The constitution and the rights not to procreate

Stanford Law Review

Volumn 60, Issue 4, 2008, Pages 1135-1196

  Glenn Cohen, I ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 42349095973     PISSN: 00389765     EISSN: None     Source Type: Journal    
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References (502)

1. E.g., In re Marriage of Witten, 672 N.W.2d 768, 772 (Iowa 2003).
2. For more details on the process of cryopreservation including ovarian hyperstimulation, harvesting, fertilization, and implantation, see Carl H. Coleman, Procreative Liberty and Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes, 84 MINN. L. REV. 55, 59-63 (1999).
3. Two courts found the particular agreements at issue flawed but indicated, in dicta, that even if faced with a completely procedurally valid agreement they would refuse to enforce it. A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000);
4. J.B. v. M.B., 783 A.2d 707 (N.J. 2001). A third court assumed arguendo that participation in IVF constituted an implied agreement to become a parent, but nonetheless held that despite such an agreement neither party could be made a parent against their contemporaneous objection.
5. In re Marriage of Witten, 672 N.W.2d at 780. One court found that in the absence of an agreement neither party could be made a parent against his or her contemporaneous objection, but suggested, in dicta, that a disposition agreement mandating implantation would be enforceable.
6. Davis v. Davis, 842 S.W.2d 588, 597-98 (Tenn. 1992). Finally, one court found such agreements enforceable, but the agreement in question mandated preembryo destruction.
7. Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998). Florida has by legislation made these contracts enforceable, and provides that in the absence of "a written agreement, decisionmaking authority regarding the disposition of preembryos shall reside jointly with the commissioning couple."
8. FLA. STAT. ANN. § 742.17 (West 2007).
9. A number of non-U. S. courts have also weighed in, including the European Court of Human Rights in Evans v. United Kingdom, Application No. 6339/05 Eur. Ct. H.R. (2007) (holding that, post-separation, a man could demand the destruction of preembryos he had fertilized, notwithstanding the fact that they represented the woman's only chance of having a genetic child due to the removal of her ovaries), and the Israeli Supreme Court, CFH 2401/95 Nahmani v. Nahmani [1996] IsrSC 50(4) 661 (reaching the opposite conclusion in a similar case).
10. See also Ellen Waldman, Cultural Priorities Revealed: The Development and Regulation of Assisted Reproduction in the United States and Israel, 16 HEALTH MATRLX 65, 97-100 (2006) (discussing the Nahmani case).
11. For further discussion of the laws of various European countries, see Evans, ¶¶ 39-42.
12. E.g., Joseph Russell Falasco, Frozen Embryos and Gamete Providers' Rights: A Suggested Model For Embryo Disposition, 45 JURIMETRICS 273, 284 (2005);
13. Russell Korobkin, Autonomy and Informed Consent in Nontherapeutic Biomedical Research, 54 UCLA L. REV. 605, 626 (2007);
14. Sara K. Alexander, Note, Who Is Georgia's Mother? Gestational Surrogacy: A Formulation for Georgia's Legislature, 38 GA. L. REV. 395, 420-421 (2003);
15. Kimberly Berg, Note, Special Respect: For Embryos and Progenitors, 74 GEO. WASH. L. REV. 506, 508 (2006).
16. I. Glenn Cohen, The Right Not to Be a Genetic Parent?, 81 S. CAL. L. REV. (forthcoming 2008).
17. See, e.g., W. Michael Reisman, Comment, Necessary and Proper: Executive Competence to Interpret Treaties, 15 YALE J. INT'L L. 316, 325 (1990).
18. See JOHN ROBERTSON, CHILDREN OF CHOICE 108-09 (1994) (distinguishing "reproduction tout court" from more limited forms of parenthood);
19. Marjorie Maguire Shultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality, 1990 WIS. L. REV. 297, 310-11;
20. Lee M. Silver & Susan Remis Silver, Confused Heritage and the Absurdity of Genetic Ownership, 11 HARV. J.L. & TECH. 593, 593 (1998).
21. Some of these rights could be further subdivided. For example, legal parentage implies both an (at least prima facie) obligation to provide financial support and a custodial obligation. We could subdivide the right further into a right not to be a financial parent and a right not to be a custodial parent, and, at least conceptually, recognize the one but not the other, or recognize one in a waivable form but the other in a non-waivable form, etc. For my purposes, there is not much additional benefit to taking the unbundling much further, but I recognize that others might find doing so useful for their specific analyses.
22. This move is, broadly speaking, Hohfeldian. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16 (1913);
23. see JOSEPH WILLIAM SINGER, ENTITLEMENT: THE PARADOXES OF PROPERTY 131-34 (2000) (describing Hohfeld's relational nature of rights theory). We could also be even more Hohfeldian and specify jural opposites and correlates for each of these. So, X person either has a right or no right not to be a genetic parent; if he has a right, then person Y has a duty not to make him a genetic parent, whereas if he has no right, then person Y has a privilege of making him a genetic parent.
24. Id. at 132-33.
25. Thus, conceptually these positive rights might add a third set of rights - a right to assistance in becoming a gestational, genetic, and legal parent. See ROBERTSON, supra note 6, at 23 (1994) (noting the possibility of "a positive right to have the state or particular persons provide the means or resources necessary to have or avoid having children" but claiming there is no constitutional basis for that obligation).
26. As to the right not to be a gestational parent, this distinction is captured nicely by the Supreme Court's decision in Roe v. Wade, 410 U.S. 113 (1973),
27. on the one hand, finding a non-interference right, and Maher v. Roe, 432 U.S. 464 (1977),
28. and Harris v. McRae, 448 U.S. 297 (1980), on the other, finding no obligation to fund either therapeutic (Harris) or non-therapeutic (Maher) abortions under Medicaid.
29. The Supreme Court has framed the right as a decisional one that encompasses both elements. See Roe v. Wade, 410 U.S. at 153 (finding the Fourteenth Amendment "broad enough to encompass a woman's decision whether or not to terminate her pregnancy") (emphasis added).
30. Although I use "husband" and "wife" throughout the Article for the sake of convenience, I do not mean to suggest that other configurations of these fact patterns are not possible, for example, ones involving same-sex partners, single individuals and sperm or egg donors, etc.
31. This is already the law in Colorado, Texas, and Washington. COLO. REV. STAT. ANN. § 19-4-106 (West 2007);
32. TEX. FAM. CODE ANN. § 160.706 (Vernon 2007);
33. WASH. REV. CODE ANN. § 26.26.725 (West 2007). Because the genetic father is deemed not to be the legal parent of the child, under this approach he cannot have duties of child support imposed upon him even if the mother is unable to provide support.
34. The wife is, by contrast, asserting a right to be a genetic and legal parent. Case 1 is similar to the facts of A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000), although there the Court found that the agreement in question was not an "unambiguous agreement," for a variety of reasons.
35. Id. at 1056-59.
36. If adoption is a serious possibility-for example, if the wife is remarried and her new husband is willing and able to legally adopt the resulting child thus terminating the ex-husband's legal parenthood - there would be interesting questions about the strength of the ex-husband's claim. One way of putting the point is whether temporary unwanted legal parenthood constitutes a significant injury. In practice, however, from the husband's ex ante position at the time of implantation, the possibility of adoption of a possible future child is always a matter of uncertainty.
37. Again, the wife would claim a right to be a genetic and legal parent.
38. The agreement in In re Baby M, 525 A.2d 1128 (N.J. Super. Ct. Ch. Div. 1987), featured a clause prohibiting the surrogate from getting an abortion "except as allowed by the male promisor," that the court found unenforceable, although in that case the surrogate was a full surrogate, and thus the gestational and genetic mother of the child.
39. Id. at 1159. A number of states have by statute made such promises unenforceable, whether or not the surrogate is the genetic mother of the child.
40. E.g., IND. CODE ANN. § 31-20-1-1 (West 1998).
41. Nor does it matter that she has or does not have a right to be a gestational parent, since she is not being forced to have an abortion against her will. By contrast, in this case the husband and wife would be asserting a right to be genetic and legal parents.
42. By contrast, the surrogate could assert a right to be a gestational parent and, depending on the laws of the jurisdiction, perhaps a right to be a legal parent as well.
43. This was the law in California at issue in Michael H. v. Gerald D., 491 U.S. 110, 115 (1989), which presumed the paternity of the husband of the birth mother, rebuttable by a blood test or affidavit by the true genetic father, but only within two years from the date of the child's birth pursuant to CAL. EVID. CODE § 621(a), (c), (d) (West Supp. 1989).
44. See also In re Paternity of Cheryl, 746 N.E.2d 488, 490 (Mass. 2001) (sustaining a judgment of paternity and an order to pay child support when, more than five years after a man voluntarily acknowledged paternity, genetic tests established that he was not the child's genetic father). Alfred, by contrast, might assert a right to be the legal parent of the child in Case 5.
45. I do not want to suggest that the list of rights I set out is exhaustive. In particular, at the conceptual level, there are at least two more rights worth identifying that are not rights not to procreate per se.
46. The first can be called a right to control one's tissue qua tissue. For example, in Moore v. Regents of the University of California, 793 P.2d 479 (Cal. 1990), researchers at the University of California developed and patented a cell line from spleen tissue taken during patient Moore's splenectomy; the California Supreme Court dismissed his suit to recover the proceeds on a theory of conversion, implicitly rejecting such a right, at least as to "abandoned" tissue.
47. Id. at 487-97. Moore concerned non-reproductive tissue but similar claims could be made regarding reproductive tissue like sperm used for non-reproductive purposes. Second, whether or not tissue of one sort or another ever leaves the body, an individual might claim a right to control her genetic information qua information. Such a right might be implicated, for example, in employer or insurance companies using information from genetic tests to make enrollment decisions, requiring someone to provide genetic information, in police collecting an individual's "left-over" DNA for criminal investigation purposes, or having one's genetic information revealed in the course of the screening of a genetically related individual.
