Abstract

Many societally accepted techniques were quite controversial at inception and for decades after. For example, historically, dialysis was “unnatural,” vaccination was “the poisoned quill,” and artificial insemination was akin to adultery. Despite social and cultural hurdles, the aforementioned medical techniques have today attained overall public acceptance, permissive legal treatment, and even health insurance coverage in some cases.

Unlike many now-routine treatments like in vitro fertilization (IVF), egg freezing, and organ transplantation, which flourished without significant governmental intervention, today’s controversial medical treatments, especially those involving reproductive genetic innovation, face intense regulatory barriers. Reproductive genetic innovation, which is the combination of IVF and genetic substitution or modification, is also notable for being accompanied by the continued call of scientists, regulators, and individuals for a “societal discourse.”

Yet, despite the repeated calls, there is still no clarity as to the concrete structure of a “societal discourse” or how it could be fostered. This Article adapts the tools of American and comparative administrative law and public participation to prescribe methods for a societal consultation on reproductive genetic innovation. Specifically, it draws on notice-and-comment rulemaking, agency public meetings, the recent rollout of COVID-19 vaccines, the “Consensus Development Review” used in the normalization of liver transplantation, and citizens’ juries to provide substantive suggestions for the societal discourse that scientists, commentators, and federal employees have been requesting for decades.

Document Type

Article

Publication Date

Summer 2022

Publication Information

74 Administrative Law Review 481-538 (2022)

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