Choosing Your "Healthiest" Embryo After Dobbs: Polygenic Screening and Distinctive Challenges for Truth in Advertising and Informed Consent.

Abstract

Polygenic embryo screening ("PES") analyzes embryos for hundreds or thousands of genomic loci to generate risk scores that estimate genetic susceptibility to conditions and traits compared to the general population. The technology is commercially marketed directly to consumers. Companies focus mostly on medical conditions, sometimes in ways that oversell its advantages and efficacy, encouraging fertility patients to "choose your healthiest embryo" and "protect your future child from genetic risks." The advertising of PES trades on norms of children's health and good parenting and reinforces those normative ideals. While it is easy to assume PES will be constrained in practice by its clinical limitations, high cost, and health burdens associated with in vitro fertilization, inflated marketing claims could exacerbate other legal and social forces to expand its use. Since the fall of Roe v. Wade, over a dozen states have banned abortion, forcing some people to give birth to children they would not otherwise have had. Others who are denied the abortion choice may seek to recover this lost sense of agency over their reproductive lives in other ways. This article examines the risks of decision fatigue and choice overload that PES may create in prospective parents, and the distinctive challenges that PES poses for legal liability over matters of truth in advertising and informed consent.