48. See, e.g., Elizabeth E. Joh, Reclaiming "Abandoned" DNA: The Fourth Amendment and Genetic Privacy, 100 NW. U. L. REV. 857 (2006);
49. Paul Steven Miller, Is There a Pink Slip in My Genes? Genetic Discrimination in the Workplace, 3 J. HEALTH CARE L. & POL'Y 225 (2000). I identify these rights only to bracket them off from my inquiry here. Whether a jurisdiction chooses to recognize either of these types of rights is a separate question from whether and how it decides to recognize each of the sticks in the bundle of rights not to procreate.
50. While some of these six possible rights will conflict, some will not. For example, it seems as though there will never be a case presenting a conflict between the right not to gestate and the right not to be a genetic parent.
51. A couple of the courts dealing with preembryo disposition disputes appear to endorse a crude version of such a rule suggesting that rights not to procreate trump rights to procreate, A.Z. v. B.Z., 725 N.E.2d 1051, 1059 (Mass. 2000);
52. J.B. v. M.B., 783 A.2d 707, 716 (N.J. 2001), but they fail to unbundle each of the sticks within the rights to and not to procreate.
53. A couple of courts in the preembryo disposition dispute context have indirectly gestured at such case-by-case balancing. See J.B., 783 A.2d at 719-20 (explicitly refraining from deciding a case where the party who now seeks to use the preembryos has become infertile and will not be able to have genetic offspring without the preembryos);
54. Davis v. Davis, 842 S.W.2d 588, 603-04 (Term. 1992) (suggesting that, in favoring non-implantation, it was moved in part by the "impact that this unwanted parenthood would have on [Mr.] Davis" which could "only be understood by considering his particular circumstances" of being essentially abandoned by his parents following their divorce).
55. I use the term "waiver" here although "alienated" is also frequently used in the literature.
56. Again, I am speaking only conceptually. It would be very odd to think of a regime where no one could ever consent to be a gestational, genetic, or legal parent.
57. Edward L. Rubin, Toward a General Theory of Waiver, 28 UCLA L. REV. 478, 483 (1981).
58. See Child Support Enforcement Agency v. Doe, 125 P.3d 461, 469 (Haw. 2005).
59. The trial court in Kass v. Kass makes such a suggestion, No. 19658/93, 1995 WL 110368, at *2 (N. Y. Sup. Ct. Jan. 18, 1995),
60. and the Iowa Supreme Court assumes this to be the case for the purposes of argument in In re Marriage of Witten, 672 N.W.2d 768, 780 (Iowa 2003).
61. But see Davis v. Davis, 842 S.W.2d at 598 (rejecting the waiver argument).
62. Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1852-55 (1987).
63. Anti-commercialization arguments focus on access, voluntariness, and corruption (or commodification) problems. See, e.g., I. Glenn Cohen, Note, The Price of Everything, the Value of Nothing: Reframing the Commodification Debate, 117 HARV. L. REV. 689 (2003).
64. COLO. REV. STAT. ANN. § 19-4-106 (West 2007); TEX. FAM. CODE ANN. § 160.706 (Vernon 2007);
65. WASH. REV. CODE ANN. § 26.26.725 (West 2007). The Texas statute provides that: (a) If a marriage is dissolved before the placement of eggs, sperm, or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a record kept by a licensed physician that if assisted reproduction were to occur after a divorce the former spouse would be a parent of the child.
66. (b) The consent of a former spouse to assisted reproduction may be withdrawn by that individual in a record at any time before the placement of eggs, sperm, or embryos. TEX. FAM. CODE ANN. § 160.706 (Vernon 2007). The Colorado and Washington provisions are nearly identical.
67. Few such cases have been reported, but Professor Robertson notes one such case in the Australian province of Victoria. John A. Robertson, Precommitment Strategies for Disposition of Frozen Embryos, 50 EMORY L.J. 989, 1021 n.148 (2001). The administering agency interpreted its local act to allow withdrawal of consent by a sperm donor up until the point at which the fertilized embryo was placed in the mother's uterus, but later changed its interpretation to allow for withdrawal only up until the point that fertilization took place, because of concerns about detrimental reliance.
68. Id.
69. About half the states have adopted the 1973 version of the Uniform Parentage Act, absolving sperm donors of legal parenthood so long as the recipient is married and the semen is provided to a licensed physician for use in artificial insemination. UNIF. PARENTAGE ACT § 5(b), 9B U.L.A. 408 (1973);
70. see Martha M. Ertman, What's Wrong with a Parenthood Market? A New and Improved Theory of Commodification, 82 N.C. L. REV. 1, 20 n.78 (2003). Colorado and Wyoming have modified the statute so that it absolves the sperm donor of legal parenthood when the recipient is unmarried as well.
71. Id. at 20 n.79. The 2000 version of the Uniform Parentage Act, which has been adopted by Texas and Washington, drops both the requirement that the recipient be married and that there be physician assistance.
72. UNIF. PARENTAGE ACT §702, 9B U.L.A. 355 (2000);
73. TEX. FAM. CODE ANN. §§ 160.001 to .821 (Vernon 2001);
74. WASH. REV. CODE §§ 26.26.011 to 26.26.913 (2002);
75. Ertman, supra, at 20 n.78;
76. see Bernie D. Jones, Single Motherhood by Choice, Libertarian Feminism, and the Uniform Parentage Act, 12 TEX. J. WOMEN & L. 419, 440 (2003). For egg providers, only five states have equivalent laws, all of which relieve egg providers of parental rights and obligations but only three (North Dakota, Virginia, Oklahoma) make the recipient woman the legal mother, the other two (Florida and Texas) do not specify who is the parent, only that the donor is not the parent.
77. Helen M. Alvaré, The Case for Regulating Collaborative Reproduction: A Children's Rights Perspective, 40 HARV. J. ON LEGIS. 1, 27 & nn. 185 & 187 (2003).
78. No. 1-03-2992,2005 WL 4694579, at *1 (Ill. App. Ct. Feb. 22, 2005).
79. One might push back against the claim that there is no consent in these cases. If the background rule allowed use of skin discarded in the bathtub, then someone who failed to clean the tub might be held to "consent." Cf. California v. Greenwood, 486 U.S. 35, 39-40 (1988) (no expectation of privacy in one's garbage left at the curb and therefore search thereof was constitutional). This is true as far as it goes, but most of us would agree this was not "consent" as the concept is normally conceived. If you think otherwise, consider my discussion to be of cases posing very minimal consent.
80. Sperm Made from Human Bone Marrow, BBC NEWS, Apr. 13, 2007, http://news.bbc.co.uk/2/hi/health/6547675.stm.
81. Gina Kolata, Scientists Bypass Need for Embryo to Get Stem Cells, N. Y. TIMES, Nov. 21, 2007, at A1.
82. As we will see, once gestation has begun, existing Supreme Court precedent quite clearly prevents interference in that gestation to avoid genetic parenthood (i.e., forcing an abortion).
83. For courts, see J.B. v. M.B., 783 A.2d 707, 715-17 (N.J. 2001);
84. Davis v. Davis, 842 S.W.2d 588, 600-04 (Tenn. 1992);
85. see also In re Baby M., 537 A.2d 1227, 1253 (N.J. 1988) (surrogacy).
86. For commentators, see Kim Pittman, Resolving Disputes Over the Disposition of Frozen Preembryos: Playing Catch-Up with IVF Technologies, 20 ME. B.J. 228, 232 (2005);
87. Berg, supra note 3.
88. See also Korobkin, supra note 3, at 626 (arguing, in the preembryo disposition context, that "[c]ontracts to procreate should be unenforceable on public policy grounds because of a constitutionally recognized interest in avoiding procreation").
89. 381 U.S. 479 (1965).
90. Id. at 482.
91. Id. at 484
92. (citing Poe v. Ullman, 367 U.S. 497, 516-22 (1961) (Douglas, J., dissenting)).
93. Id. at 485-86.
94. Compare Williams v. Attorney Gen. of Ala., 378 F.3d 1232 (11th Cir. 2004) (upholding as constitutional a statute banning commercial distribution of sex toys),
95. with Reliable Consultants, Inc. v. Earle, No. 06-51067, 2008 WL 383034, at *1 (5th Cir. Feb. 12, 2008) (reaching the opposite conclusion).
96. See also David B. Cruz, "The Sexual Freedom Cases"? Contraception, Abortion, Abstinence, and the Constitution, 35 HARV. C.R.-C.L. L. REV. 299, 339-42 (2000) (discussing the plausibility of a Fourth Amendment reading of Griswold).
97. 405 U.S. 438, 440-42 (1972).
98. Id. at 447.
99. Id. at 452. The problem with the statute as a deterrent to fornication or a health measure was not that the Court determined that those purposes were constitutionally forbidden, but that the Court did not believe the statute could be characterized as serving those goals.
100. Id. at 448-51. In fact, the Court said it was "[conceding that the State could, consistently with the Equal Protection Clause, regard the problems of extramarital and premarital sexual relations as '(e)vils . . . of different dimensions and proportions, requiring different remedies.'"
101. Id. at 448
102. (quoting Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955)).
103. Id. at 453.
104. Id.
105. Id. at 454.
106. Id. at 453
107. (citing Stanley v. Georgia, 394 U.S. 557 (1969);
108. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942);
109. Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905)) (emphasis added).
110. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (treating Eisenstadt as a due process decision);
111. see also M.L.B. v. S.L.J., 519 U.S. 102, 115 n.6 (1996);
112. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 875 (1992) (plurality).
113. 431 U.S. 678 (1977).
114. Id. at 681.
115. Id. at 684
116. (quoting Whalen v. Roe, 429 U.S. 589, 599-600 (1977)).
