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May 26, 2010


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Carter Dillard

Hi Jessie,

I think most modern legal academic debates on the right to procreate, and the derivative rights you question, begin with the framework laid out in John Robertson’s CHILDREN OF CHOICE (1994). Robertson takes a broad view of the constitutional right to procreate, both in terms of the scope of the right and its weight relative to competing rights and interests. There Professor Robertson defends a thesis for what he calls the primacy of procreative liberty, in which procreative liberty involves the “freedom to decide whether or not to have offspring and to control the use of one’s reproductive capacity,” and that freedom is to “be given presumptive priority in all conflicts, with the burden on opponents of any particular technique to show that harmful effects from its use justify limiting procreative choice.”

Robertson’s work is extensive, and fleshed out in several articles written since CHILDREN OF CHOICE was published – some of which address your specific questions. Despite the primacy thesis I have found Robertson’s work highly nuanced and would not assume that it protects all of the derivative behaviors you describe. Though I assume he would – in most cases – defend a right of non-interference with one’s access to procedures like IVF.

Many have questioned Robertson’s view of the right.

In my own work I have developed a narrower view of the right, starting with a concept of procreative behavior (“any voluntary act taken by an individual that is either one of the two most proximate causes of the conception of a future person or persons, with such person or persons eventually being born”) and moving towards doctrine, rather than trying to derive a definition of the protected behavior from doctrine.

In Future Children as Property, 17 Duke J. Gender L. & Pol’y _ (forthcoming, 2010; recommended reading on the Legal Theory Blog) I argue that the most common conception of the legal right to procreate (which I ascribe to Robertson), the one believed to be protected by the U.S. Constitution, tends to treat future children largely as a class of property that is assigned to prospective parents. Regarding your point on custody, I argue that rights work in the other direction, so to speak. In Child Welfare and Future Persons, 43 Ga. L. Re v. 367 (2008) I argue that a prospective parent has a moral, and can have a legal, duty to be fit when he or she has a child, that arises from or creates correlative claim-rights shared by the state and prospective children, and that this duty could be codified by statutorily authorizing courts to issue temporary no-procreation orders. In other words, the right to procreate does not create a right to parent; it is conditioned upon it. In Rethinking the Procreative Right, 10 Yale Hum. Rts. & Dev. L.J. 1 (2007) and Valuing Having Children, 12 J.L. & Fam. Stud. _ (forthcoming, 2010; recommended reading on the Legal Theory Blog) I reexamine the dominant conception of the moral and legal rights to procreate, first arguing that both rights are narrower than commonly understood, and secondly, that the moral right protects a unique and satiable objective value – the value of self-replacement. The most surprising (and perhaps important) result of this approach is that the right diminishes to a liberty interest after one has procreated (had one, or some would say two, children).

Note Robertson’s “harm” limitation, above. This gets us into a metaphysical puzzle called the nonidentity problem. In Procreation, Harm, and the Constitution, 10_ Nw. L. Rev. Colloquy __ (2010) I examine what it means to “harm” a child by having them, and defend a constitutional limit on the right to procreate based on that harm.

Mary Dudziak

Thanks for this interesting discussion. Part of one of my con law exam questions (which I am now grading...) has to to w/ the constitutionality of (hypothetical) restrictions on access to IVF.

A question for Carter: could you fill in what you have in mind by a "duty to be fit"? Is this a duty related to behavior during pregnancy (e.g. drug use), or does it relate as well to one's physical status, including existence of disabilities/limitations that might be passed on genetically? Both issues, of course, raise many questions/concerns, and it would be helpful to know what comes under this duty, and how you take up moral/legal objections to this idea.

Many thanks.

Jessie Hill

Thanks for the thoughtful comments. Carter, I am familiar with some of your work and of coruse John Robertson's, but your concise summary and analysis was very helpful. I guess one of the things I still find mystifying is, despite how well-established the right seems to be within constitutional doctrine, and despite the mounds of thoughtful writing on the subject from the perspectives of moral philosophy and bioethics, the doctrinal contours of the right to procreate remain extremely blurry, at least I think this is true, not only at the Supreme Court level but also to the extent that lower courts have grappled with it.

Carter Dillard

Hi Mary – what a great con law exam question!

Regarding “(un)fitness,” I use the standard a state would have to show to deprive parents (usually because of abuse or neglect) of their constitutional right to the care, custody, and control of their living offspring, i.e. the state statutory “minimal” criteria to maintain parental rights. See Miss. Code Ann. § 93-15-103; Troxel v. Granville, 530 U.S. 57, 68–69 (2000) (“[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family. . . .”).

So, as I argue in the article, if the state could show that a prospective parent is unfit (i.e., cannot provide “minimal” care) to parent and therefore legally incapable of having custody of a child, and that prospective parent wished to procreate and have custody of the resulting child, the state could limit the right to procreate until the prospective parent became legally fit to parent.

The issues comes up – in a very clear way – when courts have to deal with the possibility of parents, who have been adjudged legally unfit because of prior abuse or neglect, having more children. Courts have split between issuing no-procreation orders, and no-custody orders which permit the state to seize any child born. I argue that the former – if issued under carefully crafted statutory authority rather than the inapposite general probationary authority currently used – would be constitutional and preferable to the latter.

This of course leaves it to state legislatures to define parental fitness. And fitness can be based in part on physical status because of the relationship between that status and the ability to care for the child. See Elizabeth S. Scott, Sterilization of Mentally Retarded Persons: Reproductive Rights and Family Privacy, 1986 Duke L.J. 806, 829) (“The right to procreate is the right to produce one's own children to rear. The right presumes and indeed requires an intention as well as an ability to assume the role of parent.”) It also may leave open the possibility of the state using evidence of behavior during pregnancy to determine fitness. See, e.g., In re Troy D., 263 Cal. Rptr. 869, 874 (Ct. App. 1989) (upholding dependency action removing infant because of mother’s prenatal use of dangerous drugs).

As you point out, this raises lots of moral and legal issues. But as I suggest in the piece I think the difficult questions revolve around what the standards for parental fitness are and should be (the sharing of care-giving, etc.), and not when to impose those standards. To the extent the standards are settled, I argue they should be imposed ex ante rather than ex post.

Carter Dillard

Hi Jessie,

I certainly agree and am equally mystified! Creating other humans seems to me to be a rather (the most?) important (influential) form of behavior.

I.G. Cohen

I have a pair of old papers on the subject of the opposite right, the right not to procreate, as a matter of constitutional law ("The Constitution and the Rights Not to Procreate," 60 Stan. L. Rev. 1135 (2008)) and as a more normative matter ("The Right Not to Be a Genetic Parent?" 81 S. Cal. L. Rev. 1115 (2008)) that you might find useful. Both papers begin with a framework that conceptually unbundles the rights to procreate and not to procreate to rights to be/not be genetic, legal parents, and then try to determine which sticks are normatively and constitutionally well-grounded. While my focus is on the right not to procreate, I spend some time discussing Skinner and the right to procreate as well.

Jessie Hill

Glenn, Thanks for the references. I believe I looked at those a while ago but not when I was thinking about this issue. I will check them out again.

air yeezy

The human who likes smiling, his life is certainly happy and romantic!

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