Review Essay/Procreative Liberty

Criminal Justice Ethics

Volumn 15, Issue 1, 1996, Pages 67-74

  Steinbock, Bonnie ^a  

^a NONE

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EID: 33750894131     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.1996.9992007     Document Type: Article

References (21)

1. would like to thank the editors of Criminal Justice Ethics for insightful and helpful comments on an earlier draft of this essay.
2. J. Robertson, Children of Choice: Freedom and the New Reproductive Technologies 24 (1994). Subsequent page references in the text will be enclosed in square brackets.
3. For example, Elizabeth S. Scott, alluding to Robertson's view that infertile couples have a right to engage in collaborative reproduction as the only means for obtaining a child, maintains that this argument is compelling only if the couple desires a child to rear. She writes, No one argues that the surrogate mother is exercising her right to procreate by becoming pregnant through a surrogate arrangment. Sterilization of Mentally Retarded Persons: Reproductive Rights and Family Privacy, 1986 Duke L. J. 806, n78.
4. However, this seems to be just what Robertson does argue, for he says that commercial surrogacy may have to be tolerated because the procreative liberty of all the parries is so intimately involved [227, emphasis added]. Robertson has recently explained to me that he did not mean to suggest that the right to be a surrogate is directly derived from the right to reproduce. Rather, the procreative liberty of the contracting couple, which gives them a right to engage in collaborative reproduction, creates a derivative right to be a surrogate on the part of the woman with whom they contract. Robertson thinks that this is analogous to abortion where a woman's procreative liberty, which gives her the right to have an abortion, creates a derivative right on the part of a doctor to perform the abortion. However, a doctor's right to perform an abortion does not involve the doctor's procreative liberty. Either the analogy is inapt, or Robertson's claim that the procreative liberty of all the parties is intimately involved in surrogacy is false.
5. Lori B. Andrews is one commentator who clearly thinks that procreative liberty protects reproduction tout court. She criticizes the OTA Report on Infertility as giving Inadequate attention to the possibility that the decision to create a child that he or she will not rear may be as important to the gamete donor or surrogate as would be the decision not to create a child, or the decision to create a child that he or she will rear. Andrews, Control and Compensation: Laws Governing Extracorporeal Generative Materials, 14 J. Med. & Phil. 545 (1989).
6. Arthur, The Norplant Prescription: Birth Control, Woman Control, or Crime Control, 40 UCLA L. Rev. 17, n. 93 (1992).
7. When Robertson says that noncoital reproduction should be given the same protection as coital protection, he means that the state may not prevent infertile couples from using noncoital means to reproduce, any more than it would be justified in preventing couples from using coital means. Robertson does not think that there is a positive or welfare right to fertility treatment. The right to reproduce is only a negative right, that is, a right against interference with the attempt to reproduce.
8. For development of this idea, see Steinbock & McClamrock, When Is Birth Unfair to the Child? 24 Hastings Center Report 15-21 (1994).
9. Roe v. Wade, 410 U.S. 113,153 (1973).
10. Adrienne Asch thinks that there is a significant moral difference between aborting to avoid becoming a parent and aborting a specific fetus because it has a defect.
11. See her Reproductive Technology and Disability, in Reproductive Laws for the 1990s (Cohen and Taub, eds. 1989). For a response, see my Life Before Birth: The Moral and Legal Status of the Embryo and Fetus 206-208 (1992).
12. Nearly all IVF programs test couples for HIV and may refuse the procedure if one or both test positive. Robertson writes, The exclusion is usually justified on the 'ethical' ground of protecting offspring who would be born in disadvantageous circumstances. However, providing IVF services to these groups would not harm children who have no other way to be born, and thus may ethically be provided if a program is so inclined [117]. However, in Robertson's view, clinics are not merely free to provide IVF services to HIV-positive couples.
13. They would be wrong to deny them since this would discriminate against persons with AIDS, and violate their right to reproduce. Robertson has acknowledged that he is committed to this stronger view in personal communication.
14. The Donor story thus contrasts with the real-life Ayala story, in which a couple decided to have a third child, in the hopes that her bone marrow would be compatible with their older daughter's and save her from life-threatening leukemia. The Ayalas intended to love the new baby as a member of their family, regardless of whether her bone marrow could be used to save Anissa.
15. See When One Body Can Save Another, Time, June 17,1991, at 54-58.
16. This example was suggested to me by John Arras.
17. See D. Parfit, Reasons and Persons 357-361 (1984).
18. See Arthur, The Norplant Prescription, supra note 3.
19. Id. at 79.
20. Of course, not everyone who falls under these descriptions is incapable of being an adequate parent. Some mentally ill and retarded individuals can be very good parents, with help and supervision. However, youth and mental disability are very often conditions that prevent people from being adequate parents and provide reasons for suspecting that some will be unable to be a rearing parent. My point is thatif someone is incapable of being a rearing parent, even with help, it is wrong to ascribe to such a person a right to reproduce.
21. See Scott, supra note 2, at 828-29.