117. Id. at 685 (emphasis added).
118. Id. (emphasis added).
119. The New York Court of Appeals' decision in L. Pamela P. v. Frank S., 59 N.Y.2d 1 (1983), gestures at this reasoning. There, the Court rejected reliance on the contraception cases as giving a father a constitutional right to avoid paying child support when he was deceived into believing his female sex partner was using contraception. The Court found the contraception cases inapposite: [T]he interest protected [in the contraception cases] has always been stated in terms of governmental restrictions on the individual's access to contraceptive devices. It involves the freedom to decide for oneself, without unreasonable governmental interference, whether to avoid procreation through the use of contraception. This aspect of the right of privacy has never been extended so far as to regulate the conduct of private actors as between themselves.
120. Id. at 6 (internal citations omitted). This kind of reasoning might allow us to distinguish a hypothetical where the state itself is seeking to use one's genetic material to produce children against one's will. Alternatively, such a case might be distinguished by suggesting that the state action could not survive even rational basis scrutiny.
121. Justice Brennan implies as much in a portion of the Carey opinion joined by three other Justices. Carey, 431 U.S. at 694-95 (Brennan, J., plurality);
122. see Robin West, Integrity and Universality: A Comment on Ronald Dworkin's Freedom's Law, 65 FORDHAM L. REV. 1313, 1325 (1997) ("What Griswold and Eisenstadt protected for both married and unmarried individuals was the freedom to engage in heterosexual intercourse without fear of familial and reproductive consequences.");
123. cf. Cornelia T.L. Pillard, Our Other Reproductive Choices: Equality in Sex Education, Contraceptive Access, and Work-Family Policy, 56 EMORY L.J. 941, 975 (2007) (reading Griswold as protecting a "right to engage in nonprocreative sex").
124. A statute that, for example, banned contraception for homosexual sex but not heterosexual sex provides an interesting test case. Perhaps such a statute would be struck down on the earlier "intrusion into the bedroom" reasoning of Griswold, although of course (except in Massachusetts) it would not be the "marital" space that would be invaded. Or perhaps the statute would fail on rational basis review, see Lawrence v. Texas, 539 U.S. 558 (2003), or as an equal protection violation, as in Eisenstadt.
125. See ROBERTSON, supra note 6, at 108-09.
126. Moreover, preventing use of contraception does not in fact deprive women of the right to decide whether or not to be a gestational parent. Rather it deprives them of an opportunity to avoid becoming a gestational parent in the first place. That is, abortion remains an option. Adoption fulfills a similar function with the right not to be a legal parent.
127. Carey, 431 U.S. at 685 (emphasis added).
128. There may be other reasons to suggest a morally relevant difference between these two situations. For example, if one believes that life begins at conception, destruction of sperm does not pose the problems that destruction of fertilized preembryos do. But that distinction turns on the existence of a competing constitutionally significant interest (in potential life), which I discuss in the next Part, not on whether the party has a fundamental constitutional right in the first place.
129. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
130. For courts, see Kass v. Kass, No. 19658/93, 1995 WL 110368, at *2 (N.Y. Sup. Ct. Jan. 18, 1995);
131. Davis v. Davis, 842 S.W.2d 588, 601 (Tenn. 1992). To its credit, elsewhere in the opinion, the Davis court recognizes that "[n]one of the concerns about a woman's bodily integrity that have previously precluded men from controlling abortion decisions is applicable here."
132. Id. at 601.
133. For commentators, see, for example, Ingrid H. Heide, Negligence in the Creation of Healthy Babies: Negligent Infliction of Emotional Distress in Cases of Alternative Reproductive Technology Malpractice Without Physical Injury, 9 J. MED. & L. 55, 61 & n.14 (2005);
134. Paula Walter, His, Hers, or Theirs-Custody, Control, and Contracts: Allocating Decisional Authority over Frozen Embryos, 29 SETON HALL L. REV. 937, 944 (1999);
135. Tracy Haslett, Case Note, J.B. v. M.B.: The Enforcement of Disposition Contracts and the Competing Interests of the Right to Procreate and the Right Not to Procreate Where Donors of Genetic Material Dispute the Disposition of Unused Preembryos, 20 TEMP. ENVTL. L. & TECH. J. 195, 206 (2002);
136. Hyun Jee Son, Note, Artificial Wombs, Frozen Embryos, and Abortion: Reconciling Viability's Doctrinal Ambiguity, 14 UCLA WOMEN'S L.J. 213, 231 (2005).
137. Cf. ROBERTSON, supra note 6, at 108 ("The constitutionality of laws that prevent the discard or destruction of IVF embryos is independent of the right to abortion established in Roe . . . and . . . Casey").
138. 410 U.S. 113 (1973).
139. Id. at 153.
140. See also John A. Robertson, In the Beginning: The Legal Status of Early Embryos, 76 VA. L. REV. 437, 467 (1990). The only possible exception is the reference to the "stigma of unwed motherhood," but it is not clear that such a stigma attaches when one is only an unmarried genetic, and not gestational or legal parent.
141. Roe v. Wade, 410 U.S. at 153.
142. See, e.g., Roe v. Wade, 410 U.S. at 154 (connecting the abortion right to "right to do with one's body as one pleases," but rejecting the claim that the right is "unlimited"
143. (citing Jacobson v. Massachusetts, 197 U.S. 11 (1905);
144. Buck v. Bell, 274 U.S. 200 (1927))). There is some language elsewhere in the Court's jurisprudence that somewhat suggests there is also something more than bodily integrity involved. For example, there is language in Planned Parenthood of Southeastern Pennsylvania v. Casey, noting that "state regulation on a woman's protected liberty is doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of the family but upon the very bodily integrity of the pregnant woman."
145. U.S. 833, 896 (1992) (plurality opinion). This statement is made in the context of the spousal notification requirement. The best reading of the passage is that the spousal notification requirement is "doubly" deserving of scrutiny because such notification requirements in general interfere with the private realm of family, and because the notification pertains to abortion, it additionally interferes with bodily integrity. Further, as I discuss in more depth below, grounding the abortion right in "the private sphere of the family" cannot account for cases where the husband and wife, both members of the family, disagree. In any event, nothing here or elsewhere in the Court's jurisprudence suggests that bodily integrity is not a necessary condition for justifying the abortion right.
146. As I discuss later, while there is sometimes an Equal Protection leitmotif in courts' and commentators' justification of the abortion right, that claim turns on gender differences regarding the capacity for gestational parenthood, and is inapposite when we are discussing a right not to be a genetic parenthood when it is unbundled from gestational parenthood. See infra note 238 and accompanying text.
147. See, e.g., JOHN LOCKE, SECOND TREATISE OF GOVERNMENT § 27, at 19 (C.B. Macpherson ed., Hackett Publishing Co. 1980) (1690) (arguing that "every man has a property in his own person");
148. J OHN STUART MILL, ON LIBERTY 9, 12 (Elizabeth Rapaport ed., Hackett Publishing Co. 1978) (1859) (recognizing that "[o]ver himself, over his own body and mind, the individual is sovereign" and "each is the proper guardian of his own health, whether bodily or mental and spiritual");
149. see also Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891) ("No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.").
150. Justice Souter's concurrence in Washington v. Glucksberg, gives a good summary of the numerous substantive due process rights the Court has based on bodily integrity. 521 U.S. 702, 777 (1997) (Souter, J., concurring).
151. See, e.g., Judith Jarvis Thomson, A Defense of Abortion, 1 PHIL. & PUB. AFF. 47, 49 (1971) (grounding a defense of abortion in the thought experiment of waking up one morning to find a world-famous violinist connected to your vital organs without your permission);
152. Robin West, Liberalism and Abortion, 87 GEO. L.J. 2117, 2117 (1999) (reviewing EILEEN L. MCDONAGH, BREAKING THE ABORTION DEADLOCK: FROM CHOICE TO CONSENT (1996),
153. and Eileen L. McDonagh, My Body, My Consent: Securing The Constitutional Right to Abortion Funding, 62 ALB. L. REV. 1057 (1999)) (endorsing argument that a woman's right to abortion "should be understood as a right to defend herself against the nonconsensual invasion, appropriation, and use of her physical body by an unwelcome fetus, rather than as a right to choose medical procedures free of interference by the state").
154. See Glucksberg, 521 U.S. at 720
155. (citing Rochin v. California, 342 U.S. 165 (1952), which found that it violates the Due Process Clause to do so, as recognizing a substantive due process right "to bodily integrity").
156. Winston v. Lee, 470 U.S. 753 (1985) (employing a Fourth Amendment rather than due process analysis and finding it "unreasonable" to do so given the risks of surgery and where other evidence available made need to recover bullet less compelling).
157. Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957, 966-67 (1982).
158. 428 U.S. 52 (1976).
159. Id. at 69
160. (citing Roe v. Wade, 410 U.S. 113, 165 n.67 (1973)). A number of other provisions of the Missouri law were also challenged in Danforth, but spousal consent is the one relevant for this discussion.
161. Id. at 58-59.
162. Id. at 69-70. The fact that the Court treats the father's interest as equivalent to that of the state also seems to suggest that the father's interest in genetic parenthood, which the state cannot assert, is not particularly significant.
163. Id. at 70.
164. Id. at 71.
165. The trial court in the preembryo disposition decision of Kass v. Kass, No. 19658/93, 1995 WL 110368 (N.Y. Sup. Ct. Jan. 18, 1995), essentially ignored this key difference. That court stated: It cannot seriously be argued that a husband has a right to procreate or avoid procreation following an in vivo fertilization. He cannot force conception. He cannot compel or prevent an abortion. The simple fact of the matter is that an in vivo husband's rights and control over the procreative process ends with ejaculation. From that moment until such time as the fetus reaches a stage of development sufficient to trigger the State's interest in its life the fetus' fate rests with the mother to the exclusion of all others. . . . It is clear then if there is no difference between in vivo and in vitro fertilizations the rights of the wife must be considered paramount and her wishes with respect to disposition must prevail.
