Privatizing Procreative Liberty in the Shadow of Eugenics' by Dov Fox in (2018)
Journal of Law and the Biosciences comments
John Robertson is renowned for the theory of ‘procreative liberty’ that he expounded in his pioneering book, Children of Choice. Procreative liberty captures the ‘freedom to reproduce without sex’ above and beyond the ‘freedom to have sex without reproduction’ that are recognized by constitutional rights to abortion and birth control. Most controversial among Robertson's work on procreative liberty was its application to prenatal selection. Unless the state had very good reasons, he argued, people should be free to access reproductive medicine or technology to have a child who or would be born with particular traits. Prospective parents in the USA today face no official limits in using sperm banks, egg vendors, IVF clinics, or surrogacy agencies with an eye toward choosing for certain characteristics. But should they be protected, this essay asks, when mix-ups or misdiagnoses thwart the selection of offspring traits? The best answer to this question extends the theory of procreative liberty from government restrictions to professional negligence. It also demands sensitivity to genetic uncertainty, the limits of private law, and the history of eugenics in America.
Fox states
“Procreative liberty” draws life from the constitutional rights to access birth control and
abortion. The U.S. Supreme Court has designated those practices among the handful of
fundamental rights—like freedom of thought and movement—that demand the greatest measure
of protection against government intrusion. So federal and state actors can’t ban contraception or
abortion without the strongest possible justification. But neither right entitles a woman who can’t
afford them to the “financial resources” they’d need “to avail herself of” those otherwise
“protected choices.” These rights paradigmatically target the decision to prevent or end an
unwanted pregnancy. But they also empower individuals to achieve wanted parenthood by
refusing contraception or abortion. The Court articulated these rights in not just negative but
positive terms: “to accomplish . . . conception”; “to conceive and to raise one’s children”;
“whether to bear or beget.” Robertson argued such protections should extend to reproduction
with assistance from donors, surrogates, or technology. But he appreciated that the landmark
privacy cases allow this broader reach just as surely as they don’t compel it. Indeed, the
Supreme Court hasn’t yet spoken to the involvement of third parties in reproductive rights. And
state courts for their part almost always decline invitations to enlarge those rights beyond
government restrictions on abortion and birth control. They’ve upheld restrictions on
reproduction, for example, that range from probate conditions that forbid procreation and judicial orders barring drug-using parents from having additional children until they get clean to
bans on donating sperm without pay and rules barring prisoners from mailing their sperm to
their wives for the purpose of insemination. Professor Robertson weighed in on many of these
questions over the years as advances in the methods and mores of procreation dramatically
transformed the reproductive landscape over the quarter-century since his book’s publication, including recently in the pages of this journal on matters of egg freezing and uterine transplants.
Most controversial among Robertson’s work on procreative liberty was its application to
the prenatal selection of offspring characteristics. People should have a constitutional right, in
his view, against laws that limit the use of reproductive medicine or technology to have (or avoid
having) a child who is (or would be) born with particular traits. If people are generally free to
choose whether or not to reproduce, Robertson argued, and if the genetic characteristics of
expected offspring will affect that decision, then they should also be generally free to use genetic
information in making those decisions. ...
... This essay seeks to extend Robertson’s arguments about procreative liberty from public
restrictions to private ones, from government officials to medical professionals, from
constitutional law to contracts and torts. Courts have consistently held that the private “law does
not recognize disruption of family planning either as an independent cause of action or element of
damages.” Contract or tort actions against wrongfully frustrated donor screening or embryo
selection need “not [be] coextensive with or measured by the woman’s constitutional right to
decide the fate of her pregnancy.” But reproductive interests in one domain of law can usefully
inform the other. My focus lies with thwarted selection of offspring traits — what I have elsewhere
called “confounded procreation.” The plaintiffs in these cases wanted a baby and got one,
except that the defendant’s negligence led them to get a baby with genetic traits that are different
than those they’d used reproductive medicine to select for. What they wanted, for any number of
reasons, wasn’t just any child, but a child of a particular type. So they review ultrasound images
or peruse donor profiles that enable them to learn certain information about what potential
offspring might be like. Their goal is to use that information to choose among possible cells or
tissues or nascent human beings before deciding which will be born or implanted or conceived.
But then professionals fertilize patients with the wrong sperm, implant another couple’s embryos,
misrepresent donor information, or misdiagnose fetuses. These kinds of errors lead patients to
initiate, continue, or terminate pregnancies in ways that frustrate their preferences for a child of
one kind or another. The most common thing that prospective parents are looking for when they
use prenatal screening today is a child who’s biologically related to them or who’s free of some
disease that they’re at risk of passing on. Other would-be parents are looking for traits other than
health or heredity. Some people might try to have a girl or boy for nonmedical reasons; others a
child who resembles their physical or other genetically influenced features that matter to them.
