Beyond best interests

Minnesota Law Review

Volumn 96, Issue 4, 2012, Pages 1187-1274

  Cohen, I Glenn ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 84860120327     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (208)

1. -316 U.S. 535, 541 (1942).
2. I borrow this term "secret ambition" from Dan Kahan, who has sought to make a similar showing as to the role played by the "deterrence" idiom in criminal law. Dan M. Kahan, The Secret Ambition of Deterrence, 113 HARV. L. REV. 413, 416-17 (1999). More precisely, Kahan's claim is that the "rhetoric of deterrence displaces an alternative expressive idiom that produces incessant illiberal conflict over status" such that "[c]itizens of diverse commitments converge on the deterrence idiom to satisfy social norms against contentious public moralizing; public officials likewise converge on it to minimize opposition to their preferred policy outcomes."
3. See generally I. Glenn Cohen, Regulating Reproduction: The Problem with Best Interests, 96 MINN. L. REV. 423 (2011).
4. See generally Seana Valentine Shiffrin, Wrongful Life, Procreative Responsibility, and the Significance of Harm, 5 LEGAL THEORY 117 passim (1999).
5. See, e.g., Dena S. Davis, Genetic Dilemmas and the Child's Right to an Open Future, 27 HASTINGS CENTER REP. 7 (1997);
6. Carter Dillard, Child Welfare and Future Persons, 43 GA. L. REV. 367 (2009);
7. Elizabeth Harman, Can We Harm and Benefit in Creating?, 18 PHIL. PERSP. 89, 93 (2004);
8. F.M. Kamm, Baselines and Compensation, 40 SAN DIEGO L. REV. 1367, 1385 (2003);
9. James Woodward, The Non-Identity Problem, 96 ETHICS 804 (1986).
10. See, e.g., Johnson v. Calvert, 851 P.2d 776, 783-84 (Cal. 1993);
11. In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893, 900-01 (Ct. App. 1994).
12. UNIF. PARENTAGE ACT § 5(b), 9B U.L.A. 377, 408 (1973).
13. See, e.g., I. Glenn Cohen & Daniel L. Chen, Trading-Off Reproductive Technology and Adoption: Does Subsidizing IVF Decrease Adoption Rates and Should it Matter?, 95 MINN. L. REV. 485, 502 n.83, 536-40 (2010).
14. JOHN STUART MILL, ON LIBERTY 13 (Elizabeth Rapaport ed., 1978) (1859) ("That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.").
15. Cf. JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARM TO OTHERS 26-27 (1984) (developing a much fuller taxonomy of justifications for criminal law interventions).
16. To wit, I briefly discuss distinctions as to the severity of the reproductive interests that are being stymied - for example, a governmental intervention that prevented you from having an eighth genetically related child when you already had seven might be viewed quite differently than an intervention that prevented you from having any genetically related children, and short delays in the timing of reproduction might be thought of as less severe than longer ones. See, e.g., Dan W. Brock, Shaping Future Children: Parental Rights and Societal Interests, 13 J. POL. PHIL. 377, 380 (2005);
17. I. Glenn Cohen, The Right Not to Be a Genetic Parent?, 81 S. CAL. L. REV. 1115, 1194 (2008);
18. Daniel Statman, The Right to Parenthood: An Argument for a Narrow Interpretation, 10 ETHICAL PERSP. 224, 227-28 (2003). One could also draw an additional prior distinction between State attempts to influence the reproduction of others (the focus of this Article) versus attempts by other individuals (for example, charities offering voluntary sterilization programs for poor women).
19. See, e.g., LA. REV. STAT. ANN. § 14:78 (2012);
20. MD. CODE ANN., CRIM. LAW § 3-323 (West 2011);
21. NEB. REV. STAT. §§ 28-702, 28-703 (2008);
22. Naomi Cahn, Accidental Incest: Drawing The Line - Or The Curtain? - For Reproductive Technology, 32 HARV. J.L. & GENDER 59, 61, 89 (2009).
23. Jennifer M. Collins et al., Punishing Family Status, 88 B.U. L. REV. 1327, 1391 (2008).
24. E.g., Courtney Megan Cahill, Same-Sex Marriage, Slippery Slope Rhetoric, and the Politics of Disgust: A Critical Perspective on Contemporary Family Discourse and the Incest Taboo, 99 NW. U. L. REV. 1543, 1570 (2005);
25. -42 U.S.C. § 710(b)(2) (2006);
26. BONNIE SCOTT JONES & MICHELLE MOVAHED, AM. CONSTITUTION SOC'Y, LESSON ONE: YOUR GENDER IS YOUR DESTINY - THE CONSTITUTIONALITY OF TEACHING SEX STEREOTYPES IN ABSTINENCE- ONLY PROGRAMS 3-4 (2008), available at http://www.acslaw.org/ files/Jones%20-%20Movahed%20Issue%20Brief.pdf.