166. Id. at *2-3 (citation omitted).
167. 505 U.S. 833 (1992).
168. Id. at 895-96
169. (citing Lehr v. Robertson, 463 U.S. 248 (1983);
170. Caban v. Mohammed, 441 U.S. 380 (1979);
171. Quilloin v. Walcott, 434 U.S. 246 (1978);
172. Stanley v. Illinois, 405 U.S. 645, 651-52 (1972)).
173. Casey, 505 U.S. at 896.
174. Id. at 897-98.
175. Id. at 851;
176. see also Drucilla Cornell, Dismembered Selves and Wandering Wombs, in LEFT LEGALISM/LEFT CRITIQUE 337, 351 (Wendy Brown & Janet Halley eds., 2002) (conceptualizing the harm as a more abstract invasion of the "right to realize the legitimacy of the individual woman's projections of her own bodily integrity, consistent with her imagination of herself at the time she chooses to terminate her pregnancy").
177. 521 U.S. 702, 727 (1997). The open-endedness of this language has led Justice Scalia and others to criticize this aspect of the Casey decision.
178. See, e.g., Lawrence v. Texas, 539 U.S. 558, 588 (2003) (Scalia, J., dissenting) (castigating "the dictum of its famed sweet-mystery-of-life passage"). Perhaps the Lawrence majority's reliance on this language from Casey signals a resurgence.
179. See 539 U.S. at 574 (2003). However, all the circuit courts to have addressed Lawrence so far have read it as a rational basis case, and thus not involving a fundamental right.
180. See Sylvester v. Fogley, 465 F.3d 851, 857 (8th Cir. 2006);
181. Muth v. Frank, 412 F.3d 808, 818 (7th Cir. 2005);
182. Williams v. Attorney Gen. of Ala., 378 F.3d 1232, 1236-38 (11th Cir. 2004).
183. See Glucksberg, 521 U.S. at 751 n.24 ("[T]he Due Process Clause of the Fourteenth Amendment does not provide heightened protection to the asserted liberty interest in ending one's life with a physician's assistance . . . .");
184. Village of Belle Terre v. Boraas, 416 U.S. 1, 3-7 (1974) (reviewing under rational basis test a zoning ordinance preventing cohabitation by those not related by blood, adoption, or marriage);
185. see also Cass Sunstein, Is There a Constitutional Right to Clone? 5 (Chi. Pub. Law And Legal Theory Working Paper No. 22, 2002), available at http://www.law.uchicago.edu/academics/publiclaw/resources/ 22.Sunstein.Clone.pdf.
186. This parallels a point made about similar language from Carey. See supra text accompanying note 60.
187. Casey, 505 U.S. at 847 (emphasis added). This same theme underlies the state action analysis in Part IV. This particular argument for distinguishing the Casey language, like the one made to distinguish similar language in Carey, depends on the existence of the other genetic parent asserting an opposing interest. Thus, this argument would be unavailable for different alleged infringements of the right not to be a genetic parent where the state's action was contrary to the claims of both genetic parents-for example, if the state prohibited individuals from destroying cryopreserved preembryos, and instead required them to implant them themselves or make them available for "preembryo adoption" to other couples.
188. Cf. Kathryn Venturatos Lorio, The Process of Regulating Assisted Reproductive Technologies: What We Can Learn from Our Neighbors-What Translates and What Does Not, 45 LOY. L. REV. 247, 261 n.84 (1999) (citing laws in Australia, Germany, and Switzerland limiting couples to fertilizing only the number of eggs that will be implanted in one cycle). That said, as to that kind of alleged infringement, some of the other arguments discussed in this Part would still be available.
189. See, e.g., Harris v. State, 356 So. 2d 623, 624 (Ala. 1978) ("[T]his case presents the question of whether an unmarried man may unilaterally require his unmarried paramour to abort the fetus which he fathered, and, if he cannot, he is not liable for the child's support after its birth. We hold that he cannot [require an abortion], and that he is [liable for child support].");
190. People in the Interest of S.P.B., 651 P.2d 1213, 1216 (Colo. 1982) ("[T]he equal treatment which appellant seeks could only be achieved by according a father the right to compel the mother of his child to procure an abortion. This result is clearly foreclosed by Roe, Maher, and Danforth").
191. See, e.g., Kermit Roosevelt III, The Newest Property: Reproductive Technologies and the Concept of Parenthood, 39 SANTA CLARA L. REV. 79, 122 (1998).
192. Robertson, supra note 72, at 486-87;
193. see also Ruth Colker, Pregnant Men Revisited or Sperm Is Cheap, Eggs Are Not, 47 HASTINGS L.J. 1063, 1068 (1996);
194. Radhika Rao, Reconceiving Privacy: Relationships and Reproductive Technology, 45 UCLA L. REV. 1077, 1114 (1998).
195. Professor Cornell takes an opposite position, suggesting that "[t]he argument that the woman has the right to get rid of the fetus at the point of viability-but not to prevent the state from trying to keep it alive-is to take away from the woman her right to keep a baby, her baby, from happening." Cornell, supra note 90, at 363. But even on its own terms, her argument is premised on her expanded conception of bodily integrity for which gestation is necessary, and by which she differentiates men and women's rights regarding pregnancy.
196. Id. at 342-51. Therefore, even assuming arguendo that her expansive conception of bodily integrity is sound, on her account the abortion right does not seem to be implicated by the kind of pre-gestation cases we are discussing.
197. The argument that IVF is as much a waiver as engaging in coitus was made by the trial court in Kass v. Kass, No. 19658/93, 1995 WL 110368, at *3 (N.Y. Sup. Ct. Jan. 18, 1995).
198. The Court has suggested such a rule, by holding that the state's interest in fetal life only becomes compelling at viability. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992);
199. see also Roe v. Wade, 410 U.S. 113, 163-64 (1973).
200. See, e.g., Harris, 356 So. 2d at 624;
201. People in the Interest of S.P.B., 651 P.2d at 1214-16.
202. The closest the Court gets is in a portion of the Casey decision reflecting on the Danforth decision, where the Court calls the husband's stake in the coming into being of the child an "interest," while the wife's stake terminating the pregnancy is referred to as a "liberty," Casey, 505 U.S. at 895-96, and elsewhere as a full-fledged "right,"
203. id. at 844, 856. It would be tempting to treat this as a hook for suggesting that the interest not to be a genetic parent does not rise to the level of a fundamental constitutional "right," but I think that puts entirely too much weight on some stray language. In any event, as the unbundling from Part I shows, even if there was no constitutional right to be a genetic parent, that does not mean there is no constitutional right not to be one.
204. Of course, there is the language in Roe and similar language in Casey that the preservation of potential prenatal life becomes a compelling state interest only at the point of fetal viability. Roe, 410 U.S. at 163;
205. Casey, 505 U.S. at 871-72. But just because the state's interest pre-viability is insufficient to overcome the assertion of a single fundamental constitutional right, it does not follow that it cannot be used to break a tie between conflicting fundamental constitutional rights.
206. See also infra text accompanying notes 130-32.
207. J.B. v. M.B., 783 A.2d 707, 717 (N.J. 2001).
208. Reading the abortion cases as establishing a right not to be a gestational parent, but not as a right not to be a genetic parent, also makes it easier to defend viability as a relevant cut off. Viability becomes important because it is the point where the mother's ability to assert a right not to gestate has "run out," since she is not required to continue gestating. This seems to me to have significant benefits over an attempt to justify the viability line as a theory of personhood. Chief among the problems with the personhood theory is that viability is a "moving target," since advances in technology mean the point at which a fetus can survive outside the womb (viability) will recede. See City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 457-58 (1983) (O'Connor, J., dissenting). But if the viability point is a theory of personhood, it seems strange to think that the onset of personhood should change with the advancement of technology-that the development of neo-natological care could, for example, make eight-month-olds "persons" in 2007 but "non-persons" in 1907. On the other hand, perhaps some of this strangeness can be dispelled by viewing viability as a theory of legal and not ontological personhood; if changes in the law altered whether slaves and women were legal persons, why should changes in technology not have similar effects as to fetuses?
209. Ellen Waldman, The Parent Trap: Uncovering the Myth of "Coerced Parenthood" in Frozen Embryo Disputes, 53 AM. U. L. REV. 1021, 1060, 1062 (2004).
210. I evaluate whether the data Waldman relies on really proves her case, and discuss the nature of the interest in not being a genetic parent in more depth in Cohen, supra note 4 (manuscript at 22-23).
211. RESTATEMENT (SECOND) OF TORTS §§46 cmt. b, 436A (1965).
212. It would seem to imply that recognition of the torts of negligent and intentional infliction of emotional distress, even absent physical injury, is constitutionally compelled (at least against government tortfeasors where there is no state action problem).
213. 521 U.S. 702, 727 (1997).
214. Id. at 720-21
215. (quoting Moore v. City of E. Cleveland, 431 U.S. 503 (1977)).
216. Id.
217. (quoting Palko v. Connecticut, 302 U.S. 319, 325-26 (1937)).
218. Compare id. at 722,
219. and Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989) (Scalia, J.) (arguing for specific description of rights),
220. with id. at 139 (Brennan, J., dissenting) (arguing for a more general description). Depending on one's view of this question one might look for a "tradition" as to frozen preembryos or parenthood through assisted reproduction on the one hand, or simply think more generalized traditions as to non-assisted reproduction are sufficient.
221. See, e.g., Beard v. Skipper, 451 N.W.2d 614, 614-15 (Mich. Ct. App. 1990) (mother misrepresents use of birth control);
222. Hughes v. Hutt, 455 A.2d 623, 624-25 (Pa. 1983) (mother ceases taking birth control without telling the father and refuses to have an abortion). Other cases have precluded tort suits by fathers due to such misrepresentations.
