The right not to be a genetic parent?

Southern California Law Review

Volumn 81, Issue 6, 2008, Pages 1115-1196

  Cohen, I Glenn ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 56649084833     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (534)

1. These were the facts alleged by the plaintiff in Phillips v. Irons, No. 1-03-2992, 2005 WL 4694579, at *1 (Ill. App. Ct. Feb. 22, 2005). In the actual case, the court's involvement began only after the woman had allegedly used the sperm to inseminate herself.
2. Id.
3. E.g., In re Marriage of Witten, 672 N.W.2d 768, 772 (Iowa 2003). For more information on the IVF and cryopreservation process,
4. see, for example, Carl H. Coleman, Procreative Liberty and Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes, 84 MLNN. L. REV. 55, 58-63 (1999).
5. None of these courts allowed the preembryos to be used for implantation even when there was an agreement so providing. Two courts found the particular agreements at issue flawed but indicated, in dicta, that even if faced with a valid agreement they would refuse to enforce it. A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000);
6. J.B. v. M.B., 783 A.2d 707 (N.J. 2001).
7. 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 his or her contemporaneous objection. In re Marriage of Witten, 672 N.W.2d at 780.
8. 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. Davis v. Davis, 842 S.W.2d 588, 597-98 (Tenn. 1992).
9. Finally, one court found such agreements enforceable, but the agreement in question mandated preembryo destruction, and thus its performance would not impose unwanted parenthood. 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."
10. FLA. STAT. ANN. § 742.17 (West 2007).
11. The European Court of Human Rights has also weighed in on this type of case, Evans v. United Kingdom, 2007 Eur. Ct. H.R. 264 (2007) (holding, in a case without a contract on the matter, that a husband could demand the destruction of preembryos he had fertilized, even though they represented his wife's only chance of having a genetic child due to the removal of her ovaries), as has the Israeli Supreme Court, CFH 2401/95 Nahmani v. Nahmani [1996] IsrSC 50(4) 661 (reaching the opposite conclusion in a similar case) (English translation available at http://elyonl.court.gov.il/files_eng/95/010/024/Z01/ 95024010.z01.pdf).
12. See also Ellen Waldman, Cultural Priorities Revealed: The Development and Regulation of Assisted Reproduction in the United States and Israel, 16 HEALTH MATRIX 65, 97-100 (2006) (discussing Nahmani). For further discussion of the laws of various European countries,
13. see Evans, 2007 Eur. Ct. H.R. ¶¶ 39-42.
14. David I. Hoffman et al., Cryopreserved Embryos in the United States and Their Availability for Research, 79 FERTILITY & STERILITY 1063, 1068 (2003).
15. In a companion article, I defend the claim that the U.S. Constitution does not limit the state's discretion in these cases to adopt my preferred solution. I. Glenn Cohen, The Constitution and the Rights Not to Procreate, 60 STAN. L. REV. 1135 (2008). For the purposes of this Article, I assume my claims in that article are correct and that there are no constitutional impediments. Even if one rejects my conclusions in that article, and thinks that the U.S. Constitution compels a result contrary to what I advocate for here, this is no bar to other non-U.S. jurisdictions adopting my preferred solution, or reinterpreting or amending the U.S. Constitution to effectuate that result.
16. See, e.g., W. Michael Reisman, Necessary and Proper: Executive Competence to Interpret Treaties, 15 YALE J. INT'L L. 316, 325 (1990) (discussing non liquet in Roman law). In this Article I remain largely agnostic about which institution(s) ought to set the legal rules I propose. Although the courts have been the main rule articulators in the preembryo disposition disputes, there has also been some action by legislatures.
17. See supra note 3. While it is plausible that legislatures are better suited to make the kinds of complex trade-offs I discuss, which are contingent on changing technology spurring changing social perceptions, legislatures have been very reluctant to regulate reproductive technology in this country, in part due to its relationship with abortion and religion.
18. See, e.g., DEBORA L. SPAR, THE BABY BUSINESS 30, 228 (2006).
19. See, e.g., J.B., 783 A.2d at 717;
20. Davis, 842 S.W.2d at 601; Joseph Russell Falasco, Frozen Embryos and Gamete Providers ' Rights: A Suggested Model for Embryo Disposition, 45 JURIMETRICS 273, 284 (2005);
21. Sara K. Alexander, Note, Who Is Georgia's Mother? Gestational Surrogacy: A Formulation for Georgia's Legislature, 38 GA. L. REV. 395, 420-21 (2003);
22. Kimberly Berg, Note, Special Respect: For Embryos and Progenitors, 74 GEO. WASH. L. REV. 506, 508 (2006).
23. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, 30-31 (1913).
24. In a companion article, I focus on whether these are rights protected by the federal Constitution, see Cohen, supra note 5, but I bracket off that question for present purposes.
25. See id. at 1139-46.
26. E.g., JOHN A. ROBERTSON, CHILDREN OF CHOICE 108-09 (1994) (distinguishing "reproduction tout court" from more limited forms of parenthood).
27. Some of these rights can be further subdivided, although for the purposes of the analysis in this Article doing so is unnecessary. For example, legal parentage implies both an obligation to provide financial support and a custodial obligation, but we could instead distinguish a right not to be a financial parent and a right not to be a custodial parent. A jurisdiction could recognize one, or make one waiveable, but not the other.
28. Again, this move is, broadly speaking, Hohfeldian. See generally Hohfeld, supra note 8 (setting forth a scheme of jural opposites and correlatives).
29. See also JOSEPH WILLIAM SINGER, ENTITLEMENT: THE PARADOXES OF PROPERTY 131-34 (2000) (discussing Hohfeldian analysis). 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 not to be a genetic parent then person Y has a duty not to make him a genetic parent, whereas if he has no right not to be a genetic parent then person Y has a privilege of making him a genetic parent.
30. These rights to affirmative assistance might constitute a third set of rights. See Cohen, supra note 5, at 1140-41. But, I put these possible rights aside for the purposes of this Article, Even among the negative rights, this list of rights is not exhaustive. Two additional possible rights are worth identifying if only to bracket them off because they do not concern procreation. The first is a right to control one's tissue qua tissue, which might involve nonreproductive (for example, scientific) use of one's tissue. The second is a right to control genetic information qua information-for example, the use by insurance companies or employers of information from genetic tests.
31. See id. at 1143 n.22.
32. See id. at 1144.
33. I use the term "waiver" here although "alienated" is also frequently used in the literature. In this Article, I am purposefully bracketing off another aspect of the waiver question, relating to whether one should be able to buy sperm, eggs, and fertilized preembryos. Id. at 1145-46.
34. See Margaret Jane Radin, Market-Inalienability, 100 HARV, L. REV. 1849, 1852-54 (1987). I will focus on the anticontractualization arguments, not the anticommercialization arguments, which center on access, voluntariness, and corruption (or commodification) problems.
35. 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).
36. 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.
37. Edward L. Rubin, Toward a General Theory of Waiver, 28 UCLA L. REV. 478, 483 (1981).
38. See Child Support Enforcement Agency v. Doe, 125 P.3d 461, 469 (Haw. 2005).
39. The trial court in Kass v, Kass made such a suggestion, Kass v, Kass, No. 19658/93, 1995 WL 110368, at *2-4 (N.Y. Sup. Ct, Jan. 18, 1995),
40. rev'd, 663 N.Y.S.2d 581 (N.Y. App. Div. 1997),
41. aff d, 696 N.E.2d 174 (N.Y. 1998),
42. and the Iowa Supreme Court assumes this to be the case for the purposes of argument, In re Marriage of Witten, 672 N.W.2d 768, 780 (Iowa 2003).
43. But see Davis v. Davis, 842 S.W.2d 588, 598 (Tenn. 1992) (rejecting this argument).
44. COLO. REV. STAT. § 19-4-106(7)(b) (2007);
45. TEX. FAM. CODE ANN. § 160.706 (Vernon 2007);
46. WASH. REV. CODE ANN. § 26.26.725 (West 2007).
47. See also Ellen Waldman, The Parent Trap: Uncovering the Myth of "Coerced Parenthood" in Frozen Embryo Disputes, 53 AM. U. L. REV. 1021, 1060 (2004) (supporting the position these states have taken).
48. Few such cases have been reported, but John Robertson notes one such case in the Australian province of Victoria, where the government ultimately decided to allow withdrawal of consent only up until the point that fertilization took place because of concerns about detrimental reliance. John A. Robertson, Precommitment Strategies for Disposition of Frozen Embryos, 50 EMORY L.J. 989, 1021 n.148 (2001).
49. About half of the states have put in place the 1973 version of the Uniform Parentage Act, which absolves 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);
50. 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).
51. Colorado and Wyoming have modified the statute so that it absolves the sperm donor of legal parenthood when the recipient is unmarried as well, Ertman, supra, 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.
52. UNIF. PARENTAGE ACT § 702, 9B U.L.A. 355 (2000);
53. TEX. FAM. CODE ANN. §§ 160.001-763 (Vernon 2007);
54. WASH. REV. CODE ANN. §§ 26.26.010-26.26.913 (West 2007);
55. Ertman, supra, at 20 n.78. There are only five states with equivalent laws for egg donors, 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.
56. Helen M. Alvaré, The Case for Regulating Collaborative Reproduction: A Children's Rights Perspective, 40 HARV. J. ON LEGIS. 1, 27 & n.185 (2003) (collecting statutes).
57. Although I use the term sperm and egg "donor" following conventional usage, it is worth noting that it is something of a misnomer because in many of these transactions payment is involved. E.g., Ertman, supra, at 17.
58. See supra note 1 and accompanying text.
59. Sperm Made from Human Bone Marrow, BBC NEWS, Apr. 13, 2007, http://news.bbc.co.uk/2/hi/health/6547675.stm.
60. See, e.g., Gina Kolata, Scientists Bypass Need for Embryo to Get Stem Cells, N. Y. TIMES, Nov. 21, 2007, at A1.
61. 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);
62. 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)
63. and Eileen L. McDonagh, My Body, My Consent: Securing the Constitutional Right to Abortion Funding, 62 ALB. L. REV. 1057 (1999)) (endorsing the 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").
64. See, e.g. Roe v. Wade, 410 U.S. 113, 154 (1973) (connecting the abortion right to the "right to do with one's body as one pleases" but rejecting the claim that the right is "unlimited").
65. The Supreme Court has conjoined the two rights and framed it as a decisional right. See Id. at 153 (finding that the constitutional right recognized in the case was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy" (emphasis added)). It may be that the invasion of bodily integrity is less great when one is forced to have an abortion rather than to gestate an unwanted fetus for nine months, but we may believe that either invasion of bodily integrity is sufficient to justify recognition of the right.
66. See, e.g., Union Pac. Ry. 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.");
67. JOHN STUART MILL, ON LIBERTY 81 (David Bromwich & George Kateb eds., Yale Univ. Press 2003) (1859) (recognizing that "over himself, over his own body and mind, the individual is sovereign").
68. Justice Souter's concurrence in Washington v. Glucksberg provides a good summary of the numerous substantive due process rights the Court has based on bodily integrity. Washington v, Glucksberg, 521 U.S. 702, 777-78 (1997) (Souter, J., concurring).
69. See Winston v. Lee, 470 U.S. 753 (1985).
70. See Rochin v. California, 342 U.S. 165 (1952).
71. Cohen, supra note 5, at 1156-57.
72. A different leitmotif that occasionally surfaces in Supreme Court opinions and academic commentary in defense of the abortion right is a kind of antisubordination Equal Protection argument. See, e.g., Gonzales v. Carhart, 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.")
73. (citing Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 1002-28 (1984);
74. Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261 (1992)). In other words, failing to protect the abortion right would exploit a "special vulnerability of women in such a way as to reinforce their subservience to men, and thus their lack of fully autonomous and equal roles in social and political life."
75. Laurence H. Tribe, Commentary, The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence, 99 HARV. L. REV. 330, 338 (1985). That special vulnerability, however, turns on the fact that only women bear the burdens of gestational parenthood, and is inapplicable in cases where unwanted gestational parenthood will not be imposed.
76. See Brian Bix, Domestic Agreements, 35 HOFSTRA L. REV. 1753, 1767-70 (2007);
77. supra note 23.
78. See, e.g., Beard v. Skipper, 451 N.W.2d 614, 615 (Mich. Ct. App. 1990) (mother misrepresented use of birth control); Hughes v. Hurt, 455 A.2d 623 (Pa. 1983) (mother ceased taking birth control pills without telling father and refused to have an abortion). Other cases have also precluded tort suits by fathers due to such misrepresentations.
79. See Stephen K. v. Roni L., 164 Cal. Rptr. 618, 619 (Ct. App. 1980);
80. Linda D. v. Fritz C., 687 P.2d 223, 226-27 (Wash. Ct. App. 1984) (misrepresentation as to use of contraceptives).
81. See also C.A.M. v. R.A.W, 568 A.2d 556 (N.J. Super. Ct. App. Div. 1990) (tort claim by mother against father for false representation as to having a vasectomy). For a more detailed discussion of the case law in this area,
82. 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).
83. See, e.g., S.F. v. State ex rel. T.M., 695 So. 2d 1186 (Ala. Civ. App. 1996) (father claimed he was intoxicated to the point of unconsciousness and was sexually assaulted by the mother);
84. Evelyn v. Shire, No. 242681, 2004 WL 314915 (Mich. Ct. App. Feb. 19, 2004) (fourteen-year-old father claimed incapacity to consent);
85. Mercer County Dep't of Soc. Servs. v. Alf M., 589 N.Y.S.2d 288 (Fam. Ct. 1992) (similar in regards to sixteen-year-old father).
86. See also Dana Johnson, Comment, Child Support Obligations That Result from Male Sexual Victimization: An Examination of the Requirement of Support, 25 N. III. U. L. REV. 515, 519-29 (2005) (collecting cases on statutory rape of men and imposition of child support).
87. E.g., S.F., 695 So. 2d at 1189 ("The child is an innocent party, and it is the child's interests and welfare that we look to ...."); Faske v. Bonanno, 357 N.W.2d 860, 861 (Mich. Ct. App. 1984) ("Since a child may not suffer for a parent's release of the child's claim, neither should the child suffer from one of the parents' 'fault' regarding the conception.") (per curiam);
88. Mercer County, 589 N.Y.S.2d at 290 ("This Court is not concerned with the child's mother's actions but rather protecting the best interests of and insuring that adequate provision will be made for, the child's needs.").
