. L. Rev. 1135, 1146-53 (2005)Google Scholar [hereinafter Fox, Safety, Efficacy, and Authenticity]; Shapiro, Michael H., Is Bioethics Broke?: On the Idea of Ethics and Law “Catching Up” with Technology, 33 Ind. L. Rev. 17, 27-29 (1999).Google ScholarPubMed

11 See Ronald M. Dworkin, Sovereign Virtue: The Theory and Practice of Equality 427-52 (2000) [hereinafter Dworkin, Sovereign Virtue]; Joseph Fletcher, The Ethics of Genetic Control: Ending Reproductive Roulette 147-87 (1974); Gregory E. Pence, Who’s Afraid of Human Cloning? 151-61 (1998); John A. Robertson, Children of Choice: Freedom and the New Reproductive Technologies 149-72 (1994) [hereinafter Robertson, Children of Choice]; Lee M. Silver, Remaking Eden: How Genetic Engineering and Cloning Will Transform the American Family 266-80 (1998); Gregory Stock, Redesigning Humans: Our Inevitable Genetic Future 197-201 (2002).

12 See Buck v. Bell, 274 U.S. 200 (1927) (upholding the constitutionality of sterilization laws). Justice Holmes wrote for an 8-1 majority: “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” Id. at 207; See generally Daniel J. Kevles, In the Name of Eugenics: Genetics and the uses of human heredity 96-112 (1995).

13 Nicholas Agar, Liberal Eugenics: In Defence of Human Enhancement 132-50 (2004).

14 See Joel Garreau, Radical Evolution: The Promise and Peril of Enhancing Our Minds, Our Bodies And What It Means to be Human 184-223 (2004); John Harris, Wonderwoman and Superman: The Ethics of Human Biotechnology 158-61, 168-75 (1992); James Hughes, Citizen Cyborg: Why Democratic Societies Must Respond to the Redesigned Human of the Future 144-60 (2004); Philip Kitcher, The Lives to Come: The Genetic Revolution and Human Possibilities 174-92 (1996); Glenn McGee, The Perfect Baby: Parenthood in the New World of Cloning and Genetics 125-40 (2000); Ramez Naam, More Than Human: Embracing the Promise of Biological Enhancement 67-71 (2005).

15 Peter Singer, Shopping at the Genetic Supermarket, in Asian Bioethics in the 21st Century 143, 145 (Sang-Yong Song, et al. eds., 2003).

16 Fox, Dov, The Illiberality of Liberal Eugenics, 20 Ratio 1, 3-4 (2007).CrossRefGoogle Scholar

17 Id. at 4.

18 Robert Nozick, Anarchy, State, and Utopia 315 n* (1974).

19 See, e.g., Laura Carrier, Making Moral Theory Work for Law, 99 Colum. L. Rev. 1018 (1999); Richard A. Posner, The Problematics of Moral and Legal Theory, 111 Harv. L. Rev. 1637 (1998).

20 “[I]f a woman conceives while addicted to heroin we . . . See this as a misfortune for her child to be and for her: yet we do not use coercion to prevent such conceptions, or to force their termination, because this would be a . . . violation of basic liberties of the person.” Onora O’Neill, Autonomy and Trust in Bioethics 64 (2002).

21 See Rakowski, Eric, Who Should Pay for Bad Genes, 90 Cal. L. Rev. 1345, 1405-06 (2002).CrossRefGoogle ScholarPubMed

22 See Michael J. Sandel, What Money Can’t Buy: The Moral Limits of Markets, in The Tanner Lectures on Human Values 89, 96 (1998), available at http://www.tannerlectures.utah.edu/lectures/sandel00.pdf; See also Jones, Owen D., Sex Selection: Regulating Technology Enabling the Predetermination of a Child’s Gender, 6 Harv. J.L. & Tech. 1, 44-45 (1992).Google ScholarPubMed

23 See Huang, Peter H., Herd Behavior in Designer Genes, 34 Wake Forest L. Rev. 640, 659 (1999)Google ScholarPubMed; Mehlman, Maxwell J., The Law of Above Averages: Leveling the New Genetic Enhancement Playing Field, 85 Iowa L. Rev. 517, 574-75 (2000)Google ScholarPubMed; Shapiro, Michael H., The Impact of Genetic Enhancement on Equality, 34 Wake Forest L. Rev. 561, 621 (1999)Google ScholarPubMed.

24 See Fox, Dov, Genetic Testing and Health Insurance in America, 1 Roosevelt Rev. 109, 112 (2005)Google Scholar.

25 Silver, supra note 11, at 7.

26 Stock, supra note 11, at 194.

27 Francis Fukuyama, Our Posthuman Future 157 (2002).

28 See Plomin, Robert et al., The Genetic Basis of Complex Human Behaviors, 264 Science 1733, 1736 (1994)CrossRefGoogle ScholarPubMed (explaining that non-genetic factors account for as much variance in behavior as genetic factors).

29 Sandel, The Case Against Perfection: What’s Wrong with Designer Children, Bionic Athletes, and Genetic Engineering, Atlantic Monthly, Apr. 2004, at 51, 61 (2004).

30 This point draws on the distinction between germ-line (heritable) and somatic (nonheritable) interventions. Somatic intervention entails the manipulation of genes in fetuses, children, or adults. Somatic changes are not transmissible to progeny because they affect the differentiated cells of specific organs or tissues rather than the reproductive cells. By contrast, germ-line changes pass down to future offspring because they modify genes within the undifferentiated cells of sperm, eggs, or embryos, which affects all the cells of resulting offspring, including the reproductive cells. Genetic germ-line intervention is the more plausible scientific possibility. See Moseley, Ray, Commentary: Maintaining the Somatic/Genetic Distinction: Some Ethical Drawbacks, 16 J. Med. & Phil. 641, 642-43 (1991)CrossRefGoogle ScholarPubMed.

31 See Sandel, The Case Against Perfection: Ethics in the Age of Genetic Engineering 85-100 (2007) [hereinafter Sandel, Case Against Perfection].

32 See Id. at 49-52. See also Seeking the Best for Our Children? Parental Attention Deficit Disorder in American Moral Culture, (Nov. 2007) (unpublished manuscript, under review with the Journal of Applied Philosophy, on file with the American Journal of Law & Medicine).

33 “If bioengineering made the myth of the ‘self-made man’ come true,” Sandel argues, “it would be difficult to view our talents as gifts for which we are indebted rather than achievements for which we are responsible.” Id. at 86-87. Sandel is quick to concede, however, that “[g]enetically enhanced children would…remain indebted rather than responsible for their traits.” Id. at 87. Sandel does little further work to apply the argument about genetic engineering and human self-understanding to the case of practices that aim to modify human traits before offspring are born.

34 See, e.g., Groves, Christopher J. et al., Mutation Cluster Region, Association Between Germline and Somatic Mutations and Genotype-Phenotype Correlation in Upper Gastrointestinal Familial Adenomatous Polyposis, 160 Am. J. Pathology 2055, 2061 (2002)CrossRefGoogle ScholarPubMed.

35 See Robertson, John A., Embryos, Families, and Procreative Liberty: The Legal Structure of the New Reproduction, 59 S. Cal. L. Rev. 939, 1040 (1986)Google ScholarPubMed [hereinafter Robertson, Embryos, Families, and Procreative Liberty].

36 Brock, Dan W., Shaping Future Children: Parental Rights and Societal Interests, 13 J. Pol. Phil. 377, 395-96 (2005)Google Scholar. More robust versions of procreative liberty extend to rights of equal access to reproductive resources, whereby government would be required to fund or furnish artificial reproductive technologies for the infertile, or contraceptive or abortion services for those otherwise unable to obtain them. See Dorothy E. Roberts, Social Justice, Procreative Liberty, and the Limits of Liberal Theory: Robertson’s ‘Children of Choice,’ 20 Law & Soc. Inquiry 1005, 1021 (1995).