223. See Lasher v. Kleinberg, 164 Cal. Rptr. 618, 619 (Cal. Ct. App. 1980);
224. Linda D. v. Fritz C., 687 P.2d 223, 225-27 (Wash. Ct. App. 1984);
225. see also C.A.M. v. R.A.W, 568 A.2d 556 (N.J. Super. Ct. App. Div. 1990) (suit by mother against father for false representation as to having a vasectomy).
226. For a more detailed discussion of the case law in this area, see Jill E. Evans, In Search of Paternal Equity: A Father's Right to Pursue a Claim of Misrepresentation of Fertility, 36 LOY. U. CHI. L.J. 1045, 1065-92 (2005).
227. See, e.g., S.F. v. State ex rel. T.M., 695 So. 2d 1186 (Ala. Civ. App. 1996) (intoxication to the point of unconsciousness and sexual assault);
228. Evelyn v. Shire, No. 242681, 2004 WL 314915 (Mich. Ct. App. Feb. 19, 2004) (fourteen-year-old father's claim of incapacity to consent);
229. Mercer County Dep't of Soc. Servs. ex rel. Imogene T. v. Alf M., 589 N.Y.S.2d 288 (N.Y. Fam. Ct. 1992) (same claim by a sixteen-year-old father).
230. See generally Dana Johnson, Child Support Obligations That Result from Male Sexual Victimization: An Examination of the Requirement of Support, 25 N. ILL. U. L. REV. 515, 519-29 (2005) (collecting cases on statutory rape of men and imposition cf child support).
231. See supra text accompanying note 95.
232. If we accept the first strategy and find that the right not to be a genetic parent is not a fundamental right, any infringement will be reviewed only for rational basis, and the types of considerations I discuss here seem readily to pass that deferential standard.
233. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (plurality opinion)
234. (quoting Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring in judgment)).
235. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326-27 (2003);
236. Burson v. Freeman, 504 U.S. 191, 211 (1992).
237. See, e.g., Carey v. Population Servs. Int'l, 431 U.S. 678, 696 (1977);
238. Griswold v. Connecticut, 381 U.S. 479, 504 (1965).
239. David D. Meyer, The Paradox of Family Privacy, 53 VAND. L. REV. 527, 537 (2000).
240. Roe v. Wade, 410 U.S. 113, 156-64 (1973);
241. id. at 170-71 (Stewart, J., concurring) (applying strict scrutiny).
242. Meyer, supra note 119, at 537
243. (citing Daniel A. Farber & John E. Nowak, Beyond the Roe Debate: Judicial Experience with the 1980's "Reasonableness " Test, 76 VA. L. REV. 519, 523 (1990)).
244. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 873-74 (1992). Concurring in part, Justice Blackmun would have hewn more closely to the strict scrutiny form of analysis.
245. Id. at 925-26 & n.1;
246. see also Lawrence v. Texas, 539 U.S. 558, 595 (2003) (Scalia, J., dissenting) ("We have since rejected Roe's holding that regulations of abortion must be narrowly tailored to serve a compelling state interest, and thus, by logical implication, Roe's holding that the right to abort an unborn child is a 'fundamental right.'" (citations omitted)). In the Court's most recent partial birth abortion decision, Gonzales v. Carhart, the majority says it "assume[d]" that the principles of Casey and the undue burden test apply.
247. S. Ct. 1610, 1626-27, 1635 (2007). Justice Scalia and Thomas, though joining the majority, would have overruled Casey and Roe.
248. Id. at 1639-40 (Thomas, J., concurring). This suggests that the undue burden test is, at the present moment, still good law.
249. See, e.g., Meyer, supra note 119, at 538-39. For example, Professor Meyer notes that the Pennsylvania law at issue in Casey requiring that information about the risks of abortion be given by a licensed physician and not a qualified assistant survives the undue burden standard but would fail strict scrutiny.
250. Id. at 539 n.52.
251. Particularly revealing in coming to this conclusion is the Court's citation of Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483 (1955), the standard citation for rational basis review.
252. See Meyer, supra note 119, at 539 n.52
253. (quoting Casey, 505 U.S. at 884-85).
254. 696 N.E.2d 174, 180 (N.Y. 1998).
255. Id.
256. Robertson, supra note 34, at 1002 (2001);
257. see also CHARLES FRIED, CONTRACT AS PROMISE 13 (1981) (noting how promise enables the pursuit of "more intricate, more far-reaching projects").
258. See, e.g., DEBORA L. SPAR, THE BABY BUSINESS 15 (2006);
259. DEP'T OF HEALTH & HUMAN SERVS., CTR. FOR DISEASE CONTROL, 2003 ASSISTED REPRODUCTIVE TECHNOLOGY REPORT: NATIONAL SUMMARY (2003), available at http://apps.nccd.cdc.gov/ART2003/ nation03.asp.
260. For more on the benefits of these contracts, see Cohen, supra note 4 (manuscript at 36-43).
261. Preembryo disposition disputes in the absence of an agreement present a hard middle ground. The interests furthered by contract and reproductive autonomy are certainly weaker in the application of a default rule, suggesting that silence during the cryopreservation of preembryos will be read as consent to implantation.
262. Roe v. Wade, 410 U.S. 113, 163-64 (1973);
263. see also Davis v. Davis, 842 S.W.2d 588, 603 (Tenn. 1992) ("[I]f the state's interests do not become sufficiently compelling in the abortion context until the end of the first trimester, after very significant developmental stages have passed, then surely there is no state interest in these preembryos which could suffice to overcome the interests of the gamete-providers.").
264. Laurence H. Tribe, Commentary, The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence, 99 HARV. L. REV. 330, 341 (1985) (emphasis added).
265. I say "as to forced gestational parenthood," but in the regular abortion context it is actually as to the combination of gestational, genetic, and legal parenthood. If the Constitution also prohibits barring gestational surrogates from abortion, then it is as to forced gestational parenthood, standing alone.
266. Cf. Stenberg v. Carhart, 530 U.S. 914, 946-47 (2000)
267. (Stevens, J., concurring) ("Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of 'potential life' than the equally gruesome procedure Nebraska claims it still allows.... [T]he notion that... the State furthers any legitimate interest by banning one but not the other, is simply irrational"). If, by contrast, the Court decided it would only enforce agreements that called for implantation, that might raise equal protection claims.
268. The Casey Court broke from Roe in acknowledging that "there is a substantial state interest in potential life throughout pregnancy," and that the state can burden that right so long as it does not do so in a way that is "undue," which the Court connects to a distinction between "inform[ing]" choice and "placing a substantial obstacle in the path of a woman's choice." Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 876-77 (1992).
269. Civil Rights Cases, 109 U.S. 3, 11 (1883) (emphasis added);
270. see U.S. CONST. amend. XIV;
271. see also Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619 (1991).
272. Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974)
273. (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948)).
274. Id. at 349-50
275. (citing Moose Lodge v. Irvis, 407 U.S. 163, 172 (1972);
276. Burton v. Wilmington Parking Auth., 365 U.S. 715, 723 (1961)).
277. In J.B. v. M.B., the New Jersey intermediate appellate court noted, without resolving the issue, that it was "not clear that judicial enforcement of the alleged private contract would constitute state action under the Fourteenth Amendment." 751 A.2d 613, 619
278. (N.J. Super. Ct. App. Div. 2000) (citing cases). On appeal, the New Jersey Supreme Court noted the lower court's point as to state action but said that "resolution of the constitutional issue was not necessary to dispose of the litigation."
279. J.B. v. M.B., 783 A.2d 707, 711 (N.J. 2001). However, the court relied heavily on a federal constitutional right not to procreate in its opinion but never returned to the issue. The only discussion of the problem I have found in academic commentary on these cases discusses the issue in a fairly conclusory way.
280. See Falasco, supra note 3, at 279 ("Although a court's construction of a local contract under local law does not provide the necessary state action to implicate the United States Constitution, the Constitution's guiding principles can be used in deciding how to enforce a contract in light of the fundamental rights associated with one's personal liberty.").
281. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).
282. Gillian E. Metzger, Privatization as Delegation, 103 COLUM. L. REV. 1367, 1412 (2003)
283. (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999)).
284. Id.;
285. see also, e.g., Sarah Rudolph Cole, Arbitration and State Action, 2005 B.Y.U. L. REV. 1, 7 (describing the three tests employed by the Court);
286. Ronald J. Krotoszynski, Jr., Back to the Briarpatch: An Argument in Favor of Constitutional Meta-Analysis in State Action Determinations, 94 MICH. L. REV. 302, 314-21 (1995) (similar).
287. Metzger, supra note 140, at 1412 (citing cases);
288. see also Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001) (recent re-statement of the tests).
289. 334 U.S. 1 (1948).
290. Id. at 4-5.
291. Id. at 5-6.
292. Id. at 20.
293. Id. at 11-13.
294. Id. at 13.
295. Id. at 13-14.
296. Id. at 19.
297. For some representative work on the subject, see Louis Henkin, Shelley v. Kraemer: Notes for a Revised Opinion, 110 U. PA. L. REV. 473 (1962);
298. Thomas P. Lewis, The Meaning of State Action, 60 COLUM. L. REV. 1083 (1960);
299. Louis H. Pollak, Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler, 108 U. PA. L. REV. 1 (1959);
300. Mark Tushnet, Shelley v. Kraemer and Theories of Equality, 33 N.Y.L. SCH. L. REV. 383 (1988);
301. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959).
302. See Davis v. Prudential Sec., Inc., 59 F.3d 1186, 1191 (11th Cir. 1995);
303. Parks v. "Mr. Ford," 556 F.2d 132, 136 (3d. Cir. 1977);
304. Hardy v. Gissendaner, 508 F.2d 1207, 1210 (5th Cir. 1975);
305. Linn Valley Lakes Prop. Owners Ass'n v. Brockway, 824 P.2d 948, 951 (Kan. 1992);
306. Midlake on Big Boulder Lake Condo. Ass'n v. Cappuccio, 673 A.2d 340, 342 (Pa. Super. Ct. 1996);
307. see also, e.g., Cole, supra note 141, at 10.