89. See also Ellen London, Comment, A Critique of the Strict Liability Standard for Determining Child Support in Cases of Male Victims of Sexual Assault and Statutory Rape, 152 U. PA. L. REV. 1957, 1986-92 (2004). Whether these decisions are themselves justified is a separate question that I will not fully engage here. These decisions are at least prima facie in tension with the policy of several states to statutorily absolve sperm donors of legal fatherhood even in cases where the recipient is unmarried.
90. See supra note 23.
91. In each of the two situations, children will be bom who will (at least initially) have only one parent, but, counterintuitively, it is only in the case where the genetic father's semen is acquired through deception that legal fatherhood is imposed on him against his will. Although I intend this to be a very terse and tentative analysis, it seems to me that these two rules could be reconciled in one of two ways-one internalist, one Crit-neither of which is entirely satisfying. The first approach suggests that whether to impose legal parenthood on the father in each of the two situations ought to depend on both "the soundness of the regime (whether children are really better off not being born than being born in to single parent families) and the effect the legal rules have on parental behavior," June Carbone & Naomi Cahn, Which Ties Bind? Redefining the Parent-Child Relationship In an Age of Genetic Certainty, 11 WM. & MARY BILL RTS. J. 1011, 1016 (2003). While both situations are presumably similar as to the first factor (single parenthood obtains in both), they differ substantially on the second: many men may abstain from being sperm donors if legal parenthood is imposed; far fewer are likely to abstain from sex if the regime assigns legal parenthood to them in the very unlikely case where they are deceived. However, in the run of the mill deception case a man need not avoid sex entirely - only unprotected sex - which seems like a self-protective measure he might plausibly adopt. On the other side, given the patchwork of state laws as to sperm-donor parental status when the recipient is a single mother, the regime can easily be circumvented by traveling to a state that absolves donors of liability for insemination.
92. See id. The second, more Crit approach, is to suggest the distinction is motivated by perceived differences in the socioeconomic status of the families likely to result. Single women using assisted-reproductive technology are perceived to be of high socioeconomic status such that the child is likely to be provided for even with only one legal parent, whereas those in the deception cases are perceived to be of lower socioeconomic status. Such an explanation, though possible, is highly speculative.
93. See, e.g., RUSSELL KOROBKIN WITH STEPHEN R. MUNZER, STEM CELL CENTURY 30 (2007). The primitive streak, which marks the absolute beginning of neural development, occurs only at fourteen days, and preembryos are cryopreserved before that point.
94. Id.
95. See, e.g., Philip G. Peters, Jr., Essay, The Ambiguous Meaning of Human Conception, 40 U.C. DAVIS L. REV. 199, 220 (2006).
96. Id. at 221.
97. In re Marriage of Witten, 672 N. W.2d 768, 774 (Iowa 2003).
98. Id. at 775.
99. Davis v. Davis, No. E-14496, 1989 Tenn. App. LEXIS 641, at *2 (Ct. App. Sept. 21, 1989). Likewise, the trial court in Litowitz v. Litowitz apparently thought it should apply a best interest test to determine which of the two parents wanting to use the frozen preembryos could provide the resulting child a better home. Litowitz v. Litowitz, 48 P.3d 261, 264 (Wash. 2002). This reasoning was not endorsed on appeal.
100. Id. at 271.
101. See Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992).
102. LA. REV. STAT. ANN. §§ 9:129, : 131 (2006). At least one commentator has urged the courts to do the same.
103. See Fotini Antonia Skouvakis, Comment, Defining the Undefined: Using a Best Interests Approach to Decide the Fate of Cryopreserved Preembryos in Pennsylvania, 109 PENN ST. L. REV. 885, 904-05 (2005).
104. Cf. DEREK PARFIT, REASONS AND PERSONS 356-61 (1984) (arguing that so long as an individual will have a life worth living, bringing that person into existence does not harm it);
105. Dan W. Brock, The Non-Identity Problem and Genetic Harms - The Case of Wrongful Handicaps, 9 BIOETHICS 269 (1995) (same).
106. See also Angela K. Upchurch, The Deep Freeze: A Critical Examination of the Resolution of Frozen Embryo Disputes Through the Adversarial Process, 33 FLA. ST. U. L. REV. 395, 402-03 (2005) (applying the best-interests-of-the-embryo analysis to the Louisiana statute).
107. But cf. Seana Valentine Shiffrin, Wrongful Life, Procreative Responsibility, and the Significance of Harm, 5 LEGAL THEORY 117, 134, 136 (1999) (arguing for an "equivocal view" of procreation even in the normal case because it involves "imposing [without consent] serious harms and risks on someone who is not in danger of suffering greater harm if one does not act" in the name of bestowing the "pure benefit" of existence). I hedge on "usually" because there may be cases where coming into existence is not in the best interests of a thing that has interests. The clearest example is where an individual would have a deficit so bad as to make the life not worth living from the subjective point of view of that person; that is, if asked ex post the individual would rather he had not been bom.
108. E.g., ALLEN BUCHANAN ET AL., FROM CHANCE TO CHOICE: GENETICS AND JUSTICE 224 (2000);
109. Carl H. Coleman, Conceiving Harm: Disability Discrimination in Assisted Reproductive Technologies, 50 UCLA L. REV. 17, 45 (2002).
110. See also Wendy F. Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 HARV. C.R.-CL. L. REV. 141, 161 & nn.117-19 (2005) (discussing "wrongful life" suits permitted in three states). But this exception seems inapplicable to our cases: whatever harms a resulting child will suffer from being bom against the contemporaneous objection of one of its parents, there is no plausible argument that those harms could rise to the level of constituting a life not worth living. In related contexts, some have suggested that the standard should be stronger than merely "a life worth living." Frances Kamm, for example, suggests that one might reason that no one is harmed by not being created because there is no one yet existing to be harmed, and that therefore "we can set a high standard for permissibly creating people [by] demanding that creators create lives that are more than minimally satisfactory."
111. F.M. Kamm, Cloning and Harm to Offspring, 4 N.Y.U. J, LEGIS. & PUB. POL'Y 65, 72 (2000).
112. See also BUCHANAN ET AL., supra, at 248 (considering a moral duty to avoid having a child who would "suffer a serious harm or disability or a serious loss of happiness or good that they could have prevented without imposing substantial burdens or costs or loss of benefits on themselves or others"). Whether this heightened standard is the right one is an issue beyond the scope of this Article. For present purposes, I will merely suggest that even under this higher standard it seems implausible that the harms a child would suffer from being bom over the contemporaneous objection of one parent would rise to the requisite level.
113. X might also have a moral claim, but may not be entitled to look to me in particular to satisfy that claim. Just as a person X might have a general claim to the health care necessary for full and equal opportunity, see, e.g., NORMAN DANIELS, JUST HEALTH 77-78 (2008) (so suggesting), that does not mean X can come up to me in particular and ask me to pay his hospital bill; rather the obligation is diffuse or is a claim against the state. This might suggest a claim on the part of a preembryo to be implanted in someone, but no particular claim against its genetic mother to be the one to implant it. Such an approach could be operationalized, for example, by a law requiring that all frozen preembryos be available for "embryo adoption."
114. The Davis court thus skipped a step in concluding that recognizing preembryos as persons would entail "an obligation to provide an opportunity for implantation to occur." Davis, 842 S.W.2d at 596.
115. While in the typical abortion case, being forced to continue an unwanted pregnancy will impose gestational, genetic, and (at least initially) legal parenthood on the mother, with gestational surrogates a no-abortion rule will impose only gestational parenthood, and yet most authorities hold that the surrogate has the right to have an abortion. See Cohen, supra note 5, at 1161.
116. See Thomson, supra note 27, at 49.
117. See J. David Velleman, Family History, 34 PHIL. PAPERS 357, 371-72 (2005).
118. John A. Robertson, Procreative Liberty and Harm to Offspring in Assisted Reproduction, 30 AM. J.L. & MED. 7, 36 (2004).
119. See also ROBERTSON, supra note 11, at 122 (noting that children of sperm donors "have fewer problems than adopted children and their families").
120. Elizabeth Bartholet, Guiding Principles for Picking Parents, 27 HARV. WOMEN'S L.J. 323, 337 (2004).
121. Ethics Comm. of the Am. Soc'y for Reprod. Med., Access to Fertility Treatment by Gays, Lesbians, and Unmarried Persons, 86 FERTILITY & STERILITY 1333, 1334 (2006).
122. See also, e.g., Holly J. Harlow, Paternalism Without Paternity: Discrimination Against Single Women Seeking Artificial Insemination by Donor, 6 S. CAL. REV. L. & WOMEN'S STUD. 173, 196-98 (1996) (finding "little support" for the argument that "children raised in a single-parent household will suffer negative emotional or psychological consequences" and noting that early studies showing negative consequences of single-parent households failed to account for numerous other factors such as income level and trauma from separation, divorce, and death);
123. Waldman, supra note 3, at 79-80. I do not want to overstate the level of consensus in the literature on this conclusion; there are several dissenters.
124. See, e.g., Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligation, 52 UCLA L. REV. 815, 861-65 (2005) (claiming that detriments to offspring of having single parents persist even when income is controlled for).
125. See also Carbone & Cahn, supra note 39, at 1022 (noting studies suggesting any advantages seen in two-parent households "have nothing to do with biology," but instead are related to increased "income, supervision, and parental attention").
126. The law does not make IVF or other reproductive technologies available only to married couples. Instead some states facilitate single parenthood by absolving gamete donors from legal parenthood obligations even when the recipient is unmarried. See supra note 23. In fact, some of the states with insurance mandates covering IVF extend the mandate to single women, which is a kind of subsidy for single parenthood.
127. See Waldman, supra note 3, at 89. While some fertility specialists have undertaken, as a matter of professional discretion, to refuse to provide reproductive technology services to single patients, this practice has been the subject of significant criticism and litigation.
128. See, e.g., John A. Robertson, Gay and Lesbian Access to Assisted Reproductive Technology, 55 CASE W. RES. L. REV. 323, 353-54 (2004).
129. Sociobiological accounts might be thought to give additional support for this claim. If behaviors which propagate our own genes are selected for, as sociobiologists claim, then far from being a harm, unconsented-to use of one's own genetic material when one is not required to invest in the rearing ofthat child might be thought of as a boon; one's genetic material line is propagated gratis. See, e.g., RICHARD DAWKINS, THE SELFISH GENE 2, 102-103, 248-49 (2d ed. 1989);
130. EDWARD O. WILSON, SOCIOBIOLOGY 22 (1975);
131. Carbone & Cahn, supra note 39, at 1029. However, this sociobiological observation will have difficulty sustaining the no-harm claim for three related reasons. First, there are well-known difficulties in generalizing from descriptions of what behavior is adaptive among nonhuman animals and our ancestors in the early evolutionary environment to descriptions of adaptive behavior for humans in our current society. To give but one example, for early hunter-gatherer societies it was adaptive to eat whenever food was available because of the scarcity of food and the abundance of exercise; in our current much more sedentary environment, unrestrained eating would be maladaptive and lead to obesity, especially given the much higher amounts of carbohydrates, fats, and refined sugars in our typical diets.
132. See Carbone & Cahn, supra note 39, at 1028. Second, sophisticated sociobiologists recognize that simplified claims about imperatives to propagate one's genetic line are inadequate even at the level of description. For example, a simplistic view of sociobiology might lead one to think that it would be maladaptive for an adult male to invest resources in women who already have children-to stepparent-since his resources are being expended without propagation of his genetic material. Not so, says the sophisticated sociobiologist, because women are themselves selecting for mates who will invest resources in caring for all their offspring, whether they be from prior or current relationships.
133. See Carbone & Cahn, supra note 39, at 1032-33. Because of this tendency, "while men can be expected to invest more in their own children than in others, they may also care more about ensuring the continuation of the relationship [with the woman] than in guaranteeing paternity, particularly if the care they provide increases their odds of fathering additional children."
134. Id. at 1033. Thus, stepparenting can be adaptive, especially for men "ranked" lower in the mating market who are less likely to marry higher ranked mates or to marry at all, because the men can increase their chance of having sexual access to women, and thereby propagating their own genetic line, by showing their willingness to assist with child care of the woman's already existing children.
135. Id. at 1033-35
136. (discussing Kermyt G. Anderson et al., Paternal Care by Genetic Fathers and Stepfathers I: Reports from Albuquerque Men, 20 EVOLUTION & HUM. BEHAV. 405 (1999)). Finally, and most importantly, sociobiology faces a persistent problem if it tries to move from "is" to "ought." Unless one is to fall prey to the naturalistic fallacy, one cannot take the fact that certain behavior is "natural" to be reason to conclude that it is normatively desirable.
137. See Owen D. Jones, Law and Evolutionary Biology: Obstacles and Opportunities, 10 J. CONTEMP. HEALTH L. & POL'Y 265, 272-73 (1994) (recognizing this problem). To put the point differently, it would be a category error to think that that any action another takes that is good for the propagation of my genetic line is good for me.
138. This division parallels one made in the social norms literature, which distinguishes the pathways through which norms are reinforced. At one end of the spectrum there are community-based pathways such as ridicule, gossip, and ostracism for deviant behavior; on the other there are internally based pathways such as the shame and guilt and individual experiences when he or she violates a norm that has been internalized. See, e.g., Herbert Jacob, The Elusive Shadow of the Law, 26 LAW & SOC'Y REV. 565, 567 (1992);
139. Yoshinobu Zasu, Sanctions by Social Norms and the Law: Substitutes or Complements?, 36 J. LEGAL STUD. 379, 379-80 (2007). The family can be thought of as an intemediate point on this continuum, or as a kind of community with particular salience for norm-reinforcement.
140. I focus on unwanted genetic fatherhood (rather than motherhood) in these examples merely because with fathers in all cases there is no possibility of unwanted gestation, so the description is somewhat simpler. Similarly, while I focus on husbands and wives, what I say largely applies to other family configurations as well.
141. See, e.g., Amy Harmon, Are You My Sperm Donor? Few Clinics Will Say, N.Y. TIMES, Jan. 20, 2006 at Al. This interest goes beyond an interest in having access to one's genetic parent's medical history, which might be accomplished in a way consistent with maintaining anonymity-that is, at least in the sperm- or egg-donor context, medical history might be made available in a way that is not donor identifying.
