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.