308. Krotoszynski, supra note 141, at 317.
309. See, e.g., Cole, supra note 141, at 11 n.43;
310. Steven Siegel, The Constitution and Private Government: Toward the Recognition of Constitutional Rights in Private Residential Communities Fifty Years After Marsh v. Alabama, 6 WM. & MARY BILL RTS. J. 461, 496 (1998).
311. Dissenting opinions in subsequent cases have read Shelley this way. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 635 (1991)
312. (O'Connor, J., dissenting) (emphasizing that in Shelley the "state courts were called upon to enforce racially restrictive covenants against sellers of real property who did not wish to discriminate" (emphasis added));
313. see Bell v. Maryland, 378 U.S. 226, 330-31 (1964)
314. (Black, J., dissenting) (arguing that under Shelley the Fourteenth Amendment only becomes involved when "an owner of property is willing to sell and a would-be purchaser is willing to buy").
315. See also Henry C. Strickland, The State Action Doctrine and the Rehnquist Court, 18 HASTINGS CONST. L.Q. 587, 606 (1991) ("[T]he Court seldom cites [Shelley] even when it is relevant, largely leaving it as an isolated anomaly.").
316. Sarah Rudolph Cole & E. Gary Spitko, Arbitration and the Batson Principle, 38 GA. L. REV. 1145, 1161 & n.68 (2004).
317. 59F.3d 1186, 1190 (11th Cir. 1995).
318. Id. at 1192 (citations omitted).
319. See Desiderio v. Nat'l Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 206 (2d Cir. 1999);
320. Fed. Deposit Ins. Co. v. Air Fla. Sys., Inc., 822 F.2d 833, 842 n.9 (9th Cir. 1987);
321. Elmore v. Chi. & Ill. Midland Ry. Co., 782 F.2d 94, 96 (7th Cir. 1986);
322. see also Cole, supra note 141, at 4 n.11 (collecting lower court cases). Interestingly, the consensus in legal commentary is to find state action here.
323. Cole & Spitko, supra note 156, at 1161-62 & n.69 (citing commentators).
324. Richard C. Reuben, Public Justice: Toward a State Action Theory of Alternative Dispute Resolution, 85 CAL. L. REV. 577, 622 (1997).
325. Id. at 621.
326. Id. at 628 (footnotes omitted). Here, Reuben is referring specifically to the California arbitration scheme.
327. Id. at 627-28 & nn.265-68
328. (citing CAL. CIV. PROC. CODE §§ 1281.2, 1284-86, 481.010-493.060 (West 1982 & Supp. 1996)).
329. Id. at 629
330. (citing CAL. CIV. PROC. CODE §1282.6 (West Supp. 1996);
331. CAL. CIV. PROC. CODE §§ 1283, 1283.05, 1283.1 (West 1982));
332. see also id. ("[T]he argument that arbitration is state action is much more than a call for an extension of Shelley," because "the dramatic intertwining of public and private actors in contractual arbitration pervades the entire seemingly private process, including but (unlike Shelley) not limited to the mere stage of enforcement."). One might be tempted to call on pervasive government oversight over the reproductive medical sector as a distinguishing factor. But this claim founders on both factual and doctrinal shoals. Factually, reproductive technology is actually quite unregulated in the United States as compared to most major Western countries.
333. E.g., SPAR, supra note 127, at 66-67, 228. As a doctrinal matter, pervasive regulation is itself insufficient to establish state action. As the Court noted in Blum v. Yaretsky "although it is apparent that nursing homes in New York are extensively regulated, '[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment.'"
334. U.S. 991, 1004 (1982)
335. (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974)).
336. And the mere licensing of fertility doctors seems clearly insufficient to make the state "a partner or even a joint venturer" in their conduct. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 177 (1972) (state granting of a liquor license to private club that racially discriminated insufficient to establish state action).
337. The claim that parentage determinations are themselves state action seems straightforward. The Court appears to assume state action in Michael H. v. Gerald D., 491 U.S. 110 (1989),
338. where a genetic father brought a constitutional challenge against a California law that treated the husband of the birth mother as the father with only a limited window to rebut that presumption, without explicitly discussing the point. There is an explicit discussion of state action in Palmore v. Sidoti, 466 U.S. 429 (1984), where a state court's decision shifting custody of a child from the mother to the father because the mother had allowed her African American boyfriend to move in with her was found unconstitutional,
339. id. at 432 n.1, although the issue was custody, not parentage.
340. Cf. Dubay v. Wells, 442 F. Supp. 2d 404, 410 (E.D. Mich. 2006);
341. Child Support Enforcement Agency v. Doe, 125 P.3d 461, 468 (Haw. 2005) (finding no state action in claims by men attempting to avoid legal parentage and its attendant financial obligations in cases involving deception by the woman as to her use of contraceptives);
342. see also N.E. v. Hedges, 391 F.3d 832, 834 (6th Cir. 2004) (noting but not resolving a similar argument).
343. See supra text accompanying note 13. Moreover, the success rate for IVF is quite low, even lower with frozen preembryos, so many implantations will not lead to successful child births.
344. See SPAR, supra note 127, at 53-55.
345. 501 U.S. 663 (1991).
346. Id. at 668.
347. Alan E. Garfield, Promises of Silence: Contract Law and Freedom of Speech, 83 CORNELLL. REV. 261, 350 (1998)
348. (quoting Cohen, 501 U.S at 668).
349. Id.;
350. Susan M. Gilles, Promises Betrayed: Breach of Confidence as a Remedy for Invasions of Privacy, 43 BUFF. L. REV. 1, 64 (1995).
351. E.g., Gilles, supra note 170, at 64.
352. For a discussion on the various forms the doctrine has taken historically, see generally, for example, Eric Mills Holmes, The Four Phases of Promissory Estoppel, 20 SEATTLE U. L. REV. 45 (1996).
353. Cf. David J. Barron, Privatizing the Constitution: State Action and Beyond, in THE REHNQUIST LEGACY 345, 352 (Craig M. Bradley ed., 2005) (suggesting that the pre-Rehnquist state action doctrine "recognized the realist point that individuals were located within a broader society, and that the broader society established-through law-the structures within which individuals operated," and therefore "[t]here was, then, no private domain that, a priori, was unaffected by or free from law");
354. Gary Peller & Mark Tushnet, State Action and a New Birth of Freedom, 92 GEO. L.J. 779, 789 (2004) ("The state action doctrine is analytically incoherent because, as Hohfeld and Hale demonstrated, state regulation of so-called private conduct is always present, as a matter of analytic necessity, within a legal order.").
355. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1711 (2d ed. 1988) (citations omitted).
356. Shelley v. Kraemer, 334 U.S. 1, 19 (1947).
357. 376 U.S. 254 (1964).
358. Id. at 256-59, 279-80.
359. Id. at 265.
360. Henkin, supra note 151, at 481.
361. 387 U.S. 369, (1967);
362. e.g., Gregory P. Magarian, The First Amendment, the Public-Private Distinction, and Nongovernmental Suppression of Wartime Political Debate, 73 GEO. WASH. L. REV. 101, 137 (2004).
363. Reitman, 387 U.S. at 380-81.
364. Id. at 381 (emphasis added).
365. Id. at 394-95 (Harlan, J., dissenting);
366. see also TRIBE, supra note 173, at 1697.
367. 526 U.S. 40 (1999)
368. (quoting Pennsylvania's Workers' Compensation Act, 77 PA. STAT. ANN. § 1 (Purdon 1992 and Supp. 1998));
369. id. at 48.
370. Id. at 45.
371. Id. at 45-46.
372. Id. at 47-48.
373. Id. at 50
374. (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982));
375. see also id. at 53, 58. As a formal matter, because the suit was brought under § 1983, the actual question was whether the plaintiffs could establish that "the alleged deprivation was committed under color of state law," not state action.
376. Id. at 49-50. But, as the Court recognized, "[w]here, as here, deprivations of rights under the Fourteenth Amendment are alleged, these two requirements converge," and the Court accordingly relied on its state action cases to reach its conclusion.
377. Id. at 50 & n.8 (citation omitted).
378. Id. at 53.
379. Id.
380. See also Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 165 (1978) ("[T]he mere denial of judicial relief is [not] . . . sufficient encouragement to make the State responsible for those private acts ....").
381. 489 U.S. 189, 191-95 (1989);
382. see also Town of Castle Rock v. Gonzales, 545 U.S. 748, 755 (2005).
383. DeShaney, 489 U.S. at 195.
384. Cf. West, supra note 76, at 2132-35 (making a similar point as to abortion).
385. Australia, Germany, and Switzerland have such laws limiting the fertilization of eggs to those that will be implanted in one cycle. See Lorio, supra note 94, at 261 n.84.
386. LA. REV. STAT. ANN. § 9:129 (2006). Assuming there exists a constitutional right not to be a genetic parent, it is not clear that the Louisiana statute necessarily infringes upon that right because while it prohibits preembryo destruction, it does not mandate implantation - so indefinite cryopreservation may be done without violating the statute. But what about a case where the genetic parents were unwilling or financially unable to continue cryopreservation? As discussed earlier, even if there is an infringement here it may survive the appropriate level of constitutional scrutiny.
387. TRIBE, supra note 173, at 1691;
388. Charles L. Black, Jr., The Supreme Court 1966 Term-Foreword: "State Action," Equal Protection, and California's Proposition 14, 81 HARV. L. REV. 69, 95 (1967);
389. Henry J. Friendly, The Public-Private Penumbra-Fourteen Years Later, 130 U. PA. L. REV. 1289, 1290 (1982).
390. It would be tempting to distinguish the abortion hypothetical because the form of the state's remedial intervention seems a good deal more coercive. But, for state action purposes, the Court seems relatively insensitive as to what form the enforcement of a contract takes. For example, under the Court's jurisprudence it does not matter for state action purposes whether the remedy for breach of the contract is damages or specific performance. In Barrows v. Jackson, decided five years after Shelley, where damages were sought against a covenantor who violated a racially restrictive covenant, the Court found state action reasoning that damages would have "coerced to continue to use her property in a discriminatory manner" such that it was not "respondent's voluntary choice but the State's choice that she observe her covenant or suffer damages."