142. See, e.g., Pino D'Orazio, Note, Half of the Family Tree: A Call for Access to a Full Genetic History for Children Born by Artificial Insemination, 2 J. HEALTH & BIOMEDICAL L. 249, 257-58 (2006) (discussing guidelines and practice).
143. Is the harm lessened if the legal regime gave him the choice, at the time of implantation, to decide whether or not to be the legal parent of the child, as do Colorado, Washington, and Texas? See supra text accompanying note 21. He can choose to be the child's legal parent and give up the freedom from financial (and other legal) obligations, or not and give up any entitlement to decisionmaking and further relationship with the child. What has been removed is a third option of avoiding this choice altogether, and it may be that choosing between these options intensifies rather than diminishes the selfattributional feelings of responsibility.
144. To see this, consider a series of hypothetical. First, imagine you are a man with an identical twin. Your twin marries a nice woman and they have a child. The child carries your genetic code to the same extent as the child would if your semen had been used without permission to inseminate the child's mother, yet the two cases seem clearly distinguishable and no one thinks you have been harmed in the former case. One might object that you and your twin have a kind of tenancy in common over your genetic information, and the fact that you have no "rights of exclusion" as to your twin does not mean you have no rights of exclusion as to third parties. But consider a variant of the case, where your twin's sperm was used without his permission to create a child. Our intuition is that in such a case he has been harmed, not that you have, but then the explanation cannot be tenancy in common because the infringement is by a third party, not the tenant in common. What seems significant is that notwithstanding that both twins carry the same genetic material, and are, for the purposes of the children they produce, essentially interchangeable, we only attribute parenthood to the sperm "source." In support of this account, consider this real life example: Tim Twomey suffered from anorchia, a rare disorder where he was born with a penis but without testicles. Lee M. Silver & Susan Remis Silver, Confused Heritage and the Absurdity of Genetic Ownership, 11 HARV. J. L. & TECH. 593, 600-01 & n.16 (1998). He received a transplant testicle from his identical twin, Terry, which allowed Tim to produce a son with his wife.
145. Id. at 601. As the Silvers point out, it is strange to think that it should make a difference had Tim's wife been inseminated with Terry's sperm, rather than by Tim using his brother's transplanted testicle,
146. id. at 601-02, but for the Twomeys it obviously was important enough to justify the transplant. To give a slightly different example, consider what would happen if human cloning technology became available. Would you be harmed if your identical twin decided to clone himself? Your identical twin is already a clone of you, but we do not think his existence harms you even though there exists a person, whose existence you did not will, who contains all (rather than merely half) your genetic material. One potentially relevant difference between cloning and the examples I discuss is that "[b]y confounding and transgressing the natural boundaries between generations, cloning could strain the social ties between them." PRESIDENT'S COUNCIL ON BIOETHICS, HUMAN CLONING AND HUMAN DIGNITY: AN ETHICAL INQUIRY xxix (2002). Finally, consider one more example: Maria, a woman of childbearing age, is involved with a young man, Tony, of whom her parents disapprove. Before the marriage, Maria becomes pregnant and the couple informs their respective parents. We do not ordinarily think that the parents have been harmed by the mere fact that their genetic code is being carried forward without their permission. Yet in some ways the claim of harm from losing control of one's genetic code is stronger than in the previous thought experiment (or in the preembryo-disposition-agreement disputes or sperm- or egg-donor cases), in that all contributors of genetic material are objecting to its current use, not merely half of the contributors. But, of course, we can run this hypothetical back up the family tree and make it into a reductio ad absurdum.
147. Our reaction to this last case seems to depend on an assumption of (at least some consequentialist) moral reasoning that there is an "experience requirement" such that "a state of affairs can make me better off only if, in one way or another," it feeds back into my experience. L. W. SUMNER, WELFARE, HAPPINESS, AND ETHICS 127 (1996). Even among consequentialists, this requirement is hotly debated.
148. See id. at 124-28. If my brother's plane crashes in the Indian Ocean and as far as I know he has drowned, is my life made better off in a world where he actually washes up on a desert island populated by benevolent and beautiful people without any communication with the outside world, rather than in a world where he actually drowns? People have conflicting intuitions about this kind of case, but in terms of legal-system design we do not generally care about unexperienced harms, as is most evident in areas like tort and the requirement of standing. That said, while my account of attributional parenthood treats experience as a necessary requirement, it is not clear to me that someone who did not adopt this requirement would reach a different answer to any of the main cases I discuss. A different issue, that I do not develop in any depth here, relates to posthumous harms and whether someone must be currently living to suffer the harms we are discussing. This represents a special version of the experience-requirement question, although one where there seems to be more uniformity in intuitions. Consider Baltimore's posthumously naming an airport after Thurgood Marshall. While it may be better for a number of people (his descendants, his admirers, etc.) for this to occur, it seems odd to think it was better for him after he died. Nor do we think he is harmed if he is posthumously slandered. "Dying has precious few consolations, but surely one of them is that beyond that threshold we are safe from any further misfortunes."
149. Id. at 127. Thus, for those who believe that what happens after death cannot affect our welfare, the posthumous harvesting of sperm (or perhaps harvesting from those in persistent vegetative states) cannot make that individual worse off. That said, it may be that the fear, while alive, of becoming a parent when dead may itself be a sufficient justification for a rule preventing posthumous use without prior consent.
150. See John A. Robertson, Posthumous Reproduction, 69 IND. L.J. 1027, 1031 & n.18 (1994). It may also be that maintaining taboos about the treatment of dead bodies is desirable not because of their effect on the dead, who are beyond harm, but because they support norms preventing the violations of bodily integrity of the living.
151. See Michael H. Shapiro, Illicit Reasons and Means for Reproduction: On Excessive Choice and Categorical and Technological Imperatives, 47 HASTINGS L.J. 1081, 1132 (1996). This is a kind of "modifiedexperience" argument,
152. see generally Scott Altman, (Com)modifying Experience, 65 S. CAL. L. REV. 293 (1991), the plausibility of which I leave for another day. At most, however, this argument would generate a rule against sperm harvesting and other bodily integrity violations of the dead, not hypotheticals like the bathtub case involving dead individuals. Posthumous genetic parenthood might also make others worse off. There are difficult trust and estates issues related to the interests of the already existing children in such cases,
153. see, e.g., Kristine S. Knaplund, Postmortem Conception and a Father's Last Will, 46 ARIZ. L. REV. 91 (2004), although the inheritance issues only occur when someone is made the legal parent of the resulting child. For one of the very few cases that have arisen on the subject,
154. see In re Martin B., 841 N.Y.S.2d 207 (Surr. Ct. 2007) (holding that children posthumously conceived from sperm deposited at a laboratory for cryopreservation were "issue" and "descendants" of trust set up by grandparent). A larger number of courts have considered whether posthumously conceived children are entitled to receive social security benefits, a determination which turns inter alia on state law on intestacy and determination of legitimacy.
155. Compare Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004) (permitting benefits for child conceived from sperm banked by husband for possible future use), and Woodward v. Comm'r of Soc. Sec, 760 N.E.2d 257 (Mass. 2002) (similar), with Stephen v. Comm'r of Soc. Sec, 386 F. Supp. 2d 1257 (M.D. FIa. 2005) (denying benefits for child conceived from sperm extracted from man's deceased body based on state intestacy law),
156. and Khabbaz v. Comm'r of Soc. Sec, 930 A.2d 1180 (N.H. 2007) (similar as to child conceived with sperm banked by husband for possible future use). For a discussion of how "persistent concerns that the dead have 'nothing to lose' by destroying property make courts reluctant to permit testamentary destruction" of property more generally, along with a qualified critique,
157. see Lior Jacob Strahilevitz, The Right to Destroy, 114 YALE L.J. 781, 838-52 (2005).
158. See, e.g., Stuart Jeffries, Who's the Daddy?, GUARDIAN (London), Nov. 18, 2006, at 31.
159. See also, e.g., Waldman, supra note 21, at 1049-52 (detailing sperm donors' negative reactions to the loss of anonymity);
160. Ken Daniels, The Semen Providers, in DONOR INSEMINATION: INTERNATIONAL SOCIAL SCIENCE PERSPECTIVES 76, 91-95 (Ken Daniels & Erica Haimes eds., 1998) (collecting studies in support of the traditional view that many current sperm providers would not provide sperm if anonymity was removed, but also reviewing research challenging the extent of that effect and the possibility of countering it through changing the populations from which sperm donors are recruited). One might object that this data is also consistent with a claim that individuals are afraid of a regime change as to the imposition of legal parenthood; that is, that the unwillingness to donate sperm in nonanonymous regimes has nothing to do with negative effects from genetic parenthood standing alone but is instead a fear that the protection against legal parenthood will be changed retroactively, and nonanonymous donation will allow individuals to be tracked down for child support, for example. It is true that this is a possible reading of the data, and it would be very hard to collect data in a way that rules out this confound (even if a study of preferences asked individuals to assume no possibility of retroactive legal-rule change, some might nonetheless answer the question with that in mind). At the same time, this explanation does not seem to be a good fit for the phenomenological experience of why one thinks one is harmed by genetic parenthood without consent. For example, if one were to imagine that the legal rule was such that anonymity could only be removed when a child turns twenty-one-past the age of child support obligations-that does not seem to lessen the feeling of harm from use of one's genetic materials to produce a child without consent.
161. We might also look to fiction, such as Plato's vision in The Republic of a society where children were separated from their parents at birth, reared collectively, and thought of as the children of the community rather than their genetic parents. Plato, The Republic, in 5 COMPLETE WORKS, Bk. V, 457, 460 (John M. Cooper ed., G.M.A. Grube & C.D.C. Reeve trans., 1997). A much more moderate version of this practice was common in early Israeli kibbutzim where children were reared collectively so as to allow them to bond with the entire adult population of the kibbutz, not just their genetic parents.
162. See, e.g., Maura I, Strassberg, The Challenge of Post-Modern Polygamy: Considering Polyamory, 31 CAP. U. L. REV. 439, 519 (2003). American history might also provide further examples of the contingent nature of the relationship between genetics and attributions of parenthood, especially as to fathers. For example, under the common law of coverture, there was no transmission of legal parenthood from men (and in some states, women) to their genetic children if those children were bom out of wedlock, and thus no obligations of custody or support for illegitimate children.
163. See, e.g., Kristin Collins, Note, When Fathers ' Rights Are Mothers ' Duties: The Failure of Equal Protection in Miller v. Albright, 109 YALE L.J. 1669, 1682-85 (2000). That said, it is not clear whether coverture represented a severance of genetic parenthood from attributional parenthood, or merely a severance from the duties of legal parenthood.
164. C. Quince Hopkins, The Supreme Court's Family Law Doctrine Revisited: Insights from Social Science on Family Structures and Kinship Change in the United States, 13 CORNELL J.L. & PUB. POL'Y 431, 485 (2004)
165. (citing GARY WITHERSPOON, NAVAJO KINSHIP AND MARRIAGE 21, 28, 30-31, 34-35, 75 (1975)).
166. See THE ETHNOGRAPHY OF MALINOWSKI 96-111 (Michael W. Young ed., 1979) [hereinafter ETHNOGRAPHY],
167. See also Susan Montague, Trobriand Kinship and the Virgin Birth Controversy, 6 MAN 353, 358-59, 365-66 (1971) (refining Malinowski's findings).
168. ETHNOGRAPHY, supra note 68, at 109.
169. See Indira A.R. Lakshmanan, Where Women Rule: A Remote Chinese Community Struggles to Retain Its Matriarchal Way of Life, BOSTON GLOBE, Apr. 23, 2000, at 14 (Magazine);
170. Matthew Forney, Minority Report, TIME (INT'L), NOV. 11, 2002, at 68, available at http://www.time.com/time/ asia/features/china_cul_rev/minorities.html.
171. Lakshmanan, supra note 70.
172. Id.
173. See Hopkins, supra note 67, at 493;
174. Dorothy E. Roberts, The Genetic Tie, 62 U. CHI. L. REV. 209, 268-69 (1995).
175. See Erica Haimes, Social and Ethical Issues in the Use of Familial Searching in Forensic Investigations: Insights from Family and Kinship Studies, 34 J.L. MED. & ETHICS 263, 268 (2006).
176. It would be a mistake to move from the claim that the attributional harm from unwanted genetic parenthood is to some extent a social construct (which the anthropological evidence suggests) to either the claim that it is not a real harm or the claim that the law's decision as to the allocation of entitlements can eradicate the construct. The first mistake would be premised on the notion that socially constructed attitudes cannot be harmful. I am not sure anyone actually makes this mistake, but, in any event, it is patently false. The relationship of sex and gender is a good example. While many gender stereotypes are social constructs (for example, they are far from universal across cultures), they are obviously harmful to those who experience them in the workplace or elsewhere. The latter mistake is more subtle, and comes from collapsing two continua into one. One is a continuum of origin: a particular aspect of human thought could be completely biologically hardwired, completely socially constructed, or (more likely) fall somewhere on the continuum between those two poles. The second is a continuum of malleability: a particular aspect of human thought could be very easy to change, completely resistant to change, or (more likely) fall somewhere on the continuum between those two poles. Though there is probably some correlation between the location of an aspect of human thought on each continuum, it is fairly weak. Gender is, again, a good example. While many gender stereotypes are social constructs, they have also proven very difficult to change. As the gender example might suggest, it would be more precise to break down malleability by mechanism of change. Crudely, but sufficiently for this discussion, we might distinguish the law's ability to change aspects of human behavior from all other mechanisms (including, for example, changes in popular culture). So, again, to use gender as an example, the reduction in negative sex stereotypes about women's lack of competency to manage workforces might be driven in part by law (the passage and enforcement of Title VII, for example), but also by nonlegal mechanisms like the depiction of competent women managers on television and elsewhere in popular culture. Law's share is sometimes referred to as the "expressive function of law," and it seems very plausible that law's power to shape norms varies a great deal with the context. See, e.g., Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2025-29 (1996). It is also very plausible that changes to different strands of doctrine possess different norm-shaping powers, such that one legal-rule change may have a much more powerful effect on norm shaping than another. Moreover, one might think that to truly effect a significant norm shift, changing one rule is insufficient, and that changing multiple doctrines in a single area of law may have an effect greater than the sum of its parts. These remarks enable me to set out more clearly my view on the attributional-parenthood norm. While I think it is close to the socially constructed pole of the origin continuum, I also think it falls in the middle of the malleability continuity. More importantly, I am skeptical about how much a role the expressive function of law, as opposed to nonlegal mechanisms, has to play if one wanted to change the norm. And, to be very specific, I am quite doubtful that merely changing the default allocation of entitlements in the no-consent case would significantly alter the attributional-parenthood norm. Rather, a much more large-scale reimagining of not only the law of reproductive technology, but also family law more generally, that displaced genetic connectedness would be necessary. Such a reimagining would of course have costs and benefits, but I do not presume to offer anything resembling a tally here. All that I have said here is meant merely as a self-conscious statement of my own priors on the issue, not as a full-blooded proof, or even a quarter-blooded one.