37 See, e.g., Ronald Dworkin, Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom 148, 158 (1994) [hereinafter Dworkin, Life’s Dominion] (suggesting the Supreme Court presupposed the principle of procreative autonomy in denying the state the specific power to criminalize contraception); Robertson, Children of Choice, supra note 11, at 38-39; Robertson, Embryos, Families, and Procreative Liberty, supra note 35, at 1040 (predicting that procreative liberty with minimal regulation will legally prevail); Sunstein, Cass R., Is There a Constitutional Right to Clone?, (University of Chicago Law School Public Law and Legal Theory Working Paper Series, Working Paper No. 22, 2002)Google Scholar, available at http://www.law.uchicago.edu/academics/publiclaw/resources/ 22.Sunstein.Clone.pdf (conceding that restrictions on cloning should survive constitutional scrutiny, but arguing that many of the rationales for banning cloning are based on ignorance and myth).

38 See, e.g., Joshua Kleinfeld, Tort Law and In Vitro Fertilization: The Need for Legal Recognition of “Procreative Injury”, 115 Yale L.J. 237, 237 (2005)Google Scholar (arguing that tort law should recognize and protect parents’ procreative interests); Michael Malinowski, Choosing the Genetic Makeup of Children: Our Eugenics Past—Present and Future?, 36 Conn. L. Rev. 125 (2003) (suggesting that laws governing human reproduction should not unduly burden the procreative liberty of prospective parents).

39 See, e.g., John Harris, Rights and Reproductive Choice, in The Future of Human Reproduction: Ethics, Choice, and Regulation 5, 34 (John Harris & Søren Holm eds., 1998) [hereinafter Harris, Rights and Reproductive Choice]; See also Jonathan Glover, Choosing Children: Genes, Disability, and Design 87 (2004).

40 See Rhodes, Rosamund, Ethical Issues in Selecting Embryos, 943 Annals N.Y. Acad. Sci. 360, 367 (2001)CrossRefGoogle ScholarPubMed (arguing that parents should be free to choose the sex of an embryo to implant).

41 See John Harris, Clones, Genes and Human Rights, in The Genetic Revolution and Human Rights 88-94 (Justine Burley ed., 1999) [hereinafter Harris, Clones, Genes, and Human Rights] (arguing that parents should be free to clone existing people to produce new children).

42 See Robertson, John A., Procreative Liberty in the Era of Genomics, 29 Am. J.L. & Med. 439, 453 (2003)Google ScholarPubMed.

43 See Harris, Rights and Reproductive Choice, supra note 39, at 34.

44 Griswold v. Connecticut, 381 U.S. 479 (1965).

45 Washington v. Glucksberg, 521 U.S. 702 (1997).

46 Id. at 720.

47 Griswold, 381 U.S. at 484 (citing Poe v. Ullman, 367 U.S. 497, 516 (Douglas, J., dissenting)).

48 Id.

49 Id. at 485.

50 See Harris, Rights and Reproductive Choice, supra note 39, at 34.

51 Eisenstadt v. Baird, 405 U.S. 438 (1972).

52 Id. at 440-42.

53 Id. at 453 (citing Stanley v. Georgia, 394 U.S. 557 (1969); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905)).

54 Carey v. Population Services, 431 U.S. 678, 682 (1977).

55 Id. at 684 (quoting Whalen v. Roe, 429 U.S. 589, 599-600 (1977)).

56 Roe v. Wade, 410 U.S. 113, 113 (1973).

57 Id. at 154.

58 Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992).

59 Id. at 874 (joint opinion of O’Connor, Kennedy, and Souter, JJ.).

60 Troxel v. Granville, 530 U.S. 57, 66-67 (2000) (plurality opinion).

61 Id. at 66 (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972)) (striking down a Washington law that authorized state superior courts to grant child visitation rights to “[a]ny person” and “at any time,” even against a parent’s wishes, whenever such visitation was deemed to serve a child’s best interest).

62 This framework comes from Note, Assessing The Viability Of a Substantive Due Process Right to In Vitro Fertilization, 118 Harv. L. Rev. 2792, 2802 (2005)Google Scholar (applying due process jurisprudence to an asserted right to IVF).

63 Casey, 505 U.S. at 851; See also Jones, supra note 22, at 37.

64 Glucksberg, 521 U.S. at 721 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion); Palko v. Connecticut, 302 U.S. 319, 325 (1937) (citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).

65 See, e.g., Curt S. Rush, Note, Genetic Screening, Eugenic Abortion, and Roe v. Wade: How Viable is Roe’s Viability Standard?, 50 Brooklyn L. Rev. 113, 116 (1983).Google Scholar

66 Lawrence v. Texas, 539 U.S. 558, 578 (2003).

67 Id.

68 Harris, Rights and Reproductive Choice, supra note 37, at 34.

69 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).

70 See Robertson, John A., Procreative Liberty and Harm to Offspring in Assisted Reproduction, 30 Am. J.L. & Med. 7, 21 (2004)Google ScholarPubMed [hereinafter Robertson, Procreative Liberty].

71 Robertson, Children of Choice, supra note 11, at 16.

72 See Robertson, Procreative Liberty, supra note 70, at 21.

73 See Dworkin, Life’s Dominion, supra note 37, at 158; See also Harris, Rights and Reproductive Choice, supra note 39, at 5-6.

74 See Robertson, John A., Genetic Selection of Offspring Characteristics, 76 B.U. L. Rev. 421, 429 (1996)Google ScholarPubMed.

75 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).

76 Glucksberg, 521 U.S. at 721 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion))

77 Palko v. Connecticut, 302 U.S. 319, 325 (1937).

78 Troxel v. Granville, 530 U.S. 57, 66 (2000).

79 See Agar, supra note 13, at 113; Jonathan Glover, What Sort of People Should There Be? 53 (1984); Arthur L. Caplan, What’s Morally Wrong with Eugenics?, in Controlling our Destinies: Historical, Philosophical, Ethical, and Theological Perspectives on the Human Genome Project 209, 221-22 (Philip Sloan ed., 2000); DeGrazia, David, Enhancement Technologies and Human Identity, 30 J. Med. & Phil. 261, 273 (2005)CrossRefGoogle ScholarPubMed.

80 Robertson, Children of Choice, supra note 11, at 167.

81 See, e.g., DeGrazia, supra note 80, at 269 (addressing the argument that genetic enhancement “violat[es] inviolable core characteristics”); Dov Fox, Human Growth Hormone and the Measure of Man, New Atlantis, Fall 2004/Winter 2005, at 75, 84-85 [hereinafter Fox, Human Growth Hormones] (addressing the argument that genetic engineering diminishes a child’s capacity for “moral agency”).

82 Sandel, Case Against Perfection, supra note 31, at 81.

83 See Fox, Human Growth Hormones, supra note 81, at 85.

84 See, e.g., Korematsu v. United States, 323 U.S. 214 (1944)

85 Reno v. Flores, 507 U.S. 292, 302 (1993).

86 See Roe v. Wade, 410 U.S. 113, 155 (1973).

87 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992).

88 See Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion).

89 Lawrence v. Texas, 539 U.S. 558, 594 (2003).

90 Meyer, David D., The Paradox of Family Privacy, 53 Vand. L. Rev. 527, 529 (2000)Google Scholar.

91 Clark v. Jeter, 486 U.S. 456, 461 (1988).

92 Owen Jones disputes the claim that the Supreme Court would apply intermediate scrutiny to the regulation of reproductive techniques. Jones argues that the Court has heretofore reserved that standard of review to the protection of “quasi-suspect” classes of people, and would be unlikely to shift course when confronted with the question of new genetic technologies. See Jones, supra note 22, at 41 n.157 (citing Craig v. Boren, 429 U.S. 190, 197-199 (1976); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723-26 (1982)).

