Excerpted From: Sonia M. Gipson Rankin, Would You Make it to the Future? Teaching Race in an Assisted Reproductive Technologies and the Law Classroom, 56 Family Law Quarterly 1 (2022-2023) (109 ) (Full Document)

SoniaMGipsonRankinWould you make it to the future? For the last five years, I have started my Assisted Reproductive Technology (ART) lecture in Family Law with this question. Students take the query seriously. They ponder their lived experiences such as home training, medical history, education, financial well-being, personality traits, work ethic, and social graces when determining if they would have the “model DNA” someone might select in a future society. The good-natured jokes about being nearsighted, having a pitiful jump shot, and wearing Invisalign turn reflective when someone raises the question: Would someone in the future select my race?

Eight million children worldwide have been born via ART. In 2019, out of every 100 babies born in the United States, two were created through assisted conception. And by some estimates, this percentage is expected to drastically increase in the next two decades, with scientists and epidemiologists predicting that by 2040, most babies will be born using assisted reproductive technology. The study of ART introduces students to the essentials in science, medicine, law, and ethics that form the law of reproductive technologies. With innovations in germline genetic technologies adding new opportunities for disease prevention, the impact and import of the field cannot be overstated. Courts will continue to address complicated claims regarding parental rights and responsibilities in an era where reproductive technologies such as in vitro fertilization and surrogacy distribute conception, gestation, and parenthood among a variety of participants, with decidedly racial implications. Family law, which may include ART, is considered a bar prep course at many law schools. In addition, students take family law because of experiences in their personal lives or because they want to practice in this field. Whether personal or professional, most law students will interact with family law during their legal education, and reproductive technology will be included in their future practice and lives. It is critical that students explore the race, gender, sexual orientation, and class implications in every facet of ART.

By creating Assisted Reproductive Technology and the Law, I assembled a curriculum that addresses medicine, science, and ethics of human procreation; procreational liberty; reproductive tourism and cross-border reproductive care; family law issues; the act of choosing children's traits; posthumous reproduction; ART contract drafting; the regulation of reproductive medicine and the fertility industry; and how race, gender, and sexual orientation impact all of these decisions. When students complete the course, they will know the law of ART and see the racial implications within it. This helps students critically analyze how society decides who makes it to the future.

In this paper, Section I discusses how race connects to family law. Section II explains the relationship of cognitive dissonance theory and color blindness ideology to racial inequality in family law and how this connects to ART. Section III provides the framework for race-centered learning outcomes, a relevant rubric for reflection papers, and examples of theoretical literature that address race and ART. Section IV concludes by addressing how these skills and assessments in our family law curricula can impact systemic change in the practice of family law and the legal academy.

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The title of this paper was derived from the 1997 science fiction film Gattaca, which depicted a future society that used reproductive technology and genetic engineering to create people with desirable physical and psychological characteristics. “Would You Make It to the Future?” wonders what kind of society we will be if current structural racism realities permeate into the world to come. Legal education must be at the forefront of ART. Our students will serve as crafters and litigators of ART contracts and decisions, policymakers and drafters of legislation, and will hold the hands of clients planning the biggest decisions of their futures. Helping students unpack the impact of race in family law demonstrates the academy is responsive to realities in the practice of law. Teaching about how race relates to the law and practice of ART can serve as a crucial step to unpacking cognitive dissonance and understanding how race impacts the legal system. Professors must expose the fallacies within the law so that students can learn how to criticize the law and become excellent advocates for their clients. A racial cognitive dissonance lens enables students to review the effects of ART and the legal system more broadly, given the role of technology in the law that did not exist when the law was created. Understanding cognitive dissonance and cultural competency can help reduce legal issues in family law and ART. By improving their awareness of the role of race, culture, gender, and sexual orientation in the ART process, the better law students will be at serving their clients' unique needs.

Associate Professor of Law, University of New Mexico School of Law.