27. See, e.g., Patrick F. Fagan, How Broken Families Rob Children of Their Chances for Future Prosperity, HERITAGE FOUND. BACKGROUNDER, June 11, 1999, No. 1283 available at http://www.heritage.org/Research/Family/ BG1283.cfm.
28. E.g., Infertility Treatment Act 1995 (Vic) s 8 (Austl.), available at ;
29. Human Reproductive Technology Act 1991 (WA) ss 4, 23(c) (Austl.), available at http://www .austlii.edu.au/au/legis/wa/consol-act/hrta1991331/ index.html#s23;
30. Reproductive Technology Act 1988 (SA) ss 10(b), 13(3)(b) (Austl.), available at www.legislation.sa.gov.au/LZ/C/A/ ASSISTED%20REPRODUCTIVE%20TREATMENT%20ACT%201988/2000.07.05-(1996.08.01)/1988. 10.PDF;
31. Nomos (2002: 3089) [Medically Assisted Human Reproduction], Official Gazette of the Hellenic Republic 2002, 1:1455 (Greece), available at www.bioethics.gr/media/pdf/biolaw/human/law-3089-en.pdf;
32. DEP'T OF HEALTH, REVIEW OF THE HUMAN FERTILISATION AND EMBRYOLOGY ACT, 2006, Cm. 6989, at 9 (U.K.) available at http://www.dh.gov.uk/prod-consum-dh/ groups/dh-digitalassets/@dh/@en/documents/digitalasset/dh-073065.pdf;
33. Rachel Anne Fenton, Catholic Doctrine Versus Women's Rights: The New Italian Law On Assisted Reproduction, 14 MED. L. REV. 73, 84-89 (2006);
34. Rachel Brehm King, Redefining Motherhood: Discrimination in Legal Parenthood in Japan, 18 PAC. RIM L. & POL'Y J. 189, 214-15 (2009).
35. The HFE Act of 2008 recently liberalized that policy by omitting the words "including the need of that child for a father" after legislators decided that the requirement discriminated against single mothers and lesbians, however the "duty . . . to consider the welfare of the child who may be born as a result of treatment . . . or any other child who may be affected," has been retained. Rachael Dobson, UK Parliament Rejects the 'Need for a Father' in IVF Treatment, PROGRESS EDUC. TRUST, June 3, 2008, available at http://www.ivf.net/ ivf/uk-parliament-rejects-the-need-for-a- father-in-ivf-treatment-o3427.html.
36. At the present moment these bills do not seem to be moving forward. See, e.g., Judith F. Daar, Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms, 23 BERKELEY J. GENDER L. & JUST. 18, 44-46 (2008)
37. citing H.B. 187, 2006 Gen. Assemb., Reg. Sess. (Va. 2006);
38. Mary Beth Schneider, Assisted-Reproduction Bill Dropped, INDIANAPOLIS STAR, Oct. 6, 2005, at B2. U.S. states achieve similar ends through more subtle means such as limiting the enforceability of surrogacy agreements to cases where the commissioning couple is legally married, limiting insurance mandates covering IVF to cases of married heterosexual individuals, and absolving sperm donors of legal parenthood responsibilities only when the recipient is married.
39. E.g., FLA. STAT. ANN. § 742.15(1) (West 2010);
40. TEX. FAM. CODE ANN. § 160.754(b) (West 2008);
41. JESSICA ARONS, CTR. FOR AM. PROGRESS, FUTURE CHOICES: ASSISTED REPRODUCTIVE TECHNOLOGIES AND THE LAW 8 (2007), available at www.americanprogress.org/issues/2007/12/pdf/arons-art.pdf;
42. John A. Robertson, Gay and Lesbian Access to Assisted Reproductive Technology, 55 CASE W. RES. L. REV. 323, 356 (2004).
43. Am. Soc'y for Reprod. Med., Oocyte Donation to Postmenopausal Women, 67 FERTILITY & STERILITY 2S-3S (1997).
44. Michelle Cretella & Den Trumbull, Homosexual Parenting: Is It Time For Change?, AM. C. PEDIATRICIANS, http://www.acpeds.org/homosexual-parenting- is-it-time-for-change.html (last updated Jan. 2012).
45. Radhika Rao, Equal Liberty: Assisted Reproductive Technology and Reproductive Equality, 76 GEO. WASH. L. REV. 1457, 1479 (2008).
46. see also NAOMI R. CAHN, TEST TUBE FAMILIES: WHY THE FERTILITY MARKET NEEDS LEGAL REGULATION 168 (2009) (summarizing the conservative argument that the law should "encourage two parents, one of each sex, for every child").
