We national reporters have been asked to provide in a few pages such a range of information about the law and practice of medicine generally, genetic and artificial reproductive techniques specifically, and related family law and human rights issues that probably no country's reporter could pretend to have succeeded. We reporters for the United States, particularly, must stress the limitations of our report at the outset. It is difficult to summarize the American law and practice because they are so extraordinarily various and dynamic. There are several reasons for this, most of which will in uncanny ways confirm many of the foreign observer's preconceptions about American law.
First, American law and practice are various because American government remains in important ways genuinely federal. Family law has traditionally been confided to the fifty state governments, each of which is largely free to regulate reproductive technologies as it wishes. Second, law and practice are various because American government remains in important ways committed to the principle of separation of powers. This means that the power to regulate those technologies is divided among the various branches and agencies of the federal and the state governments.
Third, law and practice are various because of a series of inhibitions on governmental regulation of social life. It is well known, for example, that Americans have historically had - and in telling ways retain - a generally laissez-faire, anti-dirigiste view of government's role. That orientation is reinforced by our common law tradition. That tradition prefers a gradual rather than a pre-emptive legal response to novel social problems in which courts deal with aspects of the problem only as each aspect presents itself, waiting until the extent of the problem has become apparent before attempting a broad solution to it. Yet further inhibiting governmental regulation of reproductive technology is the power of rights thinking and - more specifically - the specter of Roe v. Wade, the controversial 1973 case in which the United States Supreme Court held that the states' power to regulate abortions is severely constrained by women's constitutional right to make decisions about reproduction. That decision provoked such intense and sustained criticism of 'judicial legislation' that the Court has generally avoided taking the policymaking initiative in other cases involving controversial biomedical issues. Nevertheless, the potential for Roe- like preemptive judicial action remains a significant influence.
Publication Information & Recommended Citation
Schneider, Carl E., co-author. "Genetics and Artificial Procreation in the U.S.A." L.Wardle, co-author. In Biomedicine, the Family and Human Rights, edited by M.-T. Meulders-Klein et al., 55-86. The Hague: Kluwer Law International, 2002.