93 See generally Adams, Robert M., Existence, Self-Interest, and the Problem of Evil, 13 Nous 53 (1979)CrossRefGoogle Scholar; See also Lewinsohn-Zamir, Daphna, Consumer Preferences, Citizen Preferences, and the Provision of Public Goods, 108 Yale L.J. 377 (1998)CrossRefGoogle Scholar.

94 See Adams, supra note 93, at 57 (“In evaluating actions that shape the future we can consider (1) the interests of future individuals [and] (2) the interests of individuals that now exist”).

95 Collective measures are justified to promote sufficient compliance. A person who considers as decisive reasons to act only those costs and benefits that directly affect her will find little incentive to contribute to the provision of those goods for which her enjoyment may not feasibly be prevented. As a result, not only may the free-riding which ensues be unfair in itself, but too few people may contribute to public goods such as, for example, national defense and clean air by, say, volunteering for the armed services or driving lesser polluting but more expensive cars, for those critical goods to be secured. Yet if others follow suit, the resulting smoggy air or insecure borders would be an unacceptable consequence to most inhabitants. See Lewinsohn-Zamir, supra note 93, at 377.

96 There is precedent for progenitors taking active measures to produce a child with a congenital impairment. In 1995, an American couple, both of whom were born with achondroplasia, the most common form of dwarfism, used IVF and PGD to have a child who was a dwarf. See Faye Flam, Designing the Family Tree a Road to Eugenics?, Buffalo News, June 25, 1995, at F7. Seven years later, a deaf lesbian couple, also from America, used artificial insemination with a sperm donor who had a family history of deafness, for the express purpose of having a child who could not hear. See Spriggs, Merle, Lesbian Couple Create a Child Who is Deaf Like Them, 28 J. Med. Ethics 283 (2002)CrossRefGoogle Scholar.

97 See Parfit, Derek, Reasons and Persons 351-379 (1984); James Woodward, The Non-Identity Problem, 96 Ethics 804 (1986)Google Scholar; Adams, supra note 93, at 57; Bayles, Michael, Harm to the Unconceived, 5 Phil. & Pub. Aff. 293, 294 (1976)Google ScholarPubMed; Hanser, Matthew, Harming Future People, 19 Phil. & Pub. Aff. 47, 47 (1990)Google ScholarPubMed; Gregory S. Kavka, The Paradox of Future Individuals, 11 Phil. & Pub. Aff. 93, 93-94 (1982).

98 Some commentators have rejected this “life worth living” standard in favor of other more demanding benchmarks for acceptable reproduction. See, e.g., David Benatar, The Wrong of Wrongful Life, 37 Am. Phil. Q. 175 (2000)Google Scholar (a life expected to lack unusually severe hardship); Steinbock, Bonnie & McClamrock, Ron, When Is Birth Unfair to the Child?, 24 Hastings Center Rep. 15 (1994)Google ScholarPubMed (a life expected to have some minimum level of welfare); Kamm, Frances M., Genes, Justice, and Obligations to Future People, 19 Soc. Phil. & Pol’y 360 (2002)CrossRefGoogle ScholarPubMed (a life of adequate health and normal functioning ); Reiman, Jeffrey, Being Fair to Future People: The Non-Identity Problem in the Original Position, 35 Phil. & Pub. Aff. 69 (2007)CrossRefGoogle Scholar (a life of at least average opportunity for well-being). However, it seems implausible to afford offspring the right to a quality of life above some threshold for which it is not possible for that child—but instead, only some other child—ever to have reached in the first place. Whatever adversity the impaired child can be expected to suffer is an acceptable price for that child to pay for a life she could not otherwise have had.

99 Australian Dep’t of Immigration and Multicultural Affairs, Immigration Fact Sheet: Family Stream Migration—Parent Category Visas, 2006, http://www.immi.gov.au/media/fact-sheets/31parents.htm (last visited October 17, 2007).

100 E. Boisen, Testicular Size and Shape of 47, XYY and 47, XXY Men in a Double-Blind, Double-Matched Population Survey, 31 Am. J. Hum. Genetics 697, 697 (1979).Google Scholar

101 A 1984 Danish study compared the criminal records of 14,427 adopted men with those of both biological and adopted fathers. The study found that while the majority of men with criminal fathers—either natural or adopted—had no criminal record, 20% of those men with a “criminal” biological father but a “clean” adoptive father also had criminal records themselves. See Sarnoff A. Mednick, William F. Gabrielli Jr., & Hutchings, Barry, Genetic Influences in Criminal Convictions: Evidence from an Adoption Cohort, 224 Science 891, 892 (1984)Google Scholar. Subsequent studies have used genetic markers on the X chromosome to corroborate a connection between mutations in the monoamine oxidase A gene, as that gene interacts with various environmental factors, and a measure of increased risk for violent behavior. See, e.g., Bruenner, Han G., et al., Abnormal Behaviour Associated with a Point Mutation in the Structural Gene for Monoamine Oxidase A, 262 Science 578 (1993).CrossRefGoogle Scholar

102 Margaret Olivia Little, Cosmetic Surgery, Suspect Norms, and the Ethics of Complicity, in ENHANCING Human Traits: Ethical and Social Implications 162, 163 (Erik Parens ed., 1998).

103 Fukuyama, supra note 27, at 80-81.

104 See, e.g., Genetics and IVF Institute, http://www.givf.com/ (last visited October 17, 2007).

105 Dahl, Egdar, Procreative Liberty: The Case for Preconception Sex Selection, 7 Reproductive BioMedicine Online, 380, 382 (2003)CrossRefGoogle ScholarPubMed, available at http://www.rbmonline.com/1105.

106 When a trailer for the 1997 film Gattaca featured the phone number 1-888-4-BESTDNA, so many couples mistook the sales pitch for a genuine offer to genetically enhance their offspring that the American Society for Reproductive Medicine issued a press release denying involvement. Three years later, artists Karl Mihail and Tran Kim-Trang launched a simulated “biotech boutique” called “Gene Genies Worldwide” that offered consumers genetic engineering. Thousands of would-be-customers called in to purchase the ersatz enhancements for their future children. See Lori B. Andrews, Changing Conceptions, in The Genie: Essays on Technology and the Quest for Human Mastery 105 (Alan Lightman, Daniel Sarewitz, & Christina Desser eds., 2003). For futher discussion, See Posner, Eric A. & Posner, Richard A., The Demand for Human Cloning, 27 Hofstra L. Rev. 579, 601-608 (1999)Google ScholarPubMed.

107 See Anna Fahraeus & AnnKatrin Jonsson, Textual Ethos Studies, or Locating Ethics 21 (2005).

108 See Nozick supra note 18, at 172, 182 (arguing that just social institutions are embodied in the minimal state, which confines its reach to the enforcement of contracts and individual rights).

109 See Jan Narveson, The Libertarian Idea 66 (1988) (arguing that the fundamental individual right is an equal liberty right for all people to acquire, hold, and control private property).

110 See Murray Rothbard, Power and Market 1-9, 86-87, 212-16 (2d ed. 1977) (arguing that state transfers of wealth are market inefficient and that the provision of defense, police, and courts does not require the existence of government).

111 See generally Parfit, Derek, Equality and Priority, 10 Ratio 202, 217 (1997)CrossRefGoogle Scholar.

112 See Kai Nielsen, Equality and Liberty, 242 (1985).

113 Nozick replies by distinguishing desert from entitlement. He acknowledges a person does not morally deserve his privileged endowment, but denies that the moral arbitrariness of his advantageous genes implies an obligation to share with those who, through no fault of their own, lack comparable gifts. Nozick argues:

It is not true, for example, that a person earns Y (a right to keep a painting he’s made, praise for writing A Theory of Justice, and so on) only if he’s earned (or otherwise deserves) whatever he used (including natural assets) in the process of earning Y. Some of the things he uses he just may have, not illegitimately. Nozick, supra note 18, at 225.