177. What about attributions to others besides parents? What of attributional grarurparenthood, for example? To return to a point I made earlier, see supra note 63, we do not ordinarily think that an individual is harmed when his or her genetic child in turn chooses to have a genetic child of his or her own without the individual's (that is, the grandparent's) consent. This might be explained by a conception of waiver, that by having a genetic child in the first place the individual has waived the right to restrict that child's further reproductive activities, a sort of rough analogy to the first sale doctrine in copyright. A different explanation might be that we think the attributions much weaker in this context, in part because legal grandparenthood carries with it a much weaker set of duties and rights, such that the conflation of genetic grandparenthood with grandparenthood writ large is less likely or significant.
178. Waldman, supra note 21, at 1040-49, 1059, 1062.
179. See id. at 1048. Waldman acknowledges some limits of the data, although they are somewhat different from the limits I see. One important limit she acknowledges is that this data pertains only to fatherhood, not motherhood, although she asserts that "parenthood is largely a socially driven phenomenon for women as well as for men."
180. Id. at 1041 n.98.
181. Id. at 1040-46.
182. Id. at 1048-49.
183. Id. at 1049-50.
184. Id. at 1051.
185. Id. at 1050.
186. Id. at 1049-51.
187. See supra note 65 and accompanying text.
188. See, e.g., A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000);
189. J.B. v. M.B., 783 A.2d 707 (N.J. 2001);
190. ROBERTSON, supra note 11;
191. Coleman, supra note 2.
192. Cf. SINGER, supra note 13, at 10 ("In analyzing property rights we often adopt unconscious presumptions about who owns the particular entitlement... [that] place the burden on the other party to justify redistributing the entitlement.").
193. United States v. Cox, 428 F.2d 683, 688 (7th Cir. 1970). See also Commonwealth v. Tarver, 345 N.E.2d 671, 674, 676 (Mass. 1975) (finding no Fourth Amendment violation where hair was snipped from a defendant's head, chest, and pubic area while under arrest because "the taking of the hair samples was not an unreasonable bodily intrusion, if it was a bodily intrusion at all").
194. Venner v. State, 354 A.2d 483 (Md. Ct. Spec. App. 1976), aff'd, 367 A.2d 949 (Md. 1977). The court hedged and suggested it might have reached a different result if the defendant had done or said something "to indicate an intent to assert his right of ownership, possession, or control over such material," thus combating an inference of abandonment.
195. Id. at 499.
196. Elizabeth E. Joh, Essay, Reclaiming "Abandoned" DNA: The Fourth Amendment and Genetic Privacy, 100 NW. U. L. REV. 857, 865 (2006).
197. Id. (citing State v. Wickline, 440 N.W.2d 249, 253 (Neb. 1989);
198. State v. Buckman, 613 N.W.2d 463, 474 (Neb. 2000)).
199. United States v. Thomas, 864 F.2d 843, 845 (D.C. Cir. 1989);
200. Joh, supra note 90, at 867-68 &n.59.
201. Moore v. Regents of the Univ. of CaI., 793 P.2d 479, 487-96 (1990).
202. See id. at 488-89. A later decision by the intermediate California appellate court, Hecht v. Superior Court, involving a decedent's devising to his girlfriend of sperm held in a sperm bank, distinguished Moore on the finding that there was evidence of "decedent's intent and expectation that he would in fact retain control over the sperm following its deposit," such that the sperm was not abandoned. Hecht v. Superior Court, 20 Cal. Rptr. 2d 275, 280-81 & n.4 (Ct. App. 1993).
203. See Wash. Univ. v. Catalona, 437 F. Supp. 2d 985, 999-1000 (E.D. Mo. 2006), aff'd, 490 F.3d 667 (8th Cir. 2007);
204. Greenberg v. Miami Children's Hosp. Research Inst. Inc., 264 F. Supp. 2d 1064, 1074-76 (S.D. Fla. 2003). These decisions emphasize the "donative intent" of the tissue donor. Catalona, 437 F. Supp. at 999.
205. Phillips v. Irons, No. 1-03-2992, 2005 WL 4694579, at *1 (111. App. Ct. Feb. 22, 2005).
206. Id. at *6.
207. See, e.g., Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL. L. REV. 127, 206 (1993).
208. By contrast, the individual seeking to use the material has invested effort in securing the material and using it for reproduction.
209. See JOHN LOCKE, SECOND TREATISE OF GOVERNMENT § 27, at 19 (CB. Macpherson ed., Hackett Publ'g Co. 1980) (1690). There are separate more general problems with the Lockean argument I will not discuss here.
210. See. e.g., ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 174-75 (1974) (asking "why isn't mixing what I own with what I don't own a way of losing what I own rather than a way of gaining what I don't?");
211. William W. Fisher & Talha Syed, Global Justice in Healthcare: Developing Drugs for the Developing World, 40 U.C. DAVIS L. REV. 581, 669-70 (2007).
212. See LOCKE, supra note 100, at §§ 27-31, at 19-21. Interestingly, this is exactly the approach the United States Congress Office of Technology Assessment took in the report it issued on ownership of human tissue, suggesting that human tissue that has been separated from the body may be considered "res nullius," a thing which has no owner. OFFICE OF TECHNOLOGY ASSESSMENT, NEW DEVELOPMENTS IN BIOTECHNOLOGY: OWNERSHIP OF HUMAN TISSUES AND CELLS 82 (1987) ("If... tissues were removed without the removal itself being wrongful, their status would be that of wild animals in a state of nature and the possessor could attempt to exercise dominion over them. Not having exercised dominion or control over the tissues, the patient's rights therein would be like those of a landowner who had made no attempt to capture wild animals passing over his land.").
213. IMMANUEL KANT, GROUNDING FOR THE METAPHYSICS OF MORALS 429 (James W. Ellington trans., Hackett Publ'g Co. 3d ed. 1981) (1785).
214. See, e.g., ONORA O'NEILL, CONSTRUCTIONS OF REASON: EXPLORATIONS OF KANT'S PRACTICAL PHILOSOPHY 105-10 (1989).
215. That conclusion might be particularly easy on facts like Phillips because the case involves an element of deception, which is itself prohibited on Kantian grounds. See KANT, supra note 102, at 422.
216. CÉCILE FABRE, WHOSE BODY IS IT ANYWAY? 112 (2006) (discussing a similar Kantian objection to taking body parts from nonconsenting individuals).
217. To give one example, many legal rules that must be be made overinclusive in order to function could be thought to violate the Kantian interdiction. Cf. Shapiro, supra note 64, at 1148-49 (questioning whether the Kantian interdiction applies to legal institutions rather than just persons).
218. MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE 76-79 (2d ed. 1998).
219. Id. at 78-79.
220. Cf. FABRE, supra note 105, at 113 (framing the Kantian prohibition as interference with an individual's ability to pursue their own projects and life plan). This may suggest that the Kantian theory is a better account of why we give individuals the entitlement not to be a gestational parent. In refuting a Kantian objection to organ sales, Fabre observes (in parallel to Sandel's point) that "even if it is impossible to buy and sell something without treating that thing as an object" it is still the case that "one can sell a part of oneself without treating oneself as an object, for the simple reason that renouncing all rights over a part of oneself, a fortiori a detachable part such as an organ, does not mean that one is renouncing all rights over oneself."
221. Id. at 140.
222. Some have connected this theory to Hegel. See Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L.J. 287, 331-50 (1988);
223. Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957, 971-78 (1982).
224. See Radin, supra note 110, at 959-61;
225. Sonia M. Suter, Disentangling Privacy from Property: Toward a Deeper Understanding of Genetic Privacy, 72 GEO. WASH. L. REV. 737, 776 (2004) ("[G]enetic information is also integral to the self because it is so central to major life plans.").
226. See Hughes, supra note 110, at 338;
227. Radin, supra note 110, at 966;
228. Suter, supra note 111, at 801. Once again, this may be a better account of the right not to be a gestational parent.
229. Might a more contractarian approach also be a promising ground for justifying the allocation of the entitlement? For examples of hypothetical-choice contractarianism, see JOHN RAWLS, A THEORY OF JUSTICE 118-23 (rev. ed. 1999);
230. T.M. SCANLON, WHAT WE OWE TO EACH OTHER 213-18 (1998). To be sure, Rawls limited his use of the veil of ignorance to generate the principles of justice, and then used those principles only for setting the basic structure and the constitutional essentials. Using the contractarian hypothetical-choice approach to allocate the entitlement here would therefore go beyond the usage Rawls envisioned. In a hypothetical-choice- contractarian framework, the question is what rule one would endorse ex ante behind a veil of ignorance type of device, unaware of whether one possesses the desired genetic stock or will seek it. If, behind the veil, we would choose a rule preventing the use of our genetic material without consent, then a contractarian would endorse the right not to be a genetic parent as the rule. Among the problems for this approach is that the outcome seems dependent on specifications as to the thickness of the veil and on how choices will be made, specifications which themselves require independent justification. On some accounts of those parameters, the contractarian approach will blend into the welfarist (indeed even utilitarian) approach.
231. See John C. Harsanyi, Cardinal Welfare. Individualistic Ethics, and Interpersonal Comparisons of Utility, 63 J. POL. ECON. 309 (1955);
232. Mark S. Stein, The Distribution of Life-Saving Medical Resources: Equality, Life Expectancy, and Choice Behind the Veil, SOC. PHIL. & POL'Y, Jul. 2002, at 212, 229-30 (2002). I leave a discussion of whether these problems might be overcome for another occasion.
233. See generally SUMNER, supra note 64 (discussing these different theories). Consequentialists can also be divided between rule consequentialists (who want to pick the rule that maximizes good consequences) and act consequentialist (who want to perform the act that maximizes good consequences in each individual case). While rule consequentialism seems a more obvious choice for setting legal rules, a jurisdiction could also adopt a legal standard that instructed a court to make a case by case determination in a more act consequentialist sort of way. The best-interests test for custody has something of this flavor. One could imagine a standard making unconsented-to use of another's genetic material nonactionable in situations where a judge determines that the harm to the party made a genetic parent is outweighed by the benefits to the other party. We might think such a legal standard less desirable than a legal rule, however, because judges make more errors in case-by-case application of the standard than they would in applying a rule that is more precise (even though the rule is facially more over and underinclusive) and because the unpredictability with which the standard is applied might make it less effective in inducing behavioral compliance.
234. See, e.g., Stephen McG. Bundy & Einer Elhauge, Knowledge About Legal Sanctions, 92 MICH. L. REV. 261, 267-79 (1993).
235. For more on this definition and how it relates to other possible definitions, see generally SUMNER, supra note 64.
236. By aggregation I mean to refer to the need to make interpersonal welfare comparisons. There is also the separate question, sometimes also referred to as aggregation, of what kind of function to apply to the welfare comparisons. One could adopt either a straight-out maximization function (utilitarianism) or adopt a function that is distribution sensitive (some form of prioritarianism). My own views lean towards a maximization function, and I employ the maximization framework here, but much of the analysis I offer would seem to operate equally well with a more distribution-sensitive function.
237. Another negative result is that there might be a higher likelihood of accidental half-brother and half-sister incest in such a world. However, the practice of anonymous sperm and egg donation already makes this is a possibility, and it is not clear how much of an increase in such accidental pairings would occur.
238. ELIZABETH BARTHOLET, FAMILY BONDS 164-86 (1993).
239. Bartholet, supra note 55, at 330, 333
240. (quoting MARTIN DALY & MARGO WILSON, HOMICIDE 83 (1988)).
241. I thus reject what Leon Kass has called "The Wisdom of Repugnance," the idea that the feeling of disgust can itself constitute a sufficient normative guide, Leon R. Kass, The Wisdom of Repugnance, in THE ETHICS OF HUMAN CLONING 3, 17-24 (Leon R. Kass & James Q. Wilson eds., 1998), although I am prepared to accept the actual experience of disgust as being something to consider as part of a welfare analysis.
242. The amount of harm from attributional parenthood is very context dependent, because the type and strength of the attributions vary with the context. My initial exigesis of the attributional parenthood idea in Part III was in the context of a preembryo-disposition dispute with a web of closely connected individuals, all of whom are making attributions-neighbors, children, etc. But, as I discussed above, in some situations this thick web of attributions will be absent and the harm consequently lessened. One example is a case where sperm voluntarily donated is used over the contemporaneous objection of the donor and the regime is an anonymous one such that neither the donor nor the child conceived ever learns of the other's identity. There, the sperm donor may perceive himself to be the father of a genetic child he never wanted, but he is not forced to directly confront the perception by the child or third parties that he is the father. There are versions of no-prior-cosent cases where the attributional web can be thinned further still in ways relating to to disclosure and the experience requirement discussed above. See supra note 64. One can imagine a variant of the bathtub case where an individual is unaware the material was ever taken in the first place. If so, he will not even suffer the self-attributional harm, only a probabilistic version of it-the fear that someone at some point took his genetic material without his knowing. That said, it seems unlikely that these nondisclosure cases would predominate and one might argue for a rule preventing all unconsented-to use, even if it is overinclusive, for reasons that track the usual rules versus standards arguments. One might also arrive at the same rule if one relaxed the experience requirement and "counted" harms that were never experienced, although I myself would not endorse such a rule for the reasons set out above.
243. See id. There is a further issue in that some of the probabilistic fear may persist notwithstanding the legal rule preventing unconsented-to use, because of imperfect compliance. Thus, the availability of the technology to facilitate something like the bathtub case may itself produce that fear. Something stronger, like a ban on the technology altogether, might be needed to reduce that fear, but it would have its own costs, including on those who consent to the technology's use.
