Catholic University Journal of Law and Technology

Catholic University Journal of Law and Technology


Every four and a half minutes a child with a genetic birth defect is born in the United States. For some, these conditions are treatable and manageable, but sadly for others, they are a death sentence. Congenital malformations and chromosomal abnormalities are the leading cause of infant mortality. CRISPR-Cas9 presents hope for the future, a liberation from the heritable genetic shackles that a child would otherwise be trapped in. With such optimism for future applications of germline gene editing, there are also great concerns with what national and global limitations and auditing must be in place to permit “genetic hedging.”

Policy makers and the public must consider the fact that human germline gene editing does not just apply to family lines of those that consciously engage in genomic modification. It would eventually change the heterogeneity of humankind in the next stage of factitious evolution. Whose choice is it really to adopt this technology, and in what circumstances should the use of “genetic scissors” be morally, ethically, and legally permitted? May a parent consent on behalf of their unborn child? Will fetal interests supersede those of their parents? Or will government set aside individual, generational, and parental autonomy by mandating medical intervention in certain genetic circumstances?

This note debates current and potential American regulations on embryonic germline gene editing in the near future, and discusses the constitutional and ethical concerns that policymakers (and CRISPR-Cas9 critics) will appraise (and be promulgated to safeguard against). For American regulation on germline gene editing, three events must occur: 1) The Federal Drug Administration (FDA) rider must be repealed in future congressional appropriations bills, allowing for the FDA to consider clinical trials of embryonic research; 2) The FDA must adopt strict, narrow regulations allowing application of CRISPR in only a finite number of instances; and 3) the nature of an embryo must be firmly classified as quasi-property, therefore lacking constitutional standing as a legal “person.”

There remains an issue: as fetal personhood legislation strengthens and becomes far more pronounced throughout the country, simultaneously, and more inconspicuously, so does embryonic personhood. Agency rights and constitutional protections attach upon the categorization as a “person,” no matter how nascent life may be. If CRISPR were to be implemented in the wake of embryonic categorization as a recognized individual, the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment would be directly implicated.



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