Nozick concedes that a person might not deserve some advantage that he comes to acquire by means that do not involve thievery, extortion, blackmail, or embezzlement. Id. But so long as that advantage does not belong to anyone else, Nozick concludes, then the individual is, nevertheless, entitled to it, and to whatever rewards flow from it, through a process of transfer that does not, itself, violate the entitlements of others. See Id.

Libertarian entitlements have less moral force than Nozick attaches to them. It does not follow that I am entitled to something, at least not in any pre-institutional sense, simply because I come to have that thing in some unspecified sense of possession that is not itself illegitimate. Entitlements derive from institutions, not from natural rights. Being entitled to something, in the specified moral sense, depends on my having legitimate expectations to having it. Yet my legitimate expectations depend, in turn, on some pre-existing social institution having established such expectations in the first place. Entitlements have no a priori moral force apart from the institutions from which the expectations required for those entitlements derive. See Dov Fox, Luck, Genes, and Equality, 35 J.L. Med. & Ethics (forthcoming 2007).

114 See Isaiah Berlin, Equality, in 56 Proceedings of the Aristotelian Society 301, 311-12 (1956) (arguing that the good of equality in economic conditions needs no further justification than that it is fairer than inequality).

115 See Cohen, G.A., On the Currency of Egalitarian Justice, 99 Ethics 906, 916 (1989)CrossRefGoogle Scholar (arguing that equality is just to the extent it holds people responsible for only those choices made with awareness of their consequences).

116 See Larry Temkin, Inequality 13 (1993) (arguing that equality of distributive shares has some, if not necessarily decisive, moral value, even when there is no individual for whom things are better because of it).

117 Mickey Kaus, The End of Equality 18 (1995).

118 See Aristotle, The Politics 181 (Ernest Barker trans. and ed. 1946); Michael Sandel, Democracy’s Discontent 330 (1996) [hereinafter Sandel, Democracy’s Discontent]; Jean-Jacques Rousseau, On the Social Contract, in The Social Contract and Other Later Political Writings 39, 78-80 (Victor Gourevitch, trans. and ed., 1997).

119 See Hannah Arendt, On Revolution 23 (1963); Ronald Beiner, Political Judgment 80 (1983) (discussing Aristotle’s argument that friendship is essential to citizenship); Robert Dahl, Democracy and Its Critics 333 (1989); Alasdair MacIntyre, After Virtue 131 (1981); Sandel, Democracy’s Discontent, supra note 118, at 330; Sunstein, Cass, Beyond the Republican Revival, 97 Yale L.J. 1539, 1552 (1988)CrossRefGoogle Scholar.

120 Aristotle, Nicomachean Ethics 40 (Terence Irwin trans. and ed., Hackett Publishing 1985) [hereinafter Aristotle, Nicomachean Ethics).

121 15 The Catholic Encyclopedia: An International Work of Reference on the Constitution, Doctrine, Discipline, and History of the Catholic Church 472 (Charles G. Herbermann et al. eds., 1913).

122 St. Thomas Aquinas, Summa Theologica 821, (Fathers of the English Dominican Province trans. Benziger Bros. 1947).

123 Aristotle, Rhetoric, in The Rhetoric and the Poetics of Aristotle 1, 113 (W. Rhys Roberts & Ingram Bywater trans., The Modern Library 1984). There are two ways of understanding what it means to believe that another’s misfortune might have befallen me instead. The first is to believe that the misfortune could actually have happened to me, had only some relevant circumstance been slightly different. Imagine, for example, that a falling asteroid destroys my neighbor’s house, but would have struck mine if the weather conditions been different that day. The second way to construe this idea bears on a wider range of cases, in which the causal circumstances of another’s suffering are not, as in the asteroid case, exceedingly close to one’s own. Suppose an acquaintance of mine is diagnosed with a rare genetic disorder. I might still be able to imagine that the misfortune could have happened to me, even though, in point of fact, it could not have.

124 See Brink, David O., Self-Love and Altruism, 14 Soc. Phil. & Pol’Y 122 (1997)CrossRefGoogle Scholar.

125 See Immanuel Kant, Idea for a Universal History with a Cosmopolitan Purpose, in Kant’s Political Writings 41, 45-46 (Hans Reiss ed., H.B. Nisbet trans., Cambrindge Univ. Press 1970) (discussing themes of world history, progress and enlightenment).

126 See Martha Nussbaum, Upheavals of Thought: The Intelligence of Emotions 19 (2001) [hereinafter Nussbaum, Upheavals of Thought] (describing emotions as evaluative judgments largely beyond a person’s control).

127 Id.; “[T]he moral sentiments are a normal part of human life,” Rawls writes. “One cannot do away with them without at the same time dismantling the natural attitudes as well.” John Rawls, A Theory of Justice 428 (rev. ed. 1999) [hereinafter Rawls, Theory of Justice].

128 Id. at 109-110 (arguing that conditions of moderate scarcity and conflict of interest are inescapable in modern democratic societies).

129 Walt Whitman, By Blue Ontario’s Shore, in Leaves of Grass and Other Writings, 286, 291 (Michael Moon ed., expanded and rev. ed., W. W. Norton & Co. 2002) (1867).

130 This is the claim of liberal nationalists like David Miller, Yael Tamir, and Will Kymlicka, who argue that a sense of belonging to intergenerational political communities is needed to inform, motivate, and justify egalitarian policies in modern democratic states. See Kymlicka, Will, Social Unity in a Liberal State, 13 Soc. Phil. and Pol’y 105 (1996)CrossRefGoogle Scholar (arguing that social unity in a liberal state consists in a shared sense of national identity); Miller, David, The Ethical Significance of Nationality, 98 Ethics 647, 662 (1988)CrossRefGoogle Scholar (arguing that moral duties to compatriots are greater than duties owed to strangers); Tamir, Yael, The Enigma of Nationalism, 47 World Pol. 418 (1995)CrossRefGoogle Scholar (arguing that liberal values such as autonomy and reflection, can accommodate national values, such as belonging, loyalty, and solidarity).

131 Rawls, Theory of Justice, supra note 127, at 245-51.

132 Id. at 19, 145.

133 Id. at 154

134 Id. at 156

135 Id. at 62-63.

136 Melvin J. Lerner, The Belief in a Just World: A Fundamental Delusion 11- 12 (1980) (arguing that people seek to believe that the world is an orderly and predictable place, where people get what they deserve).

137 The Just World Hypothesis gives voice to a powerful and attractive psychological motivation for the way that most people, at least in developed countries, organize their lives. The conviction that beneficiaries deserve their advantages, and victims their suffering, allows people to confront their physical and social environments as though they are just and stable, and thus to pursue their goals with the faith that their efforts will have consequences that are both empirically predictable and morally desirable. Lerner, Melvin J., Evaluation of Performance as a Function of Performer’s Reward and Attractiveness, 1 J. of Personality and Soc. Psychol. 355, 360 (1965)CrossRefGoogle ScholarPubMed (finding that people tend to view favorable life outcomes as just rewards for praiseworthy behavior or positive characteristics).

138 Id.

139 Id.

140 Lerner, Melvin J. & Miller, Dale T., Just World Research and the Attribution Process: Looking Back and Looking Ahead, 85 Psychol. Bull. 1030, 1032 (1978)CrossRefGoogle Scholar.

