Is There a Constitutionally Protected Right to Use Reproductive Technologies?

A few months back Jessie Hill had a blog post entitled “My so-called right to procreate” asking about the scope of procreative liberty protected by the Constitution.  I wrote about this issue in passing in a paper devoted to the opposite question, whether the constitution protect a right NOT to procreate (or what I prefer to think of as rights not to procreate, separable sticks in a bundle encompassing the right not to be a legal, gestational, or genetic parent – indeed as I pointed out there, I think the right to procreate should be similarly unbundled).  In a new paper entitled Well, What About the Children?: Best Interests Reasoning, the New Eugenics, and the Regulation of Reproduction, as part of a larger project on the justifications for the regulation of reproduction I briefly address a slightly narrower issue than the one in Jessie’s post, whether there is a negative liberty fundamental right to non-interference with reproductive technology use.  I thought I would set out and expand on that discussion here and see what other readers thought.

My own view is that the constitutional status of state interventions preventing access to reproductive technologies (either directly, e.g., prohibitions on access to reproductive technology for women over age 50 or through regulation, or indirectly, e.g., parental fitness screening for surrogacy users) is deeply under-determined by the existing doctrine.  The only U.S. Supreme Court decision to consider whether there is a fundamental right to become a genetic parent, Skinner v. Oklahoma, 316 U.S. 535, 536-39 (1942) (finding a fundamental right that was violated by physical sterilization of individuals convicted three or more times of crimes of moral turpitude but not embezzlement) is subject to a myriad of possible interpretations especially as applied to reproductive technologies.

Here are a few:

Skinner protects as a fundamental right any use of reproductive technologies that simulates that which would be achievable by coital reproduction in the fertile individual (not, therefore, something like genetic engineering). John Robertson is the person I most closely associate with this view (although his view has considerably more nuance that I can get across here).

On the other extreme, one might argue that because Skinner itself was premised on an Equal Protection claim not a substantive Due Process one and thus there is no substantive Due Process right to Procreate at all. Cf. VICTORIA F. NOURSE, IN RECKLESS HANDS: SKINNER V. OKLAHOMA AND THE NEAR-TRIUMPH OF AMERICAN EUGENICS 165 (2008) (concluding that “both liberals and conservatives have made a mistake” in their reading of Skinner because the case was “neither argued nor decided as a case about rights in the sense that we use the term ‘fundamental right’ today).” That said, over the years the Court has lumped Skinner in with its substantive Due Process jurisprudence so often that the time may have passed for hewing to this distinction.

In between there are several other positions:

Focusing on Justice Douglas’ justification in Skinner (“There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.”) and especially the words “irreparable injury” and “forever deprived,” Skinner stands for a limited Due Process right against physical sterilization and not a more general right to procreate.  Such an interpretation is buttressed by the heightened protection against state interference with bodily integrity, as evident in informed consent, abortion rights, and elsewhere.

In Skinner the state was taking away something and individual already had – reproductive capacity – rather than preventing assistance to reproduce, and it is the former element that made the right at issue there a fundamental right.  On this view only interference with coital reproduction and not the reproductive technology restrictions impinge upon a fundamental right

Skinner protects as fundamental rights only non-commercial forms of reproduction but not forms that require payment, in analogy to the way that Lawrence v. Texas seems to subject the criminalization of sexually intimate activities to heightened constitutional scrutiny but that does not mean the state is subject to the same scrutiny if it criminalizes paying for those activities, or at least so suggests the Lawrence majority. 539 U.S. 558, 577-79 (2003).; but see id. 592, 603 (Scalia, J., Dissenting) (attacking this distinction).  Here, in analogy to my prior commodification discussion, one might press on whether commercialization corrupts (or more neutrally transforms) reproduction as much as it does sexuality in the prostitution case.

Still other readings are possible: See, e.g., Carl Wellman, MEDICAL LAW AND MORAL RIGHTS 145-46 (2005) (reading Skinner as limited to marriage); Carter J. Dillard, Rethinking the Procreative Right, 10 YALE HUM. RTS. DEV. L.J. 1, 44 (2007) (reading Skinner as protecting only a right to “self-replace” and thus a fundamental right to only one or two children per couple); Michelle Meyer, The Mythical Right to Procreate (manuscript) (collecting readings).

The uncertainty about how to read Skinner is compounded by other unresolved substantive Due Process debates: the debate between those adopting an “intimacy” versus “Due Process Traditionalist” approach to Substantive Due Process: whether new fundamental rights claims that build off existing decisions (Skinner in this case) will be ‘grandfathered’ in or instead revisited under the more Traditionalist approach; the debate over the level of generality with which we characterize the right at issue – it is easier to find a fundamental “right to procreate” writ large grounded in Skinner and historical analogues than a “right to use an anonymous sperm donor.”

Further, complicating the question is that in some cases (such as the denial of services based on age or sexuality) while discrimination against these categories of persons we are told ordinarily only merits rational basis review, it is also possible that when combined with the increased substantive Due Process protection of procreative activities, heightened scrutiny (of the intermediate or strict variety) may be warranted as a matter of Equal Protection (one reading of what happened in Skinner itself). See Radhika Rao, Equal Liberty: Assisted Reproductive Technology And Reproductive Equality, 76 GEO. WASH. L. REV. 1457 (2008).

Thus, I think a court faced with the question of what to do with these kinds of cases has a lot of constitutional room to maneuver.

Am I making this more complicated than it should be?

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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”©