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HomeUncategorizedProcreative Liberty - Are There Limits?

Procreative liberty – the freedom to make your own choices regarding procreation – encompasses a wide range of putative rights. Over the course of the last several decades, many landmark cases decided by the Supreme Court have defined and expanded the rights pertaining to procreative liberty.

Procreative liberty has been defined as “freedom in activities and choices related to procreation”.1 However, this usage does not represent settled case law. In the 1972 case Eisenstadt v. Baird,2 Justice William Brennan discussed the right of privacy. Justice Brennan famously opined that individuals, both married and single, should be “free of unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child”.

But this particular right has been interpreted as the right not to reproduce, i.e., a right to use contraception and abortion (before the fetus is viable).

It has been suggested that the Supreme Court has not “analyzed the interests behind this protection, nor taken account of new reproductive technologies”.3 There is a compelling case that this right to privacy can also be interpreted as the right to reproduce.

If there is a right to reproduce, this would include noncoital as well as coital reproduction. For example, the availability of in vitro fertilization (IVF) has launched a brave new world of reproductive capabilities. Human cloning could be considered for inclusion in the right to reproduce. More broadly, procreative liberty should be extended to encompass a right to reproduce. Essentially, my gametes are mine, or rather they’re me. Just as I can walk down the street freely, so should I be able to walk my gametes into a clinic and use them as part of any collaborative reproduction program. Provided, of course, that such a program is legal from all other points of view.

Single, married, heterosexual, homosexual, or otherwise – none of this matters in the contexts of procreative liberty. All individuals should have this right as part of a free society. Times have changed, as Bob Dylan knew they would. Several U.S. states have legalized same-sex marriage. Many more are likely to follow, despite furious opposition (as in California). The notion of a traditional nuclear family has been superseded long ago by, pretty much, family structures where anything goes.

But the right to reproduce does pose many deep questions across a range of issues, particularly those involving important state interests and potential harm to other persons. As well, the status of all parties involved, e.g., gamete donors in the case of IVF, DNA donors in the case of human cloning, needs to be formalized. These are a few of the concerns.

The notion of “unpacking” can be applied to the de-linking of genetics, gestation, and child-rearing. Unpacking is a term from computer science, suggesting methods of deriving large amounts of information from a very small receptacle. This is particularly apt when applied to human reproduction. When the DNA code is unpacked, a human is formed. But when we apply new science to the process of procreation, we need to look before we leap. And we need to understand more clearly what we mean by procreative liberty.

1Robertson JA: Embryos, families, and procreative liberty: The legal structure of the new reproduction. Southern Cal Law Rev 59:939-1041, 1986

2405 U.S.

438 (1972)

3Robertson, op.cit.

Source by David Lemberg


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