141 Lerner and a colleague, Carolyn Simmons, found that in order to preserve the plausibility of a belief in a just world, we seek to explain away evidence that suggests a mismatch between people’s personal character and their outcomes in life, such as circumstances under which innocent or praiseworthy individuals are dealt pain or adversity. Among the cognitive and behavioral strategies that people employ to restore their belief in a just world, the most common, Lerner and Simmons discovered, is simply to redefine the event in question so that it appears just. See Lerner, Melvin J. & Simmons, Carolyn H., Observer’s Reaction to the ‘Innocent Victim’: Compassion or Rejection?, 4 J. of Personality & Soc. Psychol. 203, 210 (1966)CrossRefGoogle ScholarPubMed (finding that people tend to view unfavorable life outcomes as just punishment for blameworthy behavior or undesirable attributes).

142 Although we are aware, for example, that many homeless people grow up in abusive homes, attend poorly funded schools, or are inflicted by mental illness, we still tend to hold them accountable for the predictably unhappy life outcomes they encounter. If we learn of underprivileged individuals who succeed in spite of their humble beginnings, we may convince ourselves that others among the disadvantaged could have also have overcome the meager hand that early circumstances dealt them, if only they had exercised effort and fortitude.

143 See Melvin J. Lerner & Julie H. Goldberg, When Do Decent People Blame Victims? The Differing Effects of the Explicit/Rational and Implicit/Experiential Cognitive Systems, in Dual-Process Theories in Social Psychology 627, 638-39, (Shelly Chaiken & Yaacov Trope eds., 1999) (arguing that a belief that people get what they deserve can be subconsciously maneuvered to justify in-group sympathies and out-group indifference).

144 Subsequent studies confirm the plausibility of the Just World Hypothesis with respect to specific misfortunes, such as physical illness or undue arrest. See Gruman, Jessie C. & Sloan, Richard P., Disease as Justice: Perceptions of the Victims of Physical Illness, 4 Basic & Applied Soc. Psychol. 39, 44 (1983)CrossRefGoogle Scholar; Jason Sunshine & Larry Heuer, Deservingness and Perceptions of Procedural Justice in Citizen Encounters with the Police, in The Justice Motive in Everyday Life 397, 402, 411-12 (Michael Ross & Dale T. Miller eds., 2002) (applying the Just World Hypothesis successfully to reactions toward the specific negative event of police arrests in others).

145 Rousseau coined this expression in the first paragraph of his Social Contract. Rousseau, supra note 118, at 44. Rawls later interpreted Rousseau’s phrase in the following way: “‘men as they are’ refers to persons’ moral and psychological natures and how that nature works within the framework of political and social institutions.” John Rawls, the Law of Peoples 7 (1999). I use the phrase in a similar way. That is, I assume, as relatively fixed, the moral and psychological limitations of the sort to which human beings are commonly susceptible. The one difference in my use of this assumption is that I extend that aspect of human nature to which Rawls refers beyond the level of public institutions to that of social ethos, the collection of individual attitudes across society.

146 See Nussbaum, The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy (1986) (arguing that Aristotle and Plato disagreed about the character of human value and that Aristotle was right: that which is morally good in human life cannot be realized apart from appreciation of its vulnerability).

147 Id.

148 See Nussbaum, Upheavals of Thought, supra note 126, at 329.

149 A belief in the magnitude of another’s suffering relies not on the perception of the one who suffers—which may be distorted—but instead on that of a reflective spectator, more reliably disposed to evaluate the seriousness of the harm for a person with the sufferer’s particular set of circumstances and characteristics. For example, an affluent aristocrat— having developed powerful attachments to material goods—may profess misery on account of costly tariffs. Despite his grumbles, we need not perceive the high levies imposed as seriously harmful to him. Likewise, an oppressed woman—having internalized a belief in the fittingness of gender hierarchy and female deprivation—may make no claims that her well-being should be improved. Contrary to her declared contentment, we are apt to perceive any deficiency of health, education, or freedom as seriously harmful to her.

150 This idea of non-responsibility turns on the distinction between choices (factors over which people exercise control) and luck (factors over which they exercise little or no control). Luck is any factor that affects life outcomes, and for which the affected individual could not reasonably have foreseen or done otherwise. Luck factors include either accidents or windfalls, plus a person’s genome, care-givers, and other formative influences thrust upon her as a young child. Choice, by contrast, is any act of (free and informed) consent or commitment, such as those governing decisions about whether or not to work hard or to pursue high-risk ambitions or to indulge one’s consciously cultivated expensive tastes. Choice factors also include isolated risks that a person should have foreseen and could have refused, or even—where insurance was available—those uncontrollable and uninvited eventualites against which one had a genuine opportunity to protect oneself in advance. See Dworkin, Ronald, What is Equality? Equality of Resources, 10 Phil. & Pub. Aff. 283, 311 (1981)Google Scholar (arguing that a just distribution should be “ambition-sensitive” and “endowment-insensitive”).

151 In addition to cases where people are punished too severely for their faults, we may also express compassion where we think that bad choice-making is itself largely the product of forces—genetic susceptibility, impoverished upbringing, or adolescent naïveté—which are beyond the agent’s reasonable control.

152 See, e.g., Lockett v. Ohio, 438 U.S. 586, 602-3 (1978) (stating, “[W]here sentencing discretion is granted, it generally has been agreed that the sentencing judge’s ‘possession of the fullest information possible concerning the defendant’s life and characteristics’ is ‘[highly] relevant – if not essential – [to the] selection of an appropriate sentence . . . .” (citing Williams v. New York, 337 U.S. 241, 247 (1949)).

153 On the relation between what I have called fellow-feeling and non-responsibility, see, for example, Appelbaum, Lauren D., The Influence of Perceived Deservingness on Policy Decisions Regarding Aid to the Poor, 22 Pol. Psychol. 419, 436-37 (2001)Google Scholar; Hein F. Lodewijkx, Erik W. de Kwaadsteniet, & Nijstad, Bernard A., That Could Be Me (or Not): Senseless Violence and the Role of Deservingness, Victim Ethnicity, Person Identification, and Position Identification, 35 J. Applied Soc. Psychol. 1361, 1377-79 (2005)Google Scholar.

154 Fellow-feeling, as an expression of concern for others, should be distinguished from either sympathy—whereby concern for others flows from the way that concern directly influences one’s own psychological well-being—or commitment—whereby such concern makes a person no worse off personally, but nevertheless moves him, out of a sense of right and wrong, to do something to remedy a perceived injustice. See Sen, Amartya K., Rational Fools: A Critique of the Behavioral Foundation of Economic Theory, 6 Phil. & Pub. Aff. 317, 326 (1977)Google Scholar (criticizing the assumption of classical economic theory that individuals always behave in a way that serves their own narrowly-defined private interests).

155 See generally, Sugden, Robert, Beyond Sympathy and Empathy: Adam Smith’s Concept of Fellow-Feeling, 18 Econ. & Phil. 63 (2002)CrossRefGoogle Scholar.

156 Id. at 71.

157 One might contest the plausibility of fellow-feeling as it applies to bad genetic luck. A child, produced from the combination of a specific sperm and egg, could not otherwise have come into existence, except with the particular bundle of biological tendencies that we normally associate with individual identity. Whether an individual’s genome owes to randomized fertilization or careful engineering, it is difficult, as a conceptual matter, to See how the person could imagine what it would have been like to be in the shoes of a person who developed from a different set of gametes or radically modified embryo.

The condition of fellow-feeling is less problematic as a matter of psychology. A misfortune that befalls another person in the natural lottery need not have been capable of similarly affecting me for me to be able to sense what it would be like to have undergone that misfortune. Common ethical understanding suggests that we think of genetic factors that influence us when we are still in the womb as no less a matter of luck just because they affect us before we have the personality and other qualities that make us the particular people we become. Counterfactual identification with another’s suffering entails neither that I believe, for a time, that I actually am the one who suffers, nor that I think of my emotions as somehow fused with those of the sufferer. After all, “it is for another, and not oneself,” Martha Nussbaum observes, “that one feels.” The person who expresses fellow-feeling “is aware both of the bad lot of the sufferer,” that is, “and of the fact that it is, right now, not one’s own.” Nussbaum, Martha, Compassion: The Basic Social Emotion, 13 Soc. Phil. & Pol’y 27, 35 (1996)Google Scholar [hereinafter Nussbaum, Compassion].

