The decision to undergo gene therapy in utero for the sake of a fetus should legally rest with the pregnant woman rather than the judiciary or the legislature. Part I of this article provides an overview of the current scope of gene therapy. Part II discusses previous court decisions that either granted or denied petitions for involuntary prenatal intervention. Part III analyzes three reasons why the courts should not impose gene therapy on pregnant women as the technology becomes available. First, a policy that mandates gene therapy would place an undue burden on pregnant women and violate the Equal Protection Clause of the Fourteenth Amendment. Second, a policy that mandates gene therapy would disparately impact women based on race, gender, and socio-economic status. Finally, public policy demands resistance against a policy that mandates gene therapy because of the ethical dilemmas inherent in a judicial determination of which "abnormalities" should be "fixed." Pregnant women should have the right to decide whether or not to undergo gene therapy in utero regardless of the seriousness of the disability, the effectiveness of the therapy, the intrusiveness of the procedure, or the reasons for resisting gene the therapy.
Gene Therapy: Legal and Ethical Issues for Pregnant Women ,
47 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol47/iss1/6