SMU Law Review


The Nobel Foundation emphasized the significance of genetic innovation to society, science, and medicine by awarding the 2020 Nobel Prize in Chemistry to “the CRISPR/Cas9 genetic scissors.” This Article focuses on “reproductive genetic innovation,” a term that includes cytoplasmic transfer, mitochondrial transfer, and germline or heritable gene editing techniques that are all categorized as “experimental” in the United States. These techniques all use in vitro fertilization, a legal and widely available practice. Yet reproductive genetic innovation has resulted in controversy and numerous barriers including a recurring federal budget rider, threats of federal enforcement action, and the unavailability of federal funding.

At its inception, organ transplantation faced similar controversy and barriers, including prosecutorial scrutiny of surgeons and lawsuits against surgeons for the wrongful death of patients. Now, insurance coverage of organ transplantation and the opt-in system for organ donation commonly available through Departments of Motor Vehicles indicate that organ transplantation is societally accepted and routine. At first blush, organ donation and reproductive genetic innovation have little in common due to factors such as disparate senses of urgency, matters of reproductive choice, and heritable changes. Yet despite these differences, the techniques have important and underappreciated similarities such as the use of foreign biological material, genetic transfer, concerns about allocation, and extensive controversy at inception.

After highlighting these underappreciated scientific and historical similarities, the Article argues that because organ transplantation and reproductive genetic innovation share critical similarities, society should use the lens of organ transplantation when considering the legalization of reproductive genetic innovation. Using this lens will help the discourse and analysis overcome the “Yuck Factor” or moral panic that currently accompanies reproductive genetic innovation.

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