158 Jean-Jacques Rousseau, Emile or On Education 224 (Allan Bloom trans., Basic Books 1979) (proposing a system of moral education that enables the “natural man” of his SOCIAL CONTRACT to flourish within a corrupt society).

159 A similar reason helps to explain why: (a) grandparents are apt to have greater concern for the future state of the world than will those without a strong connection to younger generations; (b) adult children are prone to care more about the provision of subsidized medical coverage as they witness the health care demands their aging parents require in the later stages of life; and (c) white males are likely to struggle empathizing with the obstacles that females and minorities face in a social system characterized by patriarchy and racial prejudice.

160 John Rawls imagines an alternative route to this sort of “imaginative reconstruction.” The hypothetical contractors in Rawls’s Original Position identify with the fate of the least fortunate out of ignorance about those particular characteristics that distinguish them from others, and out of uncertainty about the socio-economic position in which they might end up. Under such conditions, Rawls argues that self-interested parties would choose the alternative whose worst outcome is superior to the worst outcome of any other alternative. Real-world circumstances are different, however, in that they yield at least partial information and knowledge about the way in which people share important vulnerabilities. In actual societies, it is an emotional response of fellow-feeling that restrains the successful from dismissing the misfortune of others as too remote or foreign to their own situation in life. See Rawls, Theory of Justice, supra note 127, at 134-135.

161 Nussbaum, Compassion, supra note 157, at 28.

162 See Fraga, Mario F. et al., Epigenetic Differences Arise During the Lifetime of Monozygotic Twins, 102 Proceedings of the National Academy of Sciences 10604, 10609 (2005)CrossRefGoogle ScholarPubMed (arguing genetically identical twins typically exhibit phenotypic variation across a range of traits). Genetic engineering need not result in a child who is an essentially different person. Consider that we can readily do away with birthmarks, eye color, and other trivial physical features, for example, without thinking of ourselves as very different in terms of identity. On the other hand, traditional childrearing practices can change a person in dramatic ways—parental influences bearing on early-age nutrition, exercise, communication, and nurturance govern protein-DNA interactions that regulate gene expression for the development of a range of cognitive, emotional, and physical capacities. See Robinson, Gene E., Beyond Nature and Nurture, 304 Science 397, 399 (2004)CrossRefGoogle ScholarPubMed.

163 See, e.g., John Durant, Anders Hansen & Martin Bauer, Public Understanding of New Genetics, in The Troubled Helix: Social and Psychological Implications of the New Human Genetics 235 (Theresa Marteau & Martin Richards eds., 1996); Anne Kerr, Sarah Cunningham-Burley, & Amos, Amanda, Drawing the Line: An Analysis of Lay People’s Discussions about New Genetics, 7 Pub. Understanding Sci. 113, 133 (1998)Google Scholar; Maddox, John, Wilful Public Misunderstanding of Genetics, 364 Nature 281, 283 (1993)CrossRefGoogle ScholarPubMed (each acknowledging the prevalence and persistence of a strong belief in genetic essentialism).

164 The exception is disease. People who suffer from congenital disease, by contrast, report that they experience their disabling condition less as an irreducible aspect of who they are than as an alienation from their true selves. See Kaye Toombs, The Meaning of Illness: A Phenomenological Account of the Different Perspectives of Physician and Patient 90, 97 (1993) (discussing how patients experience their diseases).

165 See Alwin, Duane F., From Obedience to Autonomy: Changes in Traits Desired in Children, 1924-1978, 52 Pub. Opinion Q. 33, 42 (1988)Google Scholar; See also Starks, Brian & Robinson, Robert V., Who Values the Obedient Child Now? The Religious Factor in Adult Values for Children, 1986-2002, 84 Soc. Forces 343, 349 (2005)CrossRefGoogle Scholar (discussing parental survey results about children).

166 See Kenneth F. Schaffner, Behavior: Its Nature and Nurture, Part 1, in Wrestling with Behavioral Genetics: Science, Ethics, and Public Conversation 3-39 (Erik Parens, Audrey R. Chapman & Nancy Press eds., 2006) (arguing against the idea that human behavior can be reduced primarily to genetic causes).

167 See, e.g., Brewer, Marilynn B., The Psychology of Prejudice: Ingroup Love or Outgroup Hate?, 55 J. Soc. Issues 429, 444 (1999)CrossRefGoogle Scholar (arguing that in-group bias and intergroup discrimination is frequently motivated by preferential treatment of in-group members rather than by direct hostility toward out-group members).

168 Brodwin, Paul, Genetics, Identity, and the Anthropology of Essentialism, 75 Anthropological Q. 323, 323-24 (2002)CrossRefGoogle Scholar (arguing that new genetic knowledge changes the ways people claim connection to each other).

169 Id. at 326.

170 Francis M. Kamm, Response to Commentators on ‘What’s Wrong With Enhancement?’, 5 Am. J. Bioethics W4, W7 (2005) [herinafter Kamm, Response to Commentators] (arguing that genetic fixes are the appropriate solution to a range of social ills).

171 Rawls, Theory of Justice, supra note 127, at 14.

172 Cohen, supra note 115, at 931.

173 See Anderson, Elizabeth, What Is the Point of Equality?, 109 Ethics, 287, 305 (1999)CrossRefGoogle Scholar (arguing that distributive policies should seek to achieve the economic status required for political equality).

174 Oliver O’Donovan, Begotten or Made? Human Procreation and Medical Technique 3 (1984).

175 See Kerah Gordon-Solmon, Luck, Love, and Extreme Skiing (August 2005) (unpublished paper, on file with author).

176 Romantic love, at its best, bears three features: passion, intimacy, and commitment. Passion refers to physical attraction and sexual consummation; intimacy to the mutual sharing of time, emotions, values, and possessions; commitment to the devoted expression of concern for each other’s well-being. Taken all together, these features distinguish romance from erotic infatuation, familial obligation, platonic friendship, and other forms of love.

177 Gordon-Solomon, supra note 179, at 12.

178 See, supra note 175, at 12.

179 See Id. at 10.

180 See Id. at 11.

181 See Id. at 12

182 See Id.

183 See Id.

184 See Id.

185 See Id.

186 See Id.

187 See Id.

188 Dworkin, Sovereign Virtue, supra note 11, at 445.

189 See, e.g., Troy Duster, Individual Fairness, Group Preferences, and the California Strategy, in Race and Representation: Affirmative Action 111, 129 (Robert Post & Michael Rogin eds., 1998) (arguing that minorities are entitled to preferential treatment in employment hiring and university admissions as redress for slavery and Jim Crow); McGary, Howard, Jr., Justice and Reparations, 9 Phil. Forum 250, 257 (1977)Google Scholar.

190 See, e.g., Janna Thompson, Taking Responsibility for the Past: Reparation and Historical Justice ix (2002) (arguing that citizens can bear reparative responsibilities for wrongs that their descendents committed before the presently-existing citizens themselves were even born); Charles J. Ogletree, Jr., Repairing the Past: New Efforts in the Reparations Debate in America, 38 Harv. C.R.-C.L. L. Rev. 279, 317–18 (2003).

191 See Nozick, supra note 11, at 152-153.

192 Id.

193 Id.

194 Rawls, Theory of Justice, supra note 127, at 111.

195 See Id. at 409-413.

196 See Joulfaian, David & Wilhelm, Mark, Inheritance and Labor Supply, 29 J. Hum. Resources 1205 (1994)CrossRefGoogle Scholar (finding that the likelihood that a person remains employed decreases with the amount of inheritance received).