244. An additional complication is that a rule permitting unconsented-to use might lead to additional births, each of which adds to total welfare. Even if true, this only matters if we adopt a theory that maximizes total welfare rather than one that maximizes average welfare. See, e.g., RAWLS, supra note 113, at 139-68 (comparing average and total utility theories). The vast majority of modern consequentialists seek to maximize average and not total welfare because doing so avoids the problematic conclusion that all laws in society should be set to maximize child
245. Id. at 140;
246. PARFIT, supra note 48, at 384-90.1 follow this tradition.
247. E.g., SPAR, supra note 6, at 1 & 235 n.1 (noting that in the U.S. 15 percent of women and 10-15 percent of men meet the clinical criteria for infertility).
248. Id. at 39, 45. The American Society for Reproductive Medicine estimates that with artificial insemination "the monthly chance of pregnancy ranges from 8% to 15%." AM. SOC'Y FOR REPROD. MED., THIRD PARTY REPRODUCTION: A GUIDE FOR PATIENTS 12 (2006), available at http://www.asrm.org/Patients/patientbooklets/thirdparty.pdf. For information on IVF success rates,
249. see Ertman, supra note 23, at 15.
250. See also infra note 161 and accompanying text.
251. Massachusetts, Illinois, Rhode Island, and New Jersey, have full coverage insurance mandates, while Arkansas, Hawaii, Maryland, Ohio, and West Virginia have what Tarun Jain and colleagues call "partial coverage" mandates. Tarun Jain, Bernard L. Harlow & Mark D. Hornstein, Insurance Coverage and Outcomes of In Vitro Fertilization, 347 NEW ENG. J. MED. 661, 661 (2002).
252. For a more complete listing of the coverage provided by all the states, see Waldman, supra note 3, at 88-89 n.94. Because of ERISA preemption, employers that self-insure can avoid these mandates. 29 U.S.C. § 1144(b)(2)(B) (1994).
253. E.g., Allison Overbay & Mark Hall, Insurance Regulation of Providers That Bear Risk, 22 AM. J.L. & MED. 361, 380 (1996).
254. E.g., Kenneth Baum, Golden Eggs: Towards the Rational Regulation of Oocyte Donation, 2001 BYU L. REV. 107, 119-23.
255. E.g., Cohen, supra note 16, at 691.
256. See e.g., Alvaré, supra note 23, at 13; C. Murray & S. Golombok, Oocyte and Semen Donation: A Survey of the UK Licensed Centres, 15 HUM. REPROD. 2133, 2136 (2000).
257. The so-called endowment effect might be one reason for such uncertainty-giving someone the entitlement can change that person's valuation of it and thus what result is efficient. See, e.g., Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31, 96-97 (1991). If the result varies with the initial allocation of the entitlement, we need some other criteria to figure out which allocation is more desirable.
258. Id.
259. See generally R.H. Coase, The Problem ofSocial Cost, 3 J.L. & ECON. 1 (1960).
260. Cf. CHARLES FRIED, RIGHT AND WRONG 92-93, 98 (1978) (discussing a similar point as to rape). One should be careful not to overstate the strength of this reasoning. It is less persuasive in a case like Phillips where a known individual with whom one has an intimate relationship is the one who will acquire one's genetic material. In such a case, the problem of having to bargain with large numbers of unknown people seems less acute.
261. Cf. RICHARD A. POSNER, SEX AND REASON 386-87 (1992) (making a similar point as to rape).
262. Cf. United States v. Kincade, 379 F.3d 813, 873 (9th Cir. 2004) (Kozinski, J., dissenting) ("[W]e can't go anywhere or do much of anything without leaving a bread-crumb trail of identifying DNA matter."). Perhaps under facts like those of Phillips there were less expensive or difficult steps that could have been taken (searching one's lover's body for saved sperm?). But a regime that requires taking those steps to avoid unconsented-to genetic parenthood might seem undesirable in that it would transform lovers into detectives. A different problem with the focus on self-protective measures is the question of whether individuals would take these measures whatever the legal rule is.
263. See supra note 120.
264. Given Phillips' repeated statements that he did not want to become a genetic parent and his refraining from vaginal sex for that reason, the case actually seemed to present particularly good facts for a claim of conversion. There might be an additional problem in bringing a conversion claim if what was necessary for reproduction could be copied (for example, through some kind of "scan") rather than taken, in analogy to case law holding that "the possession of copies of documents-as opposed to the documents themselves-does not amount to an interference with the owner's property sufficient to constitute conversion." FMC Corp. v. Capital Cities/ABC, Inc., 915 F.2d 300, 303 (7th Cir. 1990). See also Harper & Row Publishers, Inc. v. Nation Enters., 723 F.2d 195, 201 (2d Cir. 1983), rev'd on other grounds, 471 U.S. 539 (1985);
265. Pearson v. Dodd, 410 F.2d 701, 706-08 (D.C. Cir. 1969).
266. Phillips v. Irons, No. 1-03-2992, 2005 WL 4694579, at *3-5 (Ill. App. Ct. Feb. 22, 2005).
267. Id. at*3.
268. Jason E. Pepe, Challenging Congress's Latest Attempt to Confine Prisoners' Constitutional Rights: Equal Protection and the Prison Litigation Reform Act, 23 HAMLINE L. REV. 58, 70 n.93 (1999) (noting that the physical injury requirement persists in Arkansas, Nevada, Florida, Montana, Idaho, Hawaii, Kansas, and Alaska).
269. See, e.g., Martha Chamallas, The Architecture of Bias: Deep Structures in Tort Law, 146 U. PA. L. REV. 463, 492 n.98 (1998) (noting that Pennsylvania has yet to recognize intentional infliction of emotional distress as a tort). This problem is even more acute in cases of negligent infliction of emotional distress ("NIED"), where the physical injury requirement remains the majority rule,
270. see id. at 492, and has posed problems for reproductive tort claims.
271. See, e.g., Creed v. United Hospitals, 600 N.Y.S.2d 151, 151-53 (App. Div. 1993) (denying a NIED claim where a doctor mistakenly implanted one of plaintiffs embryos in another woman because it did not "endanger[] the plaintiffs physical safety or cause[] the plaintiff fear for his or her own physical safety," and this requirement could not be met by the initial "intrusion into the wife's body to extract her ova" because it "was not a cause of the subsequent improper implanting of the wife's fertilized ova into the other woman");
272. Harnicher v. Univ. of Utah Med. Ctr., 962 P.2d 67, 68-72 (Utah 1998) (denying, for similar reasons, an NIED claim resulting from clinic's insemination of a woman with sperm from a donor who did not resemble her husband, rather than sperm from donor chosen by the couple).
273. See also Joshua Kleinfeld, Comment, Tort Law and In Vitro Fertilization: The Need for Legal Recognition of "Procreative Injury," 115 YALE L.J. 237, 239-40 (2005) (noting the difficulty of finding a legal theory that allows recovery of procreative injuries).
274. But see Perry-Rogers v. Obasaju, 723 N.Y.S.2d 28, 29-30 (App. Div. 2001) (allowing emotional distress claim on facts similar to Creed because the emotional distress was foreseeable and because there were medical affidavits attesting to "objective manifestations of their emotional trauma" that created '"a guarantee of genuineness'").
275. Phillips, 2005 WL 4694579, at *4. It seems likely, if not completely certain, that most cases of this kind would meet the other two requirements of HED: that the conduct was extreme and outrageous, and that defendant intended or knew to a high probability that her conduct would inflict severe emotional distress.
276. Id. at *3-4. Phillips presented particularly good facts for these requirements, including the plaintiffs explicit admonitions that he did not want to be a parent, the defendant's deception, and the fact that she informed him of fatherhood in a way calculated to impose distress.
277. Id.
278. See RESTATEMENT (SECOND) OF TORTS § 46 (1965).
279. See also supra note 137.
280. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS, §54, at 360-61 (5th ed. 1984);
281. Chamallas, supra note 137, at 493-94.
282. Phillips, 2005 WL 4694579, at *4.
283. Waldman, supra note 21, at 1049-51. There may be demographic characteristics that correlate well with this heterogeneity. A recent study of two U.K. sperm clinics by Ken Daniels suggests that there are significant differences in preferences for anonymity among sperm donors. In a population of donors made up primarily of older married men with children of their own, 41 percent said they were willing to continue donation if anonymity was removed and 35 percent said they would be very unhappy if genetic offspring traced them, whereas, in another clinic with a donor population made up of unmarried students and young professionals the comparable numbers were 18 percent and 73 percent, respectively.
284. Daniels, supra note 65, at 94. It is also possible that some of the heterogeneity might map onto gender lines, although the currently available evidence on gender differences in donors' reactions to the removal of anonymity is mixed.
285. See Olga van den Akker, A Review of Family Donor Constructs: Current Research and Future Directions, 12 HUM. REPROD. UPDATE 91, 93-94 (2006) (collecting studies).
286. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1092 (1972);
287. Thomas T. Uhl, Note, Bystander Emotional Distress: Missing an Opportunity to Strengthen the Ties that Bind, 61 BROOK. L. REV. 1399, 1449 (1995).
288. Calabresi & Melamed, supra note 143, at 1092.
289. See id. at 1106.
290. E.g., Hawkinson v. A.H. Robins Co., 595 F. Supp. 1290, 1318-36 (D. Colo. 1984) (awarding damages for loss of fertility);
291. Mone v. Greyhound Lines, Inc., 331 N.E.2d 916, 919 (Mass. 1975) (finding damages in a fetal wrongful death case no more speculative than any other tort claim);
292. Hensel, supra note 48, at 161-62 & n.122 (noting the states that have found damages for wrongful birth and conception "easily ascertainable").
293. Thus, while a theoretical remedy would be to force an abortion in a case where a plaintiff became aware of his impending genetic parenthood after his gametic material had been used for insemination but before delivery, that remedy would be ruled out because it would violate the woman's constitutionally protected right to be a gestational parent. See, e.g., Cohen, supra note 5, at 1154-59, There is a further question whether this reasoning might lead us to allow recovery for emotional-distress damages in cases involving natural reproduction and deception as to infertility, where the courts have been hostile to allowing recovery,
294. See supra note 37 and accompanying text. That said, the courts in these cases frequently appeal to a desire not to invade the privacy surrounding intimate sexual relationships and this may distinguish these cases.
295. See supra note 37 and accompanying text. The lack of consent in these cases might also be thought of as less deep than in the bathtub or Phillips-type cases and involve an element of assumption of risk.
296. In the preembryo-disposition cases that have arisen so far, the "contract waiver" has taken the form of a consent form to IVF that has served both as an advance directive and as a contract either between the parties and the clinic or between the parties, or both. Both advance directives and contracts function as precommitment devices whereby a party at the present time specifies a result to occur at some time in the future. However, advance directives, which are fairly common in many bioethics contexts including end of life decisionmaking, differ from contracts because they do not involve an exchange of promises or reliance and the maker is free to change or revoke the directive if capable. See, e.g., Robertson, supra note 22, at 992, 996-1004. To be clear, when I talk about contract waivers I am interested in the contract function of these forms, and one obvious policy suggestion I discuss below,
297. see infra text accompanying note 214, is that contract waivers ought to be severed from consent to treatments and advance directives to the clinic.
298. Robertson, supra note 22, at 1002.
299. For a similar division, see generally Daniel Markovits, Essay, Making and Keeping Contracts, 92 VA. L. REV. 1325 (2006). My claim is not that making contracts compelling genetic parenthood unenforceable would be "contagious" to contract law in general. There is nothing logically inconsistent with recognizing a general rule of freedom of contract but carving out an area of freedom from contract surrounding reproduction; nor is doing so likely to undermine the general commitment to contracts (or promise keeping). This is evident from the decision of a number of states to make surrogacy contracts unenforceable, which has coexisted with the enforceability of most contracts.
300. See, e.g., R.R. v. M.H., 689 N.E.2d 790, 793-94 (Mass. 1998) (surveying state laws on surrogacy contracts).
301. CHARLES FRIED, CONTRACT AS PROMISE 20-21 (1981).
302. Id. at 13.
303. See also Robertson, supra note 22, at 1006-07.
304. Kass v. Kass, 696 N.E.2d 174, 180 (N.Y. 1998).
305. This need for contract would be greater still if the donor of genetic material could demand destruction not only postfertilization but postimplantation as well. However, the current abortion jurisprudence prevents that by treating the right not to be a gestational parent as a trump. See, e.g., Cohen, supra note 5, at 1157-59. Therefore, I focus on cases where the demand will come before implantation.
306. This is a phrase that the Snowflakes Embryo Adoptions program uses in its literature. See NIGHTLIGHT CHRISTIAN ADOPTIONS, SNOWFLAKES EMBRYO ADOPTIONS: FACT SHEET, available at http://www.nightlight.org/ Snowflakesfacts.pdf (last visited Sept. 8, 2008).
307. See, e.g., COMM. ON DOCTRINE, U.S. CONFERENCE OF CATHOLIC BISHOPS, ETHICAL AND RELIGIOUS DIRECTIVES FOR CATHOLIC HEALTH CARE SERVICES pt. 4 (4th Ed. 2001), available at http://www.usccb.orgfoishops/directives.shtml;
308. NAT'L BIOETHICS ADVISORY COMM'N, ETHICAL ISSUES IN HUMAN STEM CELL RESEARCH 49-51 (1999);
309. Coleman, supra note 2, at 66;
310. James J. McCartney, Essay, Embryonic Stem Cell Research and Respect for Human Life: Philosophical and Legal Reflections, 65 ALB. L. REV. 597, 624 (2002).
311. This was the concern expressed by the husband in J.B. v. M.B., 783 A.2d 707, 710 (N.J. 2001) ("For me, as a Catholic, the I.V.F. procedure itself posed a dilemma. We discussed this issue extensively and had agreed that no matter what happened the eggs would be either utilized by us or by other infertile couples."). These concerns cannot be met with a regime that prohibits destruction but mandates indefinite freezing of preembryos in the event of a disagreement as to disposition, both because preembryos cannot survive cryopreservation indefinitely, e.g., Avery W. Gardner, Reproductive Health: Massachusetts Court Holds Contracts Forcing Parenthood Violate Public Policy, 28 J.L. MED. & ETHICS 198, 198 (2000),
312. and because, for those who believe that embryos are ensouled, indefinite cryopreservation may itself be repugnant. E.g., CONGREGATION FOR THE DOCTRINE OF THE FAITH, INSTRUCTION ON RESPECT FOR HUMAN LIFE IN ITS ORIGIN AND ON THE DIGNITY OF PROCREATION: REPLIES TO CERTAIN QUESTIONS OF THE DAY (1987), available at http://www.vatican.va/roman_curia/congregations/cfaith/documents/ rc_con_cfaith_doc_19870222_respect-for-human-life_en.html (last visited May 22, 2007).
