Testing Sex

Abstract

A simple blood sample taken from a pregnant women can now determine a fetus's sex beginning at seven weeks of pregnancy. In the next decade, these prenatal genetic tests, which are increasingly paid for by health insurance plans, will permit expectant parents to learn much more information about their potential child. Although new "non-invasive" prenatal genetic tests are largely unregulated, their popularity and growing availability have spurred Congress, as well as legislatures in over twenty states, to consider prohibiting abortion for reason of fetal sex. This article describes the laws relevant to prenatal genetic testing and explores the purported justifications for legislative bans on sex-selective abortion. The article demonstrates how sex-selective abortion bans co-opt longstanding women's rights claims and why the constitutional and empirical rebuttals offered by abortion rights supporters have not been persuasive. This article concludes by considering how law, medical ethics, and prenatal diagnosis intersect and what regulatory options reproductive health advocates might have moving forward.