391. U.S. 249, 251, 254 (1953). The Court had to employ a very broad sense of coercion to reach this result, a sense that Chief Justice Vinson, who authored the Shelley decision, expressly disagreed with in dissent, concluding that there was no state action.
392. Id. at 268
393. (Vinson, C.J., dissenting). In another sense though, perhaps Barrows is the easier case for state action since the state is more involved in that it has to make a determination of the value of lost performance rather than merely order performance.
394. See United States v. Kozminski, 487 U.S. 931, 942 (1988).
395. See, e.g., Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 NW. U. L. REV. 480 (1990).
396. For work critical of this argument, see, for example, Note, Rumpelstiltskin Revisited: The Inalienable Rights of Surrogate Mothers, 99 HARV. L. REV. 1936, 1937-38 (1986).
397. These considerations seem less relevant as a reason for refusing to allow a damages measure for contracts compelling genetic or gestational parenthood, a matter I discuss elsewhere. Cohen, supra note 4 (manuscript at 57-59).
398. E.g., Melvin A. Eisenberg, Actual and Virtual Specific Performance, the Theory of Efficient Breach, and the Indifference Principle in Contract Law, 93 CAL. L. REV. 975, 1016, 1025 (2005). These concerns are present in weaker form when the contract calls for the termination of a pregnancy.
399. Cf. Susan M. Wolf, Enforcing Surrogate Motherhood Agreements: The Trouble with Specific Performance, 4 N.Y.L. SCH. HUM. RTS. ANN. 375, 393 (1987) (making a similar point as to agreements by a surrogate to relinquish custody). Contracts to provide sperm or egg are more nuanced since we need to distinguish cases where the gametic material has not yet been provided from attempts to retake gametic material already provided but not yet used.
400. It is not clear that there is a textual hook for such a distinction,
401. In favor of making the right waiveable, see Robertson, supra note 34, at 1029 ("There is no a priori constitutional reason, however, why a state could not prefer to honor the free ... and knowing waiver or relinquishment of reproductive rights when the interests of others who relied on the waiver or relinquishment would be significantly hurt, and such waiver enabled the parties to engage in the socially useful practice of treating infertility." (citation omitted) (emphasis added)). For an opposing view as to surrogacy,
402. see Larry Gostin, A Civil Liberties Analysis of Surrogacy Arrangements, 17 J. CONTEMP. HEALTH L. & POL'Y 432, 443 (2001) (arguing that a surrogate's constitutional right not to have an abortion cannot be waived in advance).
403. The argument relates to advance waiver; there is no dispute that competent adults can contemporaneously waive any constitutional right by means of non-assertion. In part this is a function of the Article III standing doctrine: Generally speaking, an individual must bring suit to assert violations of his rights.
404. See, e.g., Warth v. Seldin, 422 U.S. 490, 499 (1975). There are, of course, exceptions allowing third-party standing,
405. see ERWIN CHEMERINSKY, FEDERAL JURISDICTION 84-91 (5th ed. 2007), but a third party cannot assert the right of an individual when that individual affirmatively chooses not to sue and assert his own right.
406. Campbell v. Wood, 18 F.3d 662, 671 (9th Cir. 1994) (internal citations omitted);
407. see also Rubin, supra note 28, at 494 ("[M]ost rights connected with criminal adjudications can be waived ....").
408. 5 WAYNE R. LAFAVE, SEARCH & SEIZURE 438-39 (4th ed. 2004);
409. see also Samson v. California, 574 U.S. 843 (2006) (upholding suspicionless search of parolee as not violating the federal constitution). Professor Gostin attempts to resist the notion of advanced waivers of constitutional rights in the context of surrogacy by pointing to a few exceptions in the criminal procedure area: a criminal defendant's inability to irrevocably waive his right to be present at a capital trial, his right to raise a plea of incompetence to stand trial, or his right to assert a privilege against self-incrimination.
410. Gostin, supra note 204, at 443
411. (citing Stevens v. Marks, 383 U.S. 234, 244 (1986),
412. Pate v. Robinson, 383 U.S. 375, 384-85 (1966),
413. Diaz v. United States, 223 U.S. 442, 455 (1912),
414. and Lewis v. United States, 146 U.S. 370, 372 (1892)). Professor Coleman relies on the same cases in the preembryo disposition context.
415. See Coleman, supra note 1, at 92 n.184. But these examples do not stand up, even on their own terms.
416. The Pate Court makes clear that its decision is not that one can never waive a competence claim because the right is inalienable, but rather a failure to meet the waiver standard, noting it is "contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently 'waive' his right to have the court determine his capacity to stand trial." Pate, 383 U.S. at 384.
417. The Diaz court is drawing a pragmatic distinction between presence at capital and noncapital trial, because capital defendants are never released on bail. For a defendant free on bail, if it were enough to halt the proceedings for a defendant not to show up to court, that would give him the luxury of stopping the proceedings at any time. See Diaz, 223 U.S. at 457-58. The Supreme Court has reaffirmed in several non-capital cases that a defendant can waive his presence at trial.
418. See Taylor v. United States, 414 U.S. 17, 18-19 (1973);
419. Illinois v. Allen, 397 U.S. 337, 342-43 (1970);
420. see also Commonwealth v. L'Abbe, 656 N.E.2d 1242 (Mass. 1995) (affirming the lower court's acceptance of the defendant's waiver of his right to be at trial). Furthermore, waiver is explicitly contemplated by the Federal Rules of Criminal Procedure.
421. See FED. R. CRIM. P. 43;
422. Taylor, 414 U.S. at 20;
423. 3A CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 723 (2d ed. 1982). Even as to defendants in capital cases, there is a division of authority as to whether a defendant is barred from waiving his right to be present at trial.
424. Compare L'Abbe v. DiPaolo, 311 F.3d 93, 97-98 (1st Cir. 2002) ("[T]he Supreme Court has never directly ruled on the issue of whether a criminal defendant can waive his right to presence in a capital case. In fact, the Court specifically reserved this question in Drope v. Missouri: 'Our resolution of the first issue . . . makes it unnecessary to decide whether, as he contends, it was constitutionally impermissible to conduct the remainder of his trial on a capital offense in his ... absence .... ' 420 U.S. 162, 182 (1975)."),
425. with Proffitt v. Wainwright, 685 F.2d 1227, 1257 (11th Cir. 1982) ("[O]ur review of the relevant case law convinces us that presence at a capital trial is nonwaivable.").
426. As to the privilege against self-incrimination, we allow a form of waiver whenever someone signs a confession or pleads guilty. See, e.g., Boykin v. Alabama, 395 U.S. 238, 243 (1969).
427. In any event, even if we granted these examples, they seem like exceptions that prove the rule.
428. See Rubin, supra note 28, at 513-14 (discussing consent decrees and settlements as forms of waiver in private law adjudication).
429. See, e.g., United States v. Armour & Co., 402 U.S. 673, 682 (1971) (noting that "the defendant has, by the [consent] decree, waived his right to litigate the issues raised, a right guaranteed to him by the Due Process Clause");
430. Erie Telecomms., Inc. v. City of Erie, 853 F.2d 1084, 1094 (3d Cir. 1988) (plaintiff's execution of a release "constitutes a contractual waiver of its right to challenge the validity of the franchise agreement as violative of the first and fourteenth amendments" (emphasis omitted));
431. see also Rubin, supra note 28, at 514.
432. 9 U.S.C. §§ 1-16 (2000).
433. See, e.g., Rubin, supra note 28, at 518-20 (discussing arbitration as waiver of a civil adjudication);
434. Stephen J. Ware, Arbitration Clauses, Jury-Waiver Clauses, and Other Contractual Waivers of Constitutional Rights, 67 LAW & CONTEMP. PROBS. 167, 177-80 (2004).
435. 405 U.S. 174, 176 (1972);
436. see also Rubin, supra note 28, at 517 (discussing cognovit notes as waiver).
437. 405 U.S. at 184, 187 (citation omitted).
438. Id. at 188;
439. see also Rubin, supra note 28, at 517-18 (reading the case as suggesting that "contract law provides the standard for determining whether civil law waivers satisfy the due process clause").
440. See Ware, supra note 212, at 189-97. Indeed, the entire doctrine of unconstitutional conditions can be thought of as form of advance waiver of constitutional rights.
441. See, e.g., Richard A. Epstein, The Supreme Court, 1987 Term - Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 HARV. L. REV. 4, 11 (1987);
442. Kathleen Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1477-89 (1998). Because "[t]he unconstitutional conditions cases ask not whether a constitutional right is inalienable in general, but rather whether it may be relinquished to government,"
443. Sullivan, supra, at 1488-89 (emphasis omitted), I find it to be a less useful analogy.
444. Rubin, supra note 28, at 521-22.
445. 444 U.S. 507, 510-11 (1980) (per curiam).
446. Id. at 507.
447. Id. at 508-16.
448. Id. at 510 & n.3.
449. Id. at 510.
450. Id.;
451. see also G. Richard Shell, Contracts in the Modern Supreme Court, 81 CAL. L. REV. 431, 479 (1993). That said, it is doubtful that the government could force an employee to waive all First Amendment rights as a condition of public employment.
452. See Pickering v. Bd. of Educ, 391 U.S. 563, 568 (1968).
453. See Garfield, supra note 169, at 354-55;
454. G. Michael Harvey, Confidentiality: A Measured Response to the Failure of Privacy, 140 U. PA. L. REV. 2385, 2452 (1992).
