Sagit Ziskind_ Research Agenda
GENETIC CONTROL OVER THE CHARACTERISTICS OF OFFSPRING AND ANALOGICAL REASONING
Analogical thinking in law takes existing legal material as the basis for reasoning. The basic idea is
that if the law treats A in a particular way, and B is sufficiently similar to A, then B should be treated
in the same fashion. A number of scholars, most notably Cass R. Sunstein, have emphasized the virtues
of analogical reasoning in resolving difficult legal and moral questions.1 Sunstein argues that reasoning
by analogy has democratic virtues: it allows societies to reach practical agreement in areas of moral
controversy. According to Sunstein, people with diverse perspectives can often reach agreement on an
analogy (i.e., that A is like B) even if they disagree on supporting rationales, high-level theories or
governing principles.
In the proposed research, I wish to explore the role that analogical reasoning can play in addressing the
legal, social and ethical questions raised by genetic and reproductive technologies that allow parents to
control the genetic characteristics of their offspring.
There is no reason to think that the method of analogical thinking is ideal, or that it can, by itself,
answer all the questions raised by technologies of genetic control. Yet, working by analogy seems to
offer at least three distinct advantages.
First, analogical reasoning in law has the potential to accommodate the various values, interests and
tensions raised by practices of genetic control over offspring’s characteristics. Most commentators who
attempted to resolve questions about the scope of the right to control the genetic traits of children
utilized a “top-down” approach. That is, they began by defending a broad theory or an abstract
principle (autonomy, justice, Kantian ethics) and then proceeded to evaluate through the lens of this
theory what practices of genetic control should be legitimate. A “top-down” analysis is problematic
because there is no obvious reason why one principle rather than another should be decisive in
designing regulation. As opposed to a “top-down” methodology, analogical reasoning does not rely on
any single or particular high-level theory about the good or the bad. It relies instead upon existing
rules, as well as principles and assumptions implicit in those rules. As such, analogical reasoning can
minimize disagreements over what principles should be used to design policy, and is much more likely
to embrace a broader set of values.
Second, because reasoning by analogy assesses and relies on relevant similarities between new cases
and existing precedents it can ensure consistency in our treatment of parents, children and reproductive
rights.
Third, and perhaps most important, the analogical method of thinking offers the benefit of neutrality.
More specifically, reference to analogies allows judges to justify certain outcomes in a relatively
objective, uncontroversial and symbolically-sensitive way. For example, compare non-analogical to
1
Cass R. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741 (1993); Cass R. Sunstein, Legal Reasoning and Political Conflict 62100 (1994); Emily Sherwin, A Defense of Analogical Reasoning in Law, 66 U Chi. L. Rev 1179 (1999).
Sagit Ziskind_ Research Agenda
analogical reasoning in defense of the right to control the genetic traits of offspring. A non-analogical
justification would look somewhat like this: “The autonomy interest of parents in preventing the birth
of children with genetic defects should take priority over the state interest in protecting fetal life and
the interest of potential children not to be treated as means.” In contrast, analogical justification would
look somewhat like this: “The right to abort on genetic grounds is not radically different from the right
to abort on social grounds and therefore deserves recognition.”
Analogical reasoning might also be used in support of some sort of restrictive policy. A court might
say: “Imposing some restrictions on the ability of parents to control the genetic traits of their offspring
is analogous to the ban on baby selling; they are both means of reinforcing the idea that children are
not the property of their parents and should be treated with respect.”
True, in the end, even analogical reasoning cannot avoid reflecting a value judgment or commitment to
a theory of some sort. Yet, since analogical reasoning relies heavily on current law, it helps make a
court’s ruling seem fairly objective (and therefore legitimate), rather than reflecting the judges’ own
moral positions.
The law shapes our social and ethical sensibilities; it affects how parents perceive their legal and social
obligations. The methods we use to state our reasons for recognizing, or declining to recognize, the
interest of parents to control the genetic traits of their unborn children are important for this reason. A
clear determination by the court that the interests of parents take precedence over the interests of
offspring may be taken a message of endorsement – as a signal that that preventing the birth of certain
children is a legitimate course of action, even a sign of responsible parenthood. Such a determination
might have unfortunate effects on norms by implicitly encouraging practices of genetic control, i.e.,
increasing social pressure to prevent the birth of children with “undesirable” genetic characteristics.
Thus, analogical reasoning is a strategy for balancing competing values and interests without making
clear and unmistakable statements about the inferiority of some values or interests – a statement that is
difficult for judges to make, and for people to accept.
How can questions about the scope of the right to control offspring’s characteristics be resolved by
reference to current law? What are the principle virtues and disadvantages of using analogical
reasoning in the context at hand? Is the lack of some deep and central theory about the reasons for
recognizing, or declining to recognize, the interest of parents to exercise control over their offspring’s
traits, necessarily a problem? Can the tension between respecting the autonomy of parents and
expressing desirable values in our rules (for example, the equal worth of all, tolerance of differences,
appropriate valuation of children) be relieved through reasoning by analogy? And in what way can
analogical reasoning serve democratic ideals? This research aims to advance our understanding of how
analogical reasoning can make the law appear neutral, and serve to express judgments about
appropriate values. The research will also help clarify how best to justify policy choices in an era of
genomics.