313. See, e.g., David M. Smolin, Does Bioethics Provide Answers?: Secular and Religious Bioethics and Our Procreative Future, 35 CUMB. L. REV. 473, 503-04 (2005). Indeed, even the Roman Catholic Church's opposition to IVF has been somewhat muted; it has not, for example, "actively opposed the development of the industry in infertility care."
314. Janet L. Dolgin, Surrounding Embryos: Biology, Ideology, and Politics, 16 HEALTH MATRIX 27, 37 (2006).
315. Jain et al., supra note 124, at 665.
316. This includes maternal risks of premature labor and delivery, pregnancy-induced hypertension, gestational diabetes, and uterine hemorrhage. Id.
317. The risks to the child include still birth and physical and developmental disability, as well as respiratory distress syndrome, intracranial hemorrhage, cerebral palsy, and blindness associated with premature birth. Id.
318. E.g., Alvaré, supra note 23, at 24 (reporting that in 1999, 7 to 13 percent of all selective reduction procedures led to the loss of all fetuses being carried);
319. Judith F. Daar, Selective Reduction of Multiple Pregnancy: Lifeboat Ethics in the Womb, 25 U.C. DAVIS L. REV. 773,780-81 (1992).
320. See, e.g., Nicole Buonocore Porter, Re-Defining Superwoman: An Essay on Overcoming the "Maternal Wall" in the Legal Workplace, 13 DUKE J. GENDER L. & POL'Y 55, 60-68 (2006);
321. Susan A. Kidwell, Note, Pregnancy Discrimination in Educational Institutions: A Proposal to Amend the Family Medical Leave Act of 1993, 79 TEX. L. REV. 1287, 1311 (2001).
322. E.g., SPAR, supra note 6, at 15 ("In the aggregate, female fertility peaks at around age twenty-seven and then declines dramatically after thirty-five");
323. CTRS. FOR DISEASE CONTROL & PREVENTION, 2003 ASSISTED REPRODUCTIVE TECHNOLOGY (ART) REPORT 75 (2005), available at http://www.cdc.gov/ART/ART2003/PDF/ART2003.pdf (noting the average live birth rate for IVF using frozen non-donor eggs is 29.4% for women under age 35, 28.2% for women aged 35 to 37, 22.6% for ages 38 to 40, and 16.5% for ages 41 to 42).
324. AM. SOC'Y FOR REPROD. MED., GENETIC SCREENING FOR BIRTH DEFECTS: PATIENT'S FACT SHEET (2005), available at http://www.asrm.org/Patients/FactSheets/genetic_screening.pdf;
325. Naomi D. Johnson, Note, Excess Embryos: Is Embryo Adoption a New Solution or a Temporary Fix?, 68 BROOK. L. REV. 853, 862 n.77 (2003). Having a child with birth defects may also impose externalities on others if public resources are needed for its care.
326. See Coleman, supra note 2, at 61;
327. John A. Robertson, Ethical and Legal Issues in Cryopreservation of Human Embryos, 47 FERTILITY & STERILITY 371 (1987) (explaining that cryopreservation may be considered "insurance against future sterility."). An alternative insurance strategy-freezing eggs before they are fertilized-has not been particularly successful as of this date, although there is some suggestion in the scientific literature that it is improving.
328. See SPAR, supra note 6, at 60-61;
329. Katheryn D. Katz, Parenthood from the Grave: Protocols for Retrieving and Utilizing Gametes from the Dead or Dying, 2006 U. CHI. LEGAL F. 289, 294 (2006).
330. See CTRS. FOR DISEASE CONTROL & PREVENTION, supra note 161, at 75 (noting that only 11%-37.3%, depending on the mother's age, of IVF cycles using fresh embryos from nondonor eggs result in child birth);
331. Lars Noah, Assisted Reproductive Technologies and the Pitfalls of Unregulated Biomedical Innovation, 55 FLA. L. REV. 603,616 (2003).
332. AM. SOC'Y FOR REPROD. MED., ASSISTED REPRODUCTIVE TECHNOLOGIES: A GUIDE FOR PATIENTS 12 (2007), available at http://www.asrm.org/ Patients/patientbooklets/ART.pdf (noting that 30 percent of patients suffer mild ovarian hyperstimulation while 1 to 2 percent suffer a severe case, and discussing other risks and treatment);
333. Noah, supra note 164, at 620-21;
334. Mary Lyndon Shanley, Collaboration and Commodification in Assisted Procreation: Reflections on an Open Market and Anonymous Donaltion in Human Sperm and Egg, 36 LAW & SOC' Y REV. 257, 264-65 (2002).
335. SPAR, supra note 6, at 213 tbl.7-2
336. (citing Peter Neumann et al., The Cost of a Successful Delivery with In Vitro Fertilization, 331 NEW ENG. J. MED. 239 (1994)).
337. Cryopreserving preembryos is much less costly than repetitive fresh embryo transfers. For example, for the Jones Institute in Norfolk, Virginia, the variable costs of pursuing multiple cycles with fresh eggs instead of cyropreserving consists of $5720 for "cycle stimulation," $2499 for "egg retrieval," and $3000 for "medications" for a per cycle cost of $11,219, in contrast to $1650 for cryopreserving preembryos that have already been harvested. Id. at 59 tbl.7-2.
338. See supra note 124 and accompanying text.
339. This rejoinder, however, is complicated by the fact (discussed above) that in the cases that have so far been litigated these contracts are often part of an advance directive presented by the IVF clinic. Because the IVF clinic may initiate the discussion by presenting the form, it may not be good evidence that the parties really would insist on contract of their own accord. The claim is also complicated by the issue of whether the parties are operating under false impressions as to what the default rule is. More empirical information would be informative here, although it is difficult to measure the segment of the population who is not undertaking assisted reproduction because of lack of contract enforcement.
340. See, e.g., CTRS. FOR DISEASE CONTROL & PREVENTION, supra note 161, at 75;
341. Waldman, supra note 21, at 1054-56.
342. J.B. v. M.B., 783 A.2d 707, 719-20 (N.J. 2001);
343. id. at 720 (Verniero, J., concurring);
344. Davis v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992).
345. See also Evans v. United Kingdom, 2007 Eur. Ct. H.R. 264, ¶6, ¶3 (2007) (joint dissent of Türmen, Tsatsa-Nikolovska, Spielmann and Ziemele); CFH 2401/95 Nahmani v. Nahmani [1996] IsrSC 50(4) 661 (arguing for permitting use in this situation).
346. Further, even if one knows that such contracts will not be enforced there may be limits on what an individual can do to protect oneself against these negative future consequences, for the reasons discussed in the previous section.
347. Davis, 842 S.W.2d at 588. In another, it was the man who wanted to donate to an infertile couple. J.B., 783 A.2d at 710.
348. Cohen, supra note 5, at 1173-85.
349. E.g., Brian Bix, Bargaining in the Shadow of Love: The Enforcement of Premarital Agreements and How We Think About Marriage, 40 WM. & MARY L. REV. 145, 148 & n.12 (1998);
350. Marsha Garrison, Law Making for Baby Making: An Interpretive Approach to the Determination of Legal Parentage, 113 HARV. L. REV. 835, 892-93 (2000).
351. See supra text accompanying note 39.
352. E.g., In re Baby M, 525 A.2d 1128, 1143 (N.J. Super. Ct. Ch. Div. 1987), rev 'd in part, 537 A.2d 1227 (N.J. 1988).
353. See also Cohen, supra note 5, at 1191-92.
354. Tribe, supra note 35, at 3338. The argument encounters a counterclaim that by suggesting that women must be protected from their own choices in this domain, nonenforcement might institutionalize rather than combat gender hierarchy. Further, in the surrogacy context, it may be other women that are benefiting from such contracts in addition to or instead of men.
355. See FABRE, supra note 105, at 206.
356. See, e.g., In re Baby M, 537 A.2d 1227, 1248 (N.J. 1988);
357. FABRE, supra note 105, 126-53 (organ sales);
358. KOROBKIN, supra note 40, at 177-208 (eggs and stem cells);
359. Vicki C. Jackson, Baby M and the Question of Parenthood, 76 GEO. L.J. 1811, 1818-19 (1988) (surrogacy);
360. Anthony T. Kronman, Paternalism and the Law of Contracts, 92 YALE L.J. 763, 777 (1983) (slavery);
361. Radin, supra note 16, at 1910-11 (selling children and body parts).
362. See, e.g., Lori B. Andrews, Beyond Doctrinal Boundaries: A Legal Framework for Surrogate Motherhood, 81 VA. L. REV. 2343, 2365-66 (1995) (expressing concern that unpaid surrogates may be more pressured by friends and relatives than a surrogate paid by a stranger). It is sometimes argued that postnuptial asset agreements favor husbands, but this is due to the financial subject of the agreement and the relative wage disparities between the two. It is hard to see this same dynamic play out in this context, and some have suggested that even for financial postnuptial agreements the effect is more imagined than real.
363. See generally Sean Hannon Williams, Postnuptial Agreements, 2007 WIS. L. REV. 827.
364. E.g., A.Z. v. B.Z., 725 N.E.2d 1051, 1057-59 (Mass. 2000);
365. J.B. v. M.B., 783 A.2d 707, 717-18 (N.J. 2001);
366. Coleman, supra note 2, at 92-93.
367. 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). This argument gives a further reason to distinguish abortion contracts, which present in extreme the types of concerns that make courts unwilling to require specific performance of labor contracts. At the same time, that reasoning is only sufficient to justify rejecting specific performance of abortion contracts, not a damages-only remedy in analogy to the one I discuss in Part V.C. For contracts to provide sperm or egg we need to distinguish cases where the gametic material has not yet been provided, which pose obvious enforcement problems and invasions of bodily integrity,
368. see Marjorie Maguire Shultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality, 1990 WIS. L. REV. 297, 368-69 (1990),
369. from attempts to retake gametic material already provided but not yet used, which do not since the gametic material is already in the hands of a sperm bank, an IVF clinic, or the ultimate recipient. Sperm banks and IVF facilities also routinely require testing of the health of the provider for months after the gametic material is provided, see, e.g., Alvaré, supra note 23, at 10;
370. Ertman, supra note 23, at 15 & n.48, 18, so there may be problems enforcing the requirement for postprovision testing.
371. E.g., A.Z., 725 N.E.2d at 1058-59;
372. J.B., 783 A.2d at 717-18.
373. A.Z., 725 N.E.2d at 1058.
374. See supra note 3 and accompanying text.
375. See, e.g., I. Glenn Cohen, Recent Case, Supreme Court of New Jersey Holds that Preembryo Disposition Agreements Are Not Binding when One Party Later Objects: J.B. v. M.B., 115 HARV. L. REV. 701, 708 (2001).
376. Saul Levmore, Norms as Supplements, 86 VA. L. REV. 1989, 2021 (2000).
377. California mandates that a physician present those seeking fertility treatments with a standardized form in which they can specify dispositional preferences at to unused preembryos. CAL. HEALTH & SAFETY CODE § 125315(b) (West 2006). Coleman briefly suggests there may be an "inherently coercive aspect of a rule that makes signing an advance agreement a condition of undergoing treatment with IVF."
378. Coleman, supra note 2, at 104. I fail to see what is wrong with requiring individuals to make a choice as to preembryo disposition, rather than requiring the courts to do it for them ex post. In a sense, the parties cannot avoid choosing - if they do not contract around it they will have chosen the default, whatever it is set at. Things might be different if we feared that "a physician would condition treatment on a patient's consent to a particular disposition option."
379. Id. (emphasis added). But even Coleman recognizes this as "unlikely," id., and even assuming dubitante that it did prove to be a concern, the better solution would be to make the conditioning of treatment on choosing a particular disposition illegal.
380. For background on bounded rationality, see Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1477-78 (1998);
381. Russell B. Korobkin & Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics, 88 CAL. L. REV. 1051, 1075-1102 (2000).
382. See Lynn A. Baker & Robert E. Emery, When Every Relationship Is Above Average: Perceptions and Expectations of Divorce at the Time of Marriage, 17 LAW & HUM. BEHAV. 439, 443 (1993). These studies were performed on those seeking marriage licenses, and there has been some suggestion that the already-married suffer from less overoptimism bias.
383. See Williams, supra note 179, at 849-50.
384. Melvin Aron Eisenberg, The Limits of Cognition and the Limits of Contract, 47 STAN. L. REV. 211, 254-58 (1995).
385. Jeremy A. Blumenthal, Law and the Emotions: The Problems of Affective Forecasting, 80 IND. L. J. 155, 162-63 (2005).
386. Id. at 166.
387. Id. at 167-68.
388. Jackson, supra note 178, at 1818-19 (internal footnote omitted).
389. Johnson v. Calvert, 851 P.2d 776, 785 (Cal. 1993).
390. JULIA J. TATE, SURROGACY: WHAT PROGRESS SINCE HAGAR, BILHAH, AND ZILPAH! 3-4 (1994).
391. See also ROBERTSON,
392. supra note 11, at 131-32;
393. Shultz, supra note 181, at 384.
394. For recent state by state surveys on this issue, see JUDITH F. DAAR, REPRODUCTIVE TECHNOLOGIES AND THE LAW (2006);
395. Kevin Tuininga The Ethics Of Surrogacy Contracts And Nebraska's Surrogacy Law, 41 CREIGHTON L. REV. 185, 188-90 (2008).
396. A.H.W. v. G.H.B., 772 A.2d 948, 953 (N.J. Super. Ct. Ch. Div. 2000).
397. Katharine T. Bartlett, Re-Expressing Parenthood, 98 YALE L.J. 293, 333 (1988).
398. Jackson, supra note 178, at 1819 n.19. Jackson emphasizes not only the observation that the bond does develop, but the normative claim that we want it to occur. Id. at 1818-19. Although she does not spell out her reasoning, such a bond may be important in ensuring, for example, that the surrogate not undertake activities (such as alcohol consumption) that will harm the fetus. This argument too is inapposite as to cryopreserved preembryos, where the formation of the pregestation bond does not have the same beneficial qualities.