197 See Beth Harris, How the Rich Kids Live: HBO Looks at Those ‘Born Rich’ in New In- Depth Documentary, CNN.COM, Oct. 27, 2003, http://www.cnn.com/2003/SHOWBIZ/ TV/10/27/apontv.bornrich.ap (describing the sense of entitlement felt by those who inherited wealth and fame).

198 Kamm, Frances M., Is There a Problem with Enhancement?, 5 Am. J. Bioethics 5, 13 (2005)CrossRefGoogle Scholar.

199 Kamm, Response to Commentators, supra note 170, at W7.

200 See Brewin, Chris R., Perceived Controllability of Life-Events and Willingness to Prescribe Psychotropic Drugs, 23 Brit. J. Soc. Psychol. 285, 286 (1984)CrossRefGoogle ScholarPubMed (suggesting that medical students are more willing to prescribe psychotropic drugs to deal with patient trauma from events regarded as less controllable).

201 See Id. at 287; Lippman, Abby, Prenatal Genetic Testing and Screening: Constructing Needs and Reinforcing Inequities, 17 Am. J.L. & Med. 15, 47 (1991)Google ScholarPubMed (distinguishing between genetic screening and prenatal screening)

202 See Brewin, supra note 200, at 287.

203 Marteau, Theresa & Riordan, Danny C., Staff Attitudes to Patients: The Influence of Causal Attributions for Illness, 31 Brit. J. Soc. Psychol. 107, 109, 110 (1992)Google ScholarPubMed (suggesting that medical staff have significantly more negative attitudes toward patients who fail to undertake corrective health behaviors after initial consultation).

204 See Marteau, Theresa & Drake, Harriet, Attributions for Disability: The Influence of Genetic Screening, 40 Soc. Sci. & Med., 1127 (1995)CrossRefGoogle ScholarPubMed (arguing that both health professionals and lay groups make critical judgments about women’s roles in the birth of children with disabilities).

205 See Id. at 1128.

206 See Id. at 1129.

207 Id.

208 Id.

209 See Id.

210 See Id. at 1130.

211 In California, New Jersey, and Washington, a child born with a serious genetic disorder can sue a physician for “wrongful life” if it is shown that a prenatal testing error led to the child’s parents being misinformed that the child would not have the disorder. See Curlender v. Bio-Science Laboratories, 165 Cal. Rptr. 477 (Cal. Ct. App. 1980); Procanik v. Cillo, 478 A.2d 755 (N.J. 1984); and Harbeson v. Parke-Davis, 655 P.2d 483 (Wash. 1983).

212 Dena Davis, Genetic Dilemmas: Reproductive Technology, Parental Choices, and Children’s Futures 18 (Routledge 2001); See also Amy Harmon, Burden of Knowledge: Tracking Prenatal Health, New York Times, June 20, 2004, at B1; Elizabeth Weil, A Wrongful Birth?, New York Times, March 12, 2006, at A8.

213 See Holland, Suzanne, Selecting Against Difference: Assisted Reproduction, Disability and Regulation, 30 Fla. St. U. L. Rev. 401, 408 (2003)Google ScholarPubMed (arguing that genetic testing in reproduction could lead to a redefinition of parenthood by emphasizing genetic ties to the exclusion of other forms of family relationships).

214 Green, Rose, Letter to a Genetic Counselor, 1 J. Genetic Counseling 55, 58 (1992)CrossRefGoogle ScholarPubMed.

215 Hillel Steiner, Silver Spoons and Golden Genes, in The Genetic Revolution and Human Rights 207-08 n.13 (Justine Burley, ed., 1999) [hereinafter Steiner, Silver Spoons].

216 Steiner, Hillel, Choice and Circumstance, 10 RATIO 296, 306 (1997)CrossRefGoogle Scholar [hereinafter Steiner, Choice and Circumstance] (arguing that justice requires society to compensate individuals for the effects of genetic and other natural disadvantage and for nothing else).

217 Steiner, Silver Spoons, supra note 215, at 208, n.13.

218 See Steiner, Choice and Circumstance, supra note 216, at 306.

219 See Allen Buchanan, Dan W. Brock, Norman Daniels & Daniel Wikler, From Chance to Choice: Genetics and Justice 288, 290-294 (2000) (discussing ethical issues emerging from genetic biotechnologies).

220 Id. at 288.

221 Id.

222 Id.

223 Mark Henderson, Let’s Cure Stupidity, Says DNA Pioneer, London Times, Feb. 23, 2003, at 13.

224 Id.

225 See Id.

226 See generally, Michael Freeden, Eugenics and Progressive Thought: A Study in Ideological Affinity, 22 Hist. J. 645 (1979).CrossRefGoogle Scholar

227 Muller, Hermann Joseph, et al., Social Biology and Population Improvement, 144 Nature 521 (1939).Google Scholar

228 Id. at 534.

229 “Some day, we will realize that the prime duty, the inescapable duty, of the good citizen of the right type,” Roosevelt wrote in a letter to biologist Charles Davenport, “is to leave his or her blood behind him in the world; and that we have no business to permit the perpetuation of the citizens of the wrong type.” Edwin Black, War Against the Weak 99 (2003) (quoting Letter from Theodore Roosevelt, former U.S. President, to biologist Charles Davenport (Jan. 13, 1913)).

230 Bonnie Steinbock, Preimplantation Genetic Diagnosis and Embryo Selection, in A Companion to Genethics 175, 182 (Justine Burley & John Harris eds., 2002).

231 42 U.S.C. 12101-12213 (2000).

232 Id. at § 12112 (b)(5)(A).

233 42 U.S.C. § 12102 (2000). Major life activities include “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” Id. A “substantial” limitation on the major life activity of working does not allow the individual to perform a class of job activities compared to an average person with comparable skills and training. See Id.

234 A record of disability means that one “has [a] history of or has been misclassified as having [a] record of impairment that substantially limits one or more major life activities.” Id.

235 This third prong of the definition of disability might involve an asymptomatic individual who is denied an employment opportunity because of an employer’s negative attitudes toward that individual’s supposed predisposition for cancer, human immunodeficiency virus (HIV) disease or psychiatric illness. See Moberly, Michael D., Perception or Reality?: Some Reflections on the Interpretation of Disability Discrimination Statutes, 13 Hofstra Lab. L.J. 345, 348 (1996)Google Scholar (reviewing perceived disability case law arising under state regulations).

236 See Blanck, David & Peter Marti, Mollie Weighner, Attitudes, Behavior and the Employment Provisions of the Americans with Disabilities Act, 42 Vill. L. Rev. 345, 401 n. 279 (1997)Google Scholar.

237 See Id. at 364.

238 Stephen F. Befort & Holly Lindquist Thomas, The ADA in Turmoil: Judicial Dissonance, the Supreme Court’s Response, and the Future of Disability Discrimination Law, 78 Or. L. Rev. 27, 32 n.30 (1999).

239 See Blanck, supra note 236, at 369 (1997). Even the Supreme Court has noted that “society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.” Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 284 (1987).

240 See, e.g., Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002) (carpal tunnel syndrome); Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) (myopia); Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999) (high blood pressure); Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999) (monocular vision); Chenoweth v. Hillsborough County, 250 F.3d 1328, 1330 (11th Cir. 2001) (epilepsy); EEOC. v. Sara Lee Corp., 237 F.3d 349, 349 (4th Cir. 2001) (epilepsy); Arnold v. City of Appleton, Wis., 97 F. Supp. 2d 937, 948-49 (E.D. Wis. 2000) (epilepsy); Todd v. Acad. Corp., 57 F. Supp. 2d 448, 449 (S.D. Tex. 1999) (epilepsy).