455. The Federal Courts of Appeals have as well. See, e.g., Lake James Cmty. Volunteer Fire Dept, Inc. v. Burke County, 149 F.3d 277, 278 (4th Cir. 1998) (enforcing a voluntary agreement by a fire department with advice of counsel "not to sue a county for approving the transfer of certain fire protection areas to other fire departments" despite the claim that it required "the fire department to waive its First Amendment right to petition the government" (emphasis omitted));
456. Leonard v. Clark, 12 F.3d 885, 889-92 (9th Cir. 1993) (holding that there was a valid waiver of union's First Amendment rights where union agreed in a collective bargaining agreement provision that if union endorsed state payroll-increasing legislation and that legislation passed, that worker salaries would be reduced);
457. Paragould Cablevision, Inc. v. City of Paragould, 930 F.2d 1310, 1314-15 (8th Cir. 1991) (holding that a franchise agreement requiring Paragould to notify and get approval from Cablevision before soliciting advertising to air on its system did not violate the First Amendment, because "[b]y entering into the franchise agreement... Cablevision effectively bargained away some of its free speech rights"). For a more thorough discussion of the myriad types of contracts that concern speech,
458. see Garfield, supra note 169.
459. 501 U.S. 663 (1991).
460. Id. at 665.
461. Id. at 666.
462. Id. at 667-72.
463. Id. at 670 (citations omitted) (emphasis added).
464. Together, Cohen and Snepp suggest that it is immaterial for the waiver analysis whether the remedy sought for breach of the contract is an injunctive remedy (as in Snepp) or a damages remedy (as in Cohen). In the area of the First Amendment, specifically, there is a general reluctance to impose prior restraints, but as Snepp shows, this may drop out in cases of waiver.
465. Justice Souter's dissent in Cohen unsuccessfully argues something similar of the press's First Amendment rights. Cohen, 501 U.S. at 677-78 (Souter, J., dissenting) ("Nor can I accept the majority's position that we may dispense with balancing because the burden on publication is in a sense 'self-imposed' by the newspaper's voluntary promise of confidentiality. This suggests both the possibility of waiver, the requirements for which have not been met here, as well as a conception of First Amendment rights as those of the speaker alone, with a value that may be measured without reference to the importance of the information to public discourse." (citations omitted)). Whatever the merits of this critique, it is hard to see the right not to be a genetic parent as a right belonging to the collective.
466. See Pollock v. Williams, 322 U.S. 4, 24 (1944) (noting that the state "may not directly or indirectly command involuntary servitude, even if it was voluntarily contracted for"). This definitional problem is the Millian justification for making slavery contracts unenforceable, despite Mill's general anti-paternalist bent.
467. MILL, supra note 74, at 107 ("The principle of freedom cannot require that he should be free not to be free."). It is also unlikely that the rights granted by the voting amendments could be relinquished by a contractual waiver,
468. see U.S. CONST, amends. XIX, XXIII, XIV, XVI, although here the rationale might again be that the right is a type of collective right.
469. The contract at issue in the surrogacy contract case of Baby M contained language requiring that the surrogate not abort the fetus she was carrying. 525 A.2d 1128, 1143 (N.J. Super. Ct. Ch. Div. 1987). The trial court found this provision unenforceable because of Roe, but the reasoning fails to distinguish the existence of the right (which Roe clearly finds) from whether it can be waived by contract.
470. See id. at 1159. It also ignores the question of whether 7?oe's prohibition on state interference or penalization of the right not to gestate extends to private interference or penalties, the state action question of Part IV. On appeal, the New Jersey Supreme Court did not reach this part of the holding.
471. Martha Bohn refers to an unreported case from Kentucky, Breidenbach v. Hayden, where a man paid his lover $20,500 to get an abortion, and when she failed to do so sought return of the funds on an unjust enrichment or restitution theory.
472. Martha A. Bohn, Note, Contracts Concerning Abortion, 31 U. LOUISVILLE J. FAM. L. 515, 526 (1992-1993). The court found the contract unenforceable as against public policy reasoning "that since the state could not allow a spouse to veto a woman's decision concerning abortion, the state could not allow a spouse or putative father to have the power to require a woman to obtain an abortion."
473. Id. at 527. But this again confuses the existence of a right with its waiveability. In fact, the plaintiff was not seeking an injunction or even damages to remedy the breach, merely restitution of the funds the defendant had promised to use in a way that she did not.
474. On the other side, a Missouri case involving a father who disinherited his unwed pregnant daughter, but agreed to put her back in the will if she would terminate her pregnancy, which she did, actually found the contract enforceable notwithstanding that getting an abortion was the consideration. L.G. v. F.G.H, 729 S.W.2d 634 (Mo. Ct. App. 1987). But the setting is unusual, and involved a unilateral contract that could only be accepted by performance, so in a real sense it could not be enforced against the daughter.
475. IND. CODE § 31-20-1-1 (2007);
476. N.H. REV. STAT. ANN. § 168-B:27 (2007).
477. See, e.g., Coleman, supra note 1, at 93 (arguing that these contracts are unenforceable as a matter of contract law).
478. 268 U.S. 510 (1925). Whether the school could get specific performance compelling the student's attendance is less likely, not for any constitutional reason, but for contract law's usual difficulties with compelled labor.
479. Tribe, supra note 131, at 332, 337-38.
480. This view is given a possible doctrinal hook in Justice Ginsberg's dissent in Gonzales v. Carhart, which invokes a vision of the abortion right as an anti-subordination equal protection principle. 127 S. Ct. 1610, 1641 (2007) (Ginsburg, J., dissenting) ("[L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature."
481. (citing Sylvia Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 1002-28 (1984);
482. Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261 (1992))).
483. Rubin, supra note 28, at 512;
484. see also Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
485. N.H. REV. STAT. ANN. § 168-B:23(III) (2007).
486. Cf. Rubin, supra note 28, at 524 (discussing forfeiture of constitutional rights). Some of the cases I discussed imposing child support obligations on fathers in cases involving minimal or no consent have this reasoning.
487. See supra notes 111-112 and accompanying text. Alec Walen has discussed in depth the idea that engaging in the sex act can constitute an assumption of risk of the duty to be a gestational parent and offered a critique of that claim.
488. Alec Walen, Consensual Sex Without Assuming the Risk of Carrying an Unwanted Fetus; Another Foundation for the Right to an Abortion, 63 BROOK. L. REV. 1051 (1997);
489. see also West, supra note 76, at 2123, 2136-41 (evaluating the consent to unwanted gestational parenthood argument).
490. For a discussion whether, putting aside the constitutional question, forfeiture would be a desirable rule in this context, see Cohen, supra note 4 (manuscript at 61-69).
491. We might want to impose the fairly obvious requirements that the contract be in writing, that the agreement be separate from the consent form for IVF, that it make clear that it is a contract between the genetic parents and not an advanced directive to the clinic, and that it be unambiguous as to the contingencies it anticipates (i.e., specifying "divorce" as opposed to or in addition to "separation"). For criticisms of the actual forms used along these lines,
492. see A.Z. v. B.Z., 725 N.E.2d 1051, 1056-57 (Mass. 2000);
493. J.B. v. M.B., 783 A.2d 707, 713-14 (N.J. 2001).
494. Although I have largely bracketed off the question of selling sperm and egg, such agreements raise a further issue-is the waiver in such a case "voluntary" when it is done for pay? At a constitutional level, it does not seem that the waiver can be invalidated merely because it was "paid for." Both the settlement agreement and cognovit note examples are paid-for waivers, and at a higher level so was the waiver in Snepp - the CIA agent was paid a salary to take a job which had the waiver as a condition. The unconstitutional conditions cases, alluded to at supra note 211, further suggest that conditioning the waiver of a constitutional right on an expected benefit is not per se problematic. The institution of plea bargaining suggests much the same thing. As the Seventh Circuit noted, "Constitutional rights like other rights can be waived .... Often a big part of the value of a right is what one can get in exchange for giving it up."
495. United States v. Barnett, 415 F.3d 690, 691 (7th Cir. 2005) (Posner, J.).
496. I have reviewed the four strategies I think are most plausible. An additional strategy I do not develop here would be to accept that there is state action and that the Constitution provides a non-waiveable right not to be a genetic parent, but that it is trumped by a constitutionally recognized right to be a genetic parent. Some have argued for a constitutional right to be a genetic parent and rely on Skinner v. Oklahoma, 316 U.S. 535 (1942), striking down a law forcing thieves (but not embezzlers) to be sterilized after three convictions.
497. See, e.g., ROBERTSON, supra note 6, at 36-38. There are some problems with this strategy. It is far from certain that Skinner is applicable in the realm of assisted reproduction; for one thing, sterilization has a component of physical invasion, and thus a bodily integrity violation, not present in these cases.
498. See, e.g., Cruz, supra note 46, at 361 (suggesting that the rationale of Skinner was protection against a bodily integrity violation).
499. Even if Skinner applies, we might draw a distinction between cases where a party loses the possibility of being a genetic parent at all, as in Skinner, versus cases where a party loses the possibility of being a genetic parent to a particular fertilized preembryo. If the right cannot be derived from Skinner, claiming a fundamental right to be a genetic parent will run into problems with the Glucksberg historical approach, similar to the ones discussed above, supra text accompanying notes 110-114. Nor is it clear why, even if such a constitutional right exists, it should trump. It may be possible to overcome these concerns, but I do not focus on these issues here.
500. Much of what I have said here may have implications for reproductive cloning. But there are also important differences relating to, for example, an individual's interest in not being cloned, the state's interest in banning or allowing cloning, and the fear that the process might be harmful to the clone. I hope to address these issues in future work.
501. Washington v. Glucksberg, 521 U.S. 702, 735 (1997).
502. See Cohen, supra note 4.