399. E.g., A.Z. v. B.Z., 725 N.E.2d 1051, 1058-59 (Mass. 2000);
400. J.B. v. M.B., 783 A.2d 707, 717-18 (N.J. 2001).
401. See also John A. Robertson, Prior Agreements for Disposition of Frozen Embryos, 51 OHIO ST. L.J. 407, 421-22 (1990) (advancing this view).
402. Blumenthal, supra note 191, at 217
403. (citing Coleman, supra note 2, at 119).
404. Id. at 212 (citing Hazel Baslington, The Social Organization of Surrogacy: Relinquishing a Baby and the Role of Payment in the Psychological Detachment Process, 7 J. HEALTH PSYCHOL. 57 (2002)).
405. Id. at 212.
406. See, e.g., Caren B. Jordan, Cynthia D. Belar & R. Stan Williams, Anonymous Oocyte Donation: A Follow-Up Analysis of Donors' Experiences, 25 J. PSYCHOSOMATIC OBSTETRICS & GYNECOLOGY 145, 147-48 (2004) (finding that, at a mean follow-up time of 21 months after donating, 83.3% of 24 egg donors had no regrets about participation, and those who did express regret primarily identified health problems and financial difficulties as the cause);
407. A.L. Kalfoglou & J. Gittelsohn, A Qualitative Follow-Up Study of Women's Experiences with Oocyte Donation, 15 HUM. REPROD. 798, 799, 803-04 (2000) (finding in a follow-up study on thirty-three paid egg donors who had donated in the past 3 years "[n]one of the participants reported that they regretted the oocyte donation," although some had complaints about the medical care they received and wished they were informed about whether the eggs they had donated lead to successful births);
408. Susan Caruso Klock, Andrea Mechanick Braverman & Deidra Taylor Rausch, Predicting Anonymous Egg Donor Satisfaction: A Preliminary Study, 7 J. WOMEN'S HEALTH 229, 229-30, 232-36 (1998) (follow-up study on 25 paid egg donors two weeks after donation finding that 80% would be willing to donate again and 76% reported being "very satisfied" on a measure of psychological satisfaction with donation);
409. L.R. Schover et al., Psychological Follow-Up of Women Evaluated As Oocyte Donors, 6 HUM. REPROD. 1487, 1487-89 & tbl.2 (1991) (follow-up at the 6- and 12-month point with 23 paid egg donors finding that 91% reported moderate to extreme satisfaction with the experience of egg provision, 74% would provide again if asked, and 100% would recommend that a friend consider donating).
410. See also Viveca Söderström-Anttila, Follow-Up Study of Finnish Volunteer Oocyte Donors Concerning Their Attitudes to Oocyte Donation, 10 HUM. REPROD. 3073, 3073-75 & tbl.1 (1995) (follow-up at the 12-18 month point with 30 altruistic Finnish egg donors, finding that no donor expressed regret at having donated eggs, and 78% said they would donate again if asked). For a study with a somewhat less positive report on donor psychological satisfaction,
411. see Matthew Partrick et al., Correspondence, Anonymous Oocyte Donation: A Follow-Up Questionnaire, 75 FERTILITY & STERILITY 1034 (2001) (finding that after 2 years, of 21 paid egg donors, 5 (23.8%) regretted their donation and 6 (28.6%) reported feeling sad, angry or regretful, but only one of these pointed to concerns about the child rather than medical issues and the time-consuming nature of the process).
412. Jordan et al., supra note 205, at 147;
413. van den Akker, supra note 142, at 94. In terms of sperm donation,
414. These limitations include the small sample sizes of the studies, the possibility of selection bias in responders versus nonresponders, and the fact that follow-up was done within three years from the date of donation such that it could not measure the possibility of a longer time lag before regret sets in. Moreover, egg donation differs in important ways from the preembryo-disposition cases, in particular as to the possibility of anonymity.
415. Peter R. Brindsen et al., Frozen Embryos: Decision in Time in the U.K., 10 HUM. REPROD. 3083, 3083-84 (1995) (finding that of 90 couples who initially offered their preembryos for donation, 69 (76.7%) remained firm in their desire to donate years later);
416. J. Lornage et al., Six Year Follow-Up of Cryopreserved Human Embryos, 10 HUM. REPROD. 2610, 2613 (1995) (finding that of 145 couples who had cryopreserved preembryos, only 40 (27.6%) had changed their attitude regarding disposition at the 5-year mark).That said, one might think that this level of change in preference is itself too high. If one were to imagine a universe of all enforceable contracts entered into in our society, it is quite possible that the rate of change in preference for the median contract would be below 25 percent. On the other hand, there are certainly contracts that we do treat as enforceable which have changes in preferences that are that high or higher (prennuptial contracts, for instance). My larger point, however, is that this form of head counting is only part of the equation; while the likelihood that individuals will change their minds matters, so does the need for contract in a particular domain. For the reasons I have provided above, I think contract is particularly important in this domain, such that we ought to tolerate a substantially higher risk of changed preferences than we might for other contracts. Of course, how one will calibrate this balance will depend to a great extent on the amount of paternalism in contracts one is comfortable with.
417. Susan C Klock et al., Correspondence, The Disposition of Unused Frozen Embryos, 345 NEW ENG. J. MED. 69 (2001).
418. Id. at 69.
419. The authors report that: Thirteen of 22 couples who had initially opted for disposal now wanted either to use or to donate the embryos. 9 of 11 couples who had initially opted for donation to an infertile couple no longer chose that option: 2 couples now decided to use the embryos, 2 chose to thaw them, 3 continued storage, and 2 donated the embryos to research. Seven of eight couples who had initially planned to donate the embryos to research now chose either to use the embryos or to dispose of them. Id.
420. Gonzales v. Carhart, 127 S. Ct. 1610, 1648 (2007) (Ginsburg, J., dissenting) (quoting the majority).
421. Id.
422. For criticisms of the actual forms used along these lines, see A.Z. v. B.Z., 725 N.E.2d 1051, 1056-57 (Mass. 2000);
423. J.B. v. M.B., 783 A.2d 707, 713-14 (N.J. 2001).
424. This would use a different cognitive bias, the availability heuristic (the tendency of people to overestimate the likelihood of occurrence of particularly vivid and salient events) to counteract overoptimism bias, a promising debiasing strategy but one that also has significant limits. See Christine Jolis & Cass R. Sunstein, Debiasing Through Law, 35 J. LEGAL STUD. 199, 209-16 (2006);
425. Sean H. Williams, Sticky Expectations: A Cost-Benefit Approach to Persistent Irrational Optimism 25-26 (unpublished manuscript, on file with author). One countervailing consideration against using debiasing strategies in this context, even when effective, is the possibility that "[u]nrealistic optimism creates benefits" for the marriage relationship,
426. Williams, supra, at 26, although the existing empirical literature has not examined the effect on relationships of "marriage-specific optimism," only the effects of "overall dispositional optimism,"
427. id. at 28. Even if it were demonstrated that there were robust relationship benefits from overoptimism about the chance of divorce, there would be a further question about the morality of fostering such "false consciousness" given the very tangible costs of individuals failing to protect themselves against the possibility of divorce.
428. Such counseling is already common in egg donation, and sometimes includes an opportunity for prospective egg donors to meet those who have already undergone the process. See, e.g., Mark V. Sauer & Richard J. Paulson, Oocyte Donors: A Demographic Analysis of Women at the University of Southern California, 7 HUM. REPROD. 726, 727 (1992).
429. See N.H. REV. STAT. ANN. § 168-B:23(III) (2008) (judicial preclearance of surrogacy contracts). Other kinds of interventions used in the surrogacy agreement context, such as requiring that each party be represented by an attorney before signing the agreement, e.g., 750 ILL. COMP. STAT. ANN. 47/35(a) (2008), seem to be less useful as to these cases since attorney involvement is a corrective for actual duress or inability to understand the contract, not for bounded rationality and affective forecasting errors. But see Robertson, supra note 22, at 1016 (advocating this intervention in the preembryo context).
430. Cass R. Sunstein & Richard H. Thaler, Libertarian Paternalism Is Not an Oxymoron, 70 U. CHI. L. REV. 1159, 1159-60 (2003)
431. Colin Camerer et al., Regulation for Conservatives: Behavioral Economics and the Case for "Asymmetric Paternalism," 151 U. PA. L. REV. 1211, 1212 (2003).
432. For a review of the research on debiasing, see generally Jolis & Sunstein, supra note 215.
433. Coleman, supra note 2, at 95.
434. Waldman, supra note 21, at 1051.
435. See Radin, supra note 110, at 959, 966-67.
436. See, e.g., J. Thomas McCarthy, The Human Persona as Commercial Property: The Right of Publicity, 19 COLUM-VLA J. L. & ARTS 129, 130-31 (1995).
437. See, e.g., id.
438. Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 HARV. INT'L L.J. 353, 355-56, 359 (2006) (internal citation omitted).
439. Id. at 373-74 (describing the French case Whistler v. Eden, Cass. ch. civ., Mar. 14, 1900, D. P. 1900 I, 497 (Fr.)). Even in continental Europe the right is limited in that the right ceases at the point where the art is actually delivered to the patron,
440. id. at 373 (citing Whistler v. Eden, D.P. 1900, 1, 497, 500),
441. and the breaching artist is liable for damages; it is only a specific performance remedy that is not available. Id. at 373-74. This suggests that the real rationale may not be moral rights at all but the normal difficulties with ordering specific performance of contracts for labor.
442. Neil Netanel, Alienability Restrictions and the Enhancement of Author Autonomy in United States and Continental Copyright Law, 12 CARDOZO ARTS & ENT. L.J. 1, 30 (1994);
443. Rigamonti, supra note 226, at 374.
444. 17 U.S.C. §§ 101, 106A. (2000).
445. See also Rigamonti, supra note 226, at 405-07;
446. Brandi L. Holland, Note, Moral Rights Protection in the United States and the Effect of the Family Entertainment and Copyright Act of 2005 on U.S. International Obligations, 39
447. VAND. J. TRANSNAT'L L. 217, 219 (2006). Even as to the moral rights the United States does recognize, the Act does not prevent advance waiver, but merely requires waivers to be done by a written instrument that identifies the work and uses to which the waiver applies, rather than a blanket waiver. Rigamonti, supra note 226, at 406.
448. Further, to reiterate a point I made earlier, by singling out contracts compelling genetic parenthood for nonenforcement, the law seems to endorse the view that our genes really are central to our personhood, a view that reifies genetic determinism.
449. E.g., In re Baby M, 525 A.2d 1128, 1159 (N.J. Super. Ct. Ch. Div. 1987), rev'd in part, 537 A.2d 1227 (N.J. 1988);
450. Margaret Friedlander Brinig, A Maternalistic Approach to Surrogacy: Comment on Richard Epstein's Surrogacy: The Case for Full Contractual Enforcement, 81 VA. L. REV. 2377, 2390 (1995);
451. John A. Robertson, Embryos, Families, and Procreative Liberty: The Legal Structure of the New Reproduction, 59 S. CAL. L. REV. 939, 1015 (1986).
452. See supra note 227 and accompanying text. For art, however, this might be better explained by the usual reasons the law forbids specific performance of contracts for labor. Id.
453. Kronman, supra note 178, at 783-84.
454. Id. at 783.
455. Id.
456. Would expectation damages be too speculative, see RESTATEMENT (SECOND) OF CONTRACTS § 352 (1981), or could we analogize to damages in tort cases like wrongful death of a fetus and loss of fertility?
457. See supra text accompanying note 146. There is also a problem in that the majority of IVF cycles fail, so even had the preembryo been made available it may not have led to a successful childbirth. However, this might be dealt with by conceiving the injury as a "loss of chance" for genetic reproduction, in analogy to the theory recognized in some wrongful death cases, e.g., Herskovits v. Group Health Coop. of Puget Sound, 664 P.2d 474. 479 (Wash. 1983),
458. or in analogy to the Restatements treatment of aleatory contracts, RESTATEMENT (SECOND) OF CONTRACTS § 348(3) & cmt. d. (discussing recovery for a "chance of winning"). If expectation damages were a problem, using a liquidated damages clause,
459. see id. § 356(1), may be a possible solution, as would granting reliance damages,
460. see id. § 349. There is a further question about the duty to mitigate damages from breach of contract. It seems unlikely that courts would treat adopted children as a mitigative substitute given that they are not genetically-related and tend to be older. Requiring a still-fertile individual to seek out a sperm or egg donor to mitigate damages is more plausible but still seems unlikely, and perhaps we can analogize to the case law that developed around breaches of contracts to marry (when those contracts were still recognized) holding that "the fact that the plaintiff in a breach of promise suit has subsequently married another cannot be considered in mitigation of damages resulting from the breach of the marriage contract."
461. J.P. Ludington, Annotation, Measure and Elements of Damages for Breach of Contract to Marry, 73 A.L.R.2d 553, 601 (1960). If this form of mitigation were required it would lead to difficult questions about whether the substitute provider must have similar characteristics (and which ones).
462. See, 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, 1021 (2005).
463. Id. at 1019. This is the so-called "bargain principle."
464. Id. at 1018.
465. Id. at 979
466. (quoting Richard Craswell, Contract Remedies, Renegotiation, and the Theory of Efficient Breach, 61 S. CAL. L. REV. 629, 636 (1988)).
467. Cf. Richard A. Epstein, Surrogacy: The Case for Full Contractual Enforcement, 81 VA. L. REV. 2305, 2337 (1995) (making this point in the context of surrogacy).
468. Cf. id.
469. A different objection that I do not find persuasive is that such a regime would problematically commodity the value of having genetically related children. Cf. Shultz, supra note 181, at 361 (making a similar argument as to damages for breach of a surrogacy agreement). This is a form of the larger anticommodificationist claim that putting a dollar value on certain goods is value denigrating and does violence to the way we think these goods are best characterized, a claim that I and others have critiqued. E.g., FABRE, supra note 105, at 135-41, 190-91;
470. Cohen, supra note 16, at 692-701. Even on its own terms, however, that argument does not clearly require rejection of a damages-only remedy here. This is not like selling a child, a paradigmatic exchange the anti-commodificationist wants to block. Selling a child expresses an attitude of "value equilibrium" or even-steven symmetry between the things being exchanged on both sides of the transaction, that one values the child as much and in the same mode as one values the amount of money.
