Introduction
Imagine that a couple visits a fertility clinic. The doctor presents them not with one or two viable embryos, but with fifty (each with a description which predicts the likelihood of developing heart disease, estimated IQ range, height and even personality traits). The couple browses, compares and selects. This sounds like a scene from a science fiction, however it is now edging towards reality. There have been significant advances in two interrelated technologies: In Vitro Gametogenesis (IVG) and polygenetic embryo testing. These two technologies together make what philosophers call the ‘genetic supermarket’ a serious possibility and existing law is not yet ready for it.
The Science: What are we talking about?
IVG is a technique that enables the creation of eggs and sperm from ordinary body cells, such as skin or blood cells via induced stem cells. The most significant feature of it is that it can remove the natural limit on the number of embryos available for fertilisation and consequently it makes possible to create dozens or hundreds of embryos from a single individual. Polygenic embryo testing (PGT-P) then uses genomic data and statistical algorithms to generate risk scores for traits heavily influenced by genes; like common diseases such as diabetes or heart disease, but also non-medical traits such as cognitive ability. Each of them raise important questions. Together, they can make the genetic supermarket real and can expose deep gaps in current laws.
The Ethics
Dignity and the child’s right
The biggest concern is that selecting embryos for non-medical traits, treats future children as products to be designed rather than persons to be welcomed. Habermas and Sandel argue that this objectifies the child’s identity in a way that undermines the equal relationship between parent and child. Article 3(2)(b) of the EU Charter of Fundamental Rights and the human dignity guarantee in Article 1 might be used to protect children legally from such practices. Another argument is Joel Feinberg’s concept of the child’s right to an open future, i.e. children hold certain rights in trust that parents must not foreclose though irreversible prenatal choices.[5] Genetic selection that narrows the child’s future self (to fulfil parental preferences instead of serving the child’s own interest) might violate a right the child cannot yet exercise.
Disability and justice
Selecting against embryos associated with disability sends the message that persons with those conditions are less welcome or less valuable.[6] There is a law that might apply in this case; namely the UN Convention on the Rights of Persons with Disabilities, which requires states to combat stigma and promote equal dignity of disabled people. Another argument is that if polygenetic optimisation is available only to the wealthy, it will create an even bigger gap in society between social classes with tremendous inequalities.
What Rules Exist?
There are huge gaps in the current legal system in this area of law. At the international level, the Oviedo Convention prohibits genomic modifications for non-therapeutic purposes, but its application to embryo selection before implantation is ambiguous and major states including the US are not parties.[8] UNESCO’s 1997 Declaration on the Human Genome calls for states to prohibit practices contrary to human dignity but it is non-binding.
There are huge differences in national approaches.[10] The UK’s HFEA permits PGT within defined therapeutic bounds. Germany’s Embryonenschutzgesetz takes a near-categorical restrictive approach which reflects on its post-war constitutional sensitivities. The United States has no comprehensive federal legislation about genomic modification of embryos and has allowed a commercially driven permissiveness to develop. This legislative difference enables reproductive tourism: people who want services that are prohibited at home can simply travel to more permissive jurisdictions, which completely undermines the protective Internet of stricter national laws. At EU level, the Charter provides normative scaffolding but no operative regulatory mechanism; the AI Act may apply to polygenetic scoring algorithms as high-risk AI in healthcare, but it still hasn’t been tested.
Towards Regulation
Three broad regulatory approaches are available. A prohibitionist approach (just like in Germany) that protects against the clearest harms but it still risks displacing activity to less regulated jurisdictions. A permissive model with independent oversight (like in the UK) which allows flexibility and can adapt to scientific developments, but its effectiveness depends on the quality of the regulator and the clarity of its criteria. The third and most necessary approach is an internationally coordinated binding framework. Without it, the least restrictive jurisdiction sets the effective global standard.
Conclusion
The genetic supermarket is not a distant hypothesis. Polygenetic embryo scoring is already commercially available in more permissive jurisdictions, and IVG research is advancing rapidly. Law could not keep pace. Existing legal frameworks are either non-binding, incomplete or inapplicable to the combination of technologies at issue. An international coordinated response is needed. The kind of society we choose to be is at stake when the market opens.
[1] V.G. Wesevich, C. Arkfeld and D.B. Seifer, 'In Vitro Gametogenesis in Oncofertility: A Review of Its Potential Use and Present-Day Challenges in Moving toward Fertility Preservation and Restoration' (2023) 12(9) Journal of Clinical Medicine 3305, doi:10.3390/jcm12093305.
[2] M. Siermann, O. Valcke, J.R. Vermeesch, T. Raivio, O. Tšuiko and P. Borry, 'Limitations, Concerns and Potential: Attitudes of Healthcare Professionals toward Preimplantation Genetic Testing Using Polygenic Risk Scores' (2023) 31(10) European Journal of Human Genetics 1133, doi:10.1038/s41431-023-01333-9.
[3] J. Habermas, The Future of Human Nature (Polity Press, 2003); M. Sandel, The Case Against Perfection: Ethics in the Age of Genetic Engineering (Belknap Press of Harvard University Press, 2007).
[4] Charter of Fundamental Rights of the European Union [2012] OJ C 326/391, Art. 1 (human dignity), Art. 3(2)(b) (prohibition on eugenic practices), Art. 21 (non-discrimination).
[5] J. Feinberg, 'The Child's Right to an Open Future', in W. Aiken and H. LaFollette (eds), Whose Child? Children's Rights, Parental Authority, and State Power (Totowa, NJ: Rowman & Littlefield, 1980) 124–153.
[6] A. Asch, 'Disability, Bioethics, and Human Rights', in G.L. Albrecht, K.D. Seelman and M. Bury (eds), Handbook of Disability Studies (Sage, 2001) 297; A. Buchanan, D. Brock, N. Daniels and D. Wikler, From Chance to Choice: Genetics and Justice (Cambridge University Press, 2000).
[7] UN Convention on the Rights of Persons with Disabilities, GA Res 61/106 (13 December 2006), Art. 8; Convention on the Rights of the Child, GA Res 44/25 (20 November 1989), Art. 3.
[8] Council of Europe, Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Oviedo Convention), ETS No. 164, opened for signature 4 April 1997, entered into force 1 December 1999, Art. 13.
[9] UNESCO, Universal Declaration on the Human Genome and Human Rights, adopted by the General Conference of UNESCO at its 29th Session, 11 November 1997, Art. 11.
[10] Human Fertilisation and Embryology Act 1990 (as amended by the Human Fertilisation and Embryology Act 2008), s 3ZA; Embryonenschutzgesetz (Embryo Protection Act) of 13 December 1990 (Germany), BGBl. I S. 2746, § 1; Dickey-Wicker Amendment, Pub. L. 104-99, § 128 (1996).
[11] Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence (AI Act) [2024] OJ L 1689, Annex III (high-risk AI systems in healthcare context).
[12] Nuffield Council on Bioethics (in partnership with the Future of Human Reproduction Project, University of Lancaster), In Vitro Gametogenesis: A Review of Ethical and Policy Questions (London: Nuffield Council on Bioethics, July 2025), available at .