241 Undue hardship analysis is considered in light of (1) the type and cost of an accommodation; (2) the financial resources of the employer; (3) the financial resources of the particular facility involved; (4) the number of persons employed by the employer overall and at the particular facility; (5) the type of business involved; and (6) the impact of accommodation on the employer’s expenses, resources, and operations. 42 U.S.C. § 12111(10) (2000).

242 U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002).Google Scholar

243 National Council on Disability, http://www.ncd.gov/newsroom/publications/2002/ supremecourt_ada.htm (last visited Oct. 8, 2007) (interpreting U.S. Airways, 535 U.S. at 400- 01).

244 See Abby Lippman, The Genetic Construction of Prenatal Testing: Choice, Consent, or Conformity for Women?, in Women and Prenatal Testing: Facing the Challenges of Genetic Technology 9, 13, 26 (Karen H. Rothenberg & Elizabeth J. Thomson eds., 1994) (arguing that the tendency to use genetic explanations to describe differences between individuals and groups contributes to a belief in genetic determinism).

245 A similar phenomenon takes place with the practice of cosmetic surgery. One psychiatrist who sought a facelift explained to a surgeon her rationale for undertaking the procedure: “Why spend years talking to a therapist about my self-esteem[,] [or working to oppose unjust norms of appearance,] when I can spend two hours on your operating table and eliminate the issue altogether?” Rosen, Christine, The Democratization of Beauty, 5 New Atlantis 19, 23 (2004)Google ScholarPubMed.

246 See Lawrence H. Diller, Running on Ritalin: A Physician Reflects on Children, Society, and Performance in A Pill 101-123 (1998) (discussing the evolution of behavioral diagnoses in children and the social and ethical implications of increasing rates of prescription for psychotropic drugs to treat them).

247 See Hamermesh, Daniel S. & Biddle, Jeff E., Beauty and the Labor Market, 84 Am. Econ. Rev. 1174, 1180-85 (1994)Google Scholar (discussing earning differentials attributable to employee appearances).

248 See Alex Kuczynski, If Beauties Multiply, They’ll Be Plain to See, N.Y. Times, Dec. 28, 2003, at WK4.

249 See, e.g., Linda M. Alcoff, Toward a Phenomenology of Racial Embodiment, in Race 267, 280 (Robert Bernasconi ed., 2001); Michael W. Apple, Between Neo and Post: Critique and Transformation in Critical Educational Studies, in Multicultural Research: A Reflective Engagement with Race, Class, Gender and Sexual Orientation 54, 55-65 (Carl A. Grant ed., 1999); James A. Banks, Multicultural Education: Historical Development, Dimensions, and Practice, in The Handbook of Research on Multicultural Education 3, 17 (James A. Banks & Cherry A. McGee Banks eds., 2004).

250 See Richards, Martin & Ponder, Maggie, Lay Understanding of Genetics: A Test of a Hypothesis, 33 J. Med. Genetics 1032, 1032 (1996)CrossRefGoogle ScholarPubMed (arguing that understanding of scientific genetics is very limited among the public, school children, and those who have received genetic counseling).

251 See Richards, Martin, Lay and Professional Knowledge of Genetics and Inheritance, 5 Pub. Understanding SCI. 217, 217 (1996)CrossRefGoogle Scholar (arguing that public understanding of inheritance contradict scientific explanations of inheritance).

252 See Martin Richards, P.M., Lay Understanding of Mendelian Genetics, 22 Endeavour 93, 94 (1998)CrossRefGoogle Scholar (arguing that lay knowledge of inheritance is grounded in concepts of kinship).

253 Hughes, supra note 14, at 253 (defending the use of “transhuman” genetic biotechnologies within liberal states).

254 Aristotle, Nicomachean Ethics, supra note 120, at 33.

255 See Elliot Sober & David Sloan Wilson, Unto Others: The Evolution and Psychology of Unselfish Behavior 335-36 (1999); See also Alexander J. Field, Altruistically Inclined? The Behavioral Sciences, Evolutionary Theory, and the Origins of Reciprocity 80 (Timur Kuran ed., Univ. Michigan Press 2001) (both arguing that unselfish behavior has not just biological roots but also important environmental causes).

256 See Kant, supra note 128, at 46.

257 Aristotle, Nicomachean Ethics, supra note 120, at 35-37 (describing virtue as an excellent state of moral character).

258 See Id. at 158-61.

259 See Id. at 160-62.

260 “[W]e are by nature able to acquire them, and reach our complete perfection through habit . . . all the faculties with which nature endows us we first acquire the potentialities, and only later effect their actualization.” Id. at 33-34.

261 See Id. at 38-40. 262 The determinants of real-life human achievement cannot, of course, be so straightforwardly typecast or teased apart. What we accomplish is a complex mix of raw talent, environmental circumstances, random life events, and industrious striving. Rawls’s epistemic objection to the notion that social and economic goods should be distributed according to moral desert (understood as conscientious effort) turns on the very unfeasibility of disentangling the extent to which a person’s efforts are attributable to his virtuous character from the extent to which they are the result of valuable but undeserved talents and abilities. “Even the willingness to make an effort, to try, and so to be deserving in the ordinary sense,” Rawls writes, “is itself . . . influenced by [a person’s] natural abilities and skills and the alternatives open to him. The better endowed are more likely, other things equal, to strive conscientiously, and there seems to be no way to discount for their greater good fortune.” Rawls, Theory of Justice, supra note 127, at 274.

263 This point should not be taken to condemn a person who happens to be born with a natural inclination toward empathy and goodwill. I have said that effort is an important part of what we value about human achievement. But effort is not everything. Recall two characters from the 1993 sports film Rudy, based on the true story of Daniel “Rudy” Ruettiger. The first character is Rudy, who dreamed of playing football for the University of Notre Dame. Despite his small stature and lack of talent, Rudy manages, through spirited tenacity, to overcome his natural disadvantages and secure a place as a reserve on the practice squad. The second character is Rudy’s teammate, Roland Steele. Despite Steele’s shoddy work ethic, he is blessed with size, strength, and speed that bring him recognition as team captain and All- American. We applaud Rudy’s grit, but it is Steele’s exploits that capture the attention of the smitten cheerleaders and pro scouts. Although we want to believe that success is something we earn rather than inherit, our kudos go to the Steeles of the world, not the Rudys. What we hardly need the movie to show us is that the meritocracy is a myth.

264 See Fox, Paying for Particulars, supra note 4.

265 See Fox, Paying for Particulars, supra note 4.

266 See Shanley, Mary L., Collaboration and Commodification in Assisted Procreation: Reflections on an Open Market and Anonymous Donation in Human Sperm and Eggs, 36 Law & Soc’y Rev. 257 (2002)CrossRefGoogle Scholar.

267 See Sally Jacobs, Wanted: Smart Sperm, Boston Globe, Sept. 12, 1993, at 1.

268 See Marilee Enge, Ad Seeks Donor Eggs for $100,000, Possible New High, Chi. Trib., Feb. 10, 2000, at 3; Barbara Vobejda, Egg Donation: A Growing Business: Fertility Successes Raise Demand, Price, Washington Post, March 7, 1999, at A1; Tara Weingarten & Mark Hosenball, A Fertile Scheme, Newsweek, Nov. 8, 1999, at 78; See also Fox, Paying for Particulars, supra note 4 (arguing that market exchange of eggs could degrade their worth).

269 See Carey Goldberg, On Web, Models Auction Their Eggs to Bidders for Beautiful Children, N.Y. Times, Oct. 23, 1999, at A11; Bruce Horovitz, Selling Beautiful Babies, USA Today, Oct. 25, 1999, at 1A; Judith F. Daar, Commentary, Physical Beauty is Only Egg Deep, L.A. Times, Oct. 28, 1999, at B11.

270 See Fox, Paying for Particulars, supra note 4.