471. See Cohen, supra note 16, 693-705. By contrast, the same failures of the indifference principle mean that collecting damages for breach of a contract to provide preembryos does not indicate that one believes there is value equilibrium between the damages award and the preembryos one has been denied. It is more like collecting $5 million as tort damages for the wrongful death of a child: it does not express that one would trade the $5 million for the child.
472. Id. at 703-10.
473. See also MARGARET JANE RADIN, CONTESTED COMMODITIES 184-205 (1996). This anticommodification argument also seems to prove too much in that it would require one to forbid (and police) the making of side payments to avoid pursuing an action for breach, a sort of specific-performance-only regime.
474. Or, more accurately, we might call the requirement "contract plus," because a number of interventions I suggested would improve consent. See supra text accompanying notes 213-19.
475. Another way of putting the issue is that if we treat individuals as having a baseline right not to be a genetic parent without any consent, we have at least two options in setting the "altering rule," the rule that tells "private parties the necessary and sufficient conditions for contracting around a default." Ian Ayres, Menus Matter, 73 U. CHI. L. REV. 3, 6 (2006).
476. See also Oren Bracha, Standing Copyright Law on Its Head? The Googlization of Everything and the Many Faces of Property, 85 TEX. L. REV. 1799, 1810 (2007) (invoking the similar idea of a "transformation rule," a rule that specifies the "conditions for transformation of the legal arrangement with respect to either ... the brand of legal entitlement or its enforcement rule"). Part V establishes that contract is a sufficient altering rule, and now the question is whether it is a necessary one. We could have an altering rule of forfeiture, that one has contracted around the default without contracting, but by merely cryopreserving preembryos in the first place, as two courts have suggested.
477. See supra note 20.
478. There are further questions about what the default rule ought to be for nonreproductive uses of gametic material, such as donation of preembryos to research. These are interesting issues, see, e.g., Russell Korobkin, Autonomy and Informed Consent in Nontherapeutic Biomedical Research, 54 UCLA L. REV. 605, 626 (2007), but because they do not implicate rights not to procreate, I do not explore them here.
479. E.g., Russell Korobkin, "No Compensation " or "Pro Compensation ": Moore v. Regents and Default Rules for Human Tissue Donations, 40 J. HEALTH L. 1, 14-18 (2007).
480. Id. at 18-21.
481. See, e.g., Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 YALE. L.J. 87, 97 (1989);
482. Korobkin, supra note 245, at 16.
483. Might it be possible to set a default that would create incentives for the IVF clinic, a repeat player in these interactions, "to inform the couple about the default rule and to encourage full and frank discussions that would likely minimize post-divorce disputes," by setting the default at destruction and thereby depriving the clinics of preembryos for research use or availability for other individuals to "adopt"? See Cohen, supra note 185, at 708. It is unclear how strong the IVF clinic's incentive is or how sizable an effect this would have in practice, but perhaps this provides an additional reason to favor the non-use default.
484. Korobkin, supra note 245, at 18.
485. E.g., id. Two good examples of status quo bias in default rules are the empirical finding that car owners will stick with either no-fault or fault-based insurance depending on what the default law of the jurisdiction is, and the finding that with workplace-sponsored 401Ks, more workers will invest "if they must opt-out of participation than if they must opt-in, even when opting in or out is easy and costless."
486. Id. at 19
487. (citing David Cohen & Jack L. Knetsch, Judicial Choice and Disparities Between Measures of Economic Values, 30
488. OSGOODE HALL L.J. 737, 747 (1992);
489. Brigitte C. Madrian & Dennis F. Shea, The Power of Suggestion: Inertia in 401 (k) Participation and Savings Behavior, 116 Q. J. ECON. 1149, 1149 (2001)).
490. Korobkin, supra note 245, at 18. Cf. Sunstein & Thaler, supra note 218, at 1162, 1187-88 (making a similar point in the context of consumer protection).
491. To be sure, the policy-supporting approach is not endorsed by everyone, with some rejecting on philosophical grounds the use of defaults to influence behavior to the benefit of third parties. This is an interesting political philosophical debate that I will not fully engage here.
492. See, e.g., SPAR, supra note 6, at 174-89 (discussing the population of adoptees available from U.S. foster care and comparing it to those available for international adoptions);
493. id. at 176-78 (noting that adoption of older and special needs children "[s]adly ... is the one area of adoption that does not suffer from a lack of supply");
494. Katherine T. Pratt, Inconceivable? Deducting the Costs of Fertility Treatment, 89 CORNELL L. REV. 1121, 1179 (2004) (noting "the shortage of non-special needs, American-born children available for adoption").
495. See also CHILDREN'S BUREAU, U.S. DEP'T OF HEALTH & HUMAN SERVS., THE AFCARS REPORT (2008), available at http://www.acf.hhs. gov/ programs/cb/stats_research/afcars/tar/reportl4.pdf (collecting demographic information on children in U.S. foster care in 2006).
496. See, e.g., BARTHOLET, supra note 118, at 24-38;
497. Martha A. Field, Surrogacy Contracts - Gestational and Traditional: The Argument for Nonenforcement, 31 WASHBURN L.J. 1, 8 (1991).
498. In a future project, The Adoption and Reproductive Technology Trade-Off?, I plan on examining the issue in part by looking at the introduction of insurance mandates covering IVF in certain states and the effect they have had on adoption rates.
499. E.g., SPAR, supra note 6, at 176-77;
500. Solangel Maldonado, Discouraging Racial Preferences in Adoptions, 39 U.C. DAVIS L. REV. 1415, 1435-39 (2006).
501. See Maldonado, supra note 245, at 1431-34.
502. See, e.g., Naomi Cahn, Perfect Substitutes or the Real Thing?, 52 DUKE L.J. 1077, 1153 (2003) (noting the results of a 2002 survey finding that "only 75 percent believed that adoptive parents love their children as much as they would have loved their biological children, and fewer (less than 60 percent) believed that adoptive parents receive the same amount of satisfaction from raising an adoptive child as from raising a biological child")
503. (citing HARRIS INTERACTIVE, INC., NATIONAL ADOPTION ATTITUDES SURVEY: RESEARCH REPORT 6, 20, 37 (2002), available at http://www.adoptioninstimte.org/survey/Adoption_Attitudes_Survey.pdf).
504. E.g., Paul Menzel et al., The Role of Adaptation to Disability and Disease in Health State Valuation: A Preliminary Normative Analysis, 55 SOC. SCI. & MED. 2149 (2002).
505. But see MARK S. STEIN, DISTRIBUTIVE JUSTICE AND DISABILITY, 25-30 (2006) (arguing that accounts of adaptation are exaggerated). As in the disability literature, there are interesting normative questions of which preferences (adapted or unadapted) to "count."
506. Cf. BLAISE PASCAL, PENSÉES 211-14 (Roger Ariew ed. & trans., 2005) (1670) ("Pascal's wager" argument for acting as though one believed in God). To make a parallel point, a number of courts and commentators have suggested that even if we were certain that preembryos were not persons, they might nonetheless be accorded a sort of lesser moral status and be due "special respect" because of their potentiality for personhood or their symbolic association with human life. E.g., Davis v. Davis, 842 S.W.2d 588, 596-97 (Tenn. 1992);
507. Coleman, supra note 2, at 67-68. While that status would be insufficient to justify a prohibition on destruction or a rejection of private ordering, it too might be deemed sufficient to justify setting the default at preembryo use.
508. Korobkin, supra note 245, at 14. In this case (as in all of these cases) one might respond that to the extent we err in picking the welfare-maximizing default, the individuals can always renegotiate after the fact such that all that is at stake is transaction costs - if I really value access to the preembryos more than you value the entitlement not to be a genetic parent, I can purchase it from you, making both of us better off. The problem is that given that the conflict is occurring postdivorce, it is probable that acrimony will make these welfare-enhancing trades unlikely to occur.
509. See, e.g., Ward Farnsworth, The Economics of Enmity, 69 U. CHI. L. REV. 211, 212 (2002). This acrimony also raises the possibility that an individual will oppose reproductive use of the preembryos by his ex-spouse not because of an aversion to unwanted genetic parenthood, but purely out of spite. Even if one thought this motivation was problematic, it is not clear that the legal system has ready tools to identify and separate out these kinds of cases.
510. Korobkin, supra note 245, at 14-15, Related to the majoritarian approach, but more deeply rooted in a consent rather than economic theory, is the "conventionalist" approach to setting defaults that sets the default to match "the commonsense expectations that are implicit in the parties' silence in the absence of any bargaining."
511. Randy E. Bamett, The Sound of Silence: Default Rules and Contractual Consent, 78 VA. L. REV. 821, 893 (1992). This approach also supports setting a default rule at non-use, at least in the preembryo cases, in that it seems plausible that most individuals understand the act of cryopreserving preembryos as making them available for use in the course of that (and only that) marriage. There is some (weak) empirical support for the claim that non-use would be the conventionalist default from studies showing that only a minority of patients favor reproductive uses of their cryopreserved preembryos.
512. See, e.g., Karin Hammarberg & Leesa Tinney, Deciding the Fate of Supernumerary Frozen Embryos: A Survey of Couples ' Decisions and the Factors Influencing Their Choice, 86 FERTILITY & STERILITY 86, 88 tbl.2 (2006) (survey of 311 couples at one IVF clinic finding that only 16% wanted to donate embryos to another couple compared to 30% who wanted to discard and 42% who wanted to donate the embryos to research);
513. Klock, supra note 209, at 69-70 (survey of 52 couples at one IVF clinic finding that only 13% chose to donate them to an infertile couple, compared to 33% choosing to discard, 29% continuing storage, 12% using them immediately, 10% donating to research, and 4% who were undecided);
514. Anne Drapkin Lyerly & Ruth R. Faden, Willingness to Donate Frozen Embryos for Stem Cell Research, 317 SCIENCE 46, 46-47 (2007) (finding that of 1020 U.S. respondents who had cryopreserved preembryos currently in storage, only 22% indicated that they "were somewhat or very likely to donate them to another couple intending pregnancy," with a comparable percentage "likely to thaw and discard them," and 49% "were somewhat or very likely to donate their embryos for research purposes.").
515. To be clear, these studies concern preferences for reproductive use of fertilized preembryos by strangers, and their application to spousal-use preferences is uncertain. Moreover, there may be a divergence between the results from polling preferences and the results that actual bargaining may bring about - the polling does not take into account the strength of preference, and one partner might easily cede a weak preference to another partner's much stronger one. More empirical work would be desirable to support the conventionalist account.
516. In Lon Fuller's classic article, Consideration and Form, he suggested that certain contract formalities, such as the writing requirement, serve a cautionary function by forcing the parties to undertake a minimal amount of reflection before being bound by a contract. Lon L. Fuller, Consideration and Form, 41 COLUM. L. REV. 799 (1941).
517. See also Ayres & Gertner, supra note 247, at 124 (discussing the cautionary function of contract in Fuller's work). To the extent that, as suggested by some of the authors discussed in Part V, paternalistic impulses should lead us to want to protect individuals from too lightly assuming the burden of unwanted genetic parenthood, setting a default at no-use is also desirable in that it serves this cautionary function.
518. See Sunstein & Thaler, supra note 218, at 1162, 1187-88.
519. Camerer et al., supra note 219, at 1212.
520. Evans v. United Kingdom, 2007 Eur. Ct. H.R. 264, ¶¶ 13-17.
521. Id. ¶¶ 15-19, 37-38.
522. At the time of cryopreservation, the couple was apparently informed about the provision of the law allowing the withdrawal of consent. Id. ¶¶ 15. The woman challenged the Act's provisions authorizing withdrawal of consent as violative of various provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
523. Id. ¶¶ 1, 3.
524. Id. ¶¶ 81, 90.
525. Id. ¶¶ 6, 13 (joint dissent of Türmen, Tsatsa-Nikolovska, Spielmann and Ziemele).
526. Waldman, supra note 3, at 99-100. I quote from Waldman's translation of the passage, since a full English translation of the decision, CFH 2401/95 Nahmani v. Nahmani [1996] IsrSC 50(4) 661, is not currently available.
527. Is the cause of the infertility relevant? Would it be desirable to differentiate between the appellant in Evans who has become infertile through no fault of her own and someone whose infertility is caused by "bad" behavior? The question of assigning "responsibility" for poor health states is a very controversial one, and there is an emerging literature debating when it is appropriate.
528. See, e.g., Daniel Wikler, Personal and Social Responsibility for Health, 16 ETHICS & INT'L AFF. 47 (2002). Putting to one side when it would be appropriate to consider responsibility for health states in other settings (such as setting insurance premiums, determining Medicaid benefits, or allocating organs), tailoring the default rule to "good" behavior here seems a poor choice; from the point of view of deterring bad health behavior, this seems like a very attenuated stick, and it seems costly and undesirably invasive (if even possible) for courts to be making these kinds of inquiries into the causes of infertility.
529. Thus, in the prior Chamber's decision in Evans, two justices who would have favored the mother's right to use the preembryos were careful to note that that the balance of interests "might lead to a different conclusion if the applicant had another child." Evans v. United Kingdom, 2006 Eur. Ct. H.R. 200, ¶ 6 (Traja, J., & Mijović, J., dissenting).
530. See also id. ¶ 9.
531. This reasoning would not, however, be valid in cases where the prior genetic child stemmed from a prior marriage; for example, if Abigail has a genetic child with Ben, her first husband, but wants to use preembryos fertilized with Mark, her second (now ex-) husband.
532. See supra notes 161-62 and accompanying text.
533. And what of women who cannot afford multiple attempts? On the one hand, both cost barriers and biological barriers to having genetic children are equally real as obstacles. On the other hand, we might think that cost barriers are faced by all women seeking to use reproductive technology, and demand a more general solution such as including IVF in insurance mandates, as some states have done. See supra note 124.
534. Many U.S. clinics limit the providing of IVF services to women under age forty. E.g., BARTHOLET, supra note 118, at 192. Whether these age restrictions are justified is a contentious issue; for present purposes I just want to note that "wait and see" may move some women from being within range to being outside of the permissible age range for particular clinics.