Is There a Constitutionally Protected Right to Use Reproductive Technologies?

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4 Responses

  1. Jessie Hill says:

    Hi Glenn, Thanks for the shout-out! I obviously agree that it’s a complicated doctrinal question. I am wondering why you haven’t mentioned the idea that the right to procreate might also be found in those decisions that set out the right not to procreate – ie, Roe and its progeny. After all, the right is often described as the right to decide *whether* to bear or beget a child – as opposed to the right *not* to have a child. Though those cases may be of little help in figuring out what is meant by “procreate” and how broad a right to procreate might be, they do imply that there is such a right and that it is at least as broad as the right not to procreate. No?

  2. Glenn Cohen says:

    Thanks Jessie.

    Roe is a possible place from which to try and find a constitutional “right to procreate.” That said for reasons I’ve discussed in this paper,, again focused on the “right NOT to procreate,” I am actually fairly skeptical in deriving that right from Roe.

    The short version of the argument is that when the rights to and not to procreate are unbundled in a Hohfeldian way into their constituent sticks as I have argued they ought to be — a potentially constitutionally protected right to be and not to be a gestational parent, a genetic parent, and a legal parent — I think the most plausible reading of Roe is to read it as implying a more limited right to become or (continue being) a gestational parent, i.e., a right against forced abortion, but not a right to become a genetic parent through accessing reproductive technology use. I have offered such an argument explicitly as to whether the right NOT to be a genetic parent is derivable from Roe in the aforementioned piece, but I would probably need to adapt some of those arguments to answer your claim(one thing it makes me wonder is whether there is an easy way to understand Missouri v. Danforth if one thinks there is a constitutionally protected right to be a genetic parent derivable from Roe) as well as add some new ones to completely cash out such a claim, so your point is well taken.
    My off the cuff sense is also that a derivation from Roe is more plausible in cases involving, for example, a ban on purchasing sperm where the intended mother will not be allowed to gestate the fetus to which she is also the genetic mother than in other reproductive technology usages that do not involve gestation. Again, great question!

  3. Joe says:

    Do any of us actually have a “right” to procreate? There seem to be many people who want to procreate and can’t, while others don’t want to procreate and seem to do it with ease. I don’t think this is something we can codify in law.

  4. It seems to me that any concept of what is morally and ethically right is abandoned and lost.

    I am not sure there is even a “Politically Correct” stance on the subject.

    So in a vacuum of standards, caselaw is the new moral standard?

    Leonard Henderson, co-founder
    American Family Rights
    “Until Every Child Comes Home”©
    “The Voice of America’s Families”©