47. Lynn D. Wardle, Global Perspective on Procreation and Parentage by Assisted Reproduction, 35 CAP. U. L. REV. 413, 444-51 (2006);
48. see also Camille S. Williams, Planned Parent-Deprivation: Not in the Best Interests of the Child, 4 WHITTIER J. CHILD & FAM. ADVOC. 375, 376 (2005) ("[G]iven the importance of shared familial history and kinship to individual identity, and the importance of both maternal and paternal involvement in the development of children, intentionally depriving a child of one parent will surely wound the child in a multitude of ways.").
49. Debora L. Spar, As You Like It: Exploring the Limits of Parental Choice in Assisted Reproduction, 27 LAW & INEQ. 481, 491 (2009).
50. Marsha Garrison, Regulating Reproduction, 76 GEO. WASH. L. REV. 1623, 1627 (2008).
51. see also Marsha Garrison, Law Making for Baby Making: An Interpretive Approach to the Determination of Legal Parentage, 113 HARV. L. REV. 835, 854-59 (2000).
52. See J.A.M. Hunfeld et al., Protect the Child from Being Born: Arguments Against IVF from Heads of the 13 Licensed Dutch Fertility Centres, Ethical and Legal Perspectives, 22 J. REPROD. & INFANT PSYCHOL. 279, 280-88 (2004) (examining arguments in the Netherlands for withholding IVF treatment from special patient groups);
53. Richard F. Storrow, The Bioethics of Prospective Parenthood: In Pursuit of the Proper Standard for Gatekeeping in Infertility Clinics, 28 CARDOZO L. REV. 2283, 2291 (2007) (discussing IVF laws in the Netherlands);
54. Mixed Response to Victoria's Law Change, ABC NEWS (Dec. 5, 2008, 5:44 PM), http://www.abc.net.au/news/2008-12-05/mixed-response-to -victorias-ivf-law-changes/230976 (reporting on Victoria's background-check requirement);
55. Ethics Comm. of the Am. Soc'y for Reprod. Med., Child-Rearing Ability and the Provision of Fertility Services, 82 FERTILITY & STERILITY 564, 565 (2004) (arguing that fertility programs should be permitted to deny fertility services when there is a "substantial basis for such judgments");
56. Judy E. Stern et al., Access to Services at Assisted Reproductive Technology Clinics: A Survey of Policies and Practices, 184 AM. J. OBSTETRICS & GYNECOLOGY 591, 596 (2001) (discussing the policy of some clinics to deny access to patients they think would make problematic parents).
57. See Andrea D. Gurmankin et al., Screening Practices and Beliefs of Assisted Reproductive Technology Programs, 83 FERTILITY & STERILITY 61, 61-65 (2005).
58. See Human Assisted Reproductive Technology Act of 2004 § 4(a), (e) (N.Z.);
59. Ken Daniels & Alison Douglass, Access to Genetic Information by Donor Offspring and Donors: Medicine, Policy and Law in New Zealand, 27 MED. & L. 131, 134 (2008);
60. Christopher De Jonge & Christopher L. R. Barratt, Gamete Donation: A Question of Anonymity, 85 FERTILITY & STERILITY 500, 500 (2006);
61. Michelle Dennison, Revealing Your Sources: The Case For Non- Anonymous Gamete Donation, 21 J.L. & HEALTH 1, 8-10 (2008);
62. Lucy Frith, Gamete Donation and Anonymity: The Ethical and Legal Debate, 16 HUM. REPROD. 818, 818-20 (2001);
63. Ilke Turkmendag et al., The Removal of Donor Anonymity in the UK: The Silencing of Claims by Would-Be Parents, 22 INT'L J.L. POL'Y & FAM. 283, 283-84 (2008);
64. Can You Be Anonymous as a Sperm, Egg or Embryo Donor?, HUM. FERTILISATION & EMBRYOLOGY AUTHORITY, http://www.hfea.gov.uk/1973.html (last visited Jan. 22, 2012).
65. See, e.g., Katharine K. Baker, Bionormativity and the Construction of Parenthood, 42 GA. L. REV. 649, 682-88 (2008);
66. Mary Lyndon Shanley, Collaboration and Commodification in Assisted Procreation: Reflections on an Open Market and Anonymous Donation in Human Sperm and Eggs, 36 LAW & SOC'Y REV. 257, 268 (2002);
67. Ellen Waldman, What Do We Tell the Children, 35 CAP. U. L. REV. 517, 520-32, 533-55 (2006). Of course, the term "donation" is a bit of a misnomer since in almost all instances the individuals are paid. Still, I use "donation" because it is the more common term.
68. See Prohibition of Human Cloning Act 2002 (Cth) s 23 (Austl.);
69. Assisted Human Reproduction Act, S.C. 2004, c. 2, § 7(1) (Can.);
70. HUMAN FERTILISATION & EMBRYOLOGY AUTH., SPERM, EGG AND EMBRYO DONATION (SEED) REPORT 14 (2005) (UK), available at http://www.hfea.gov.uk/docs/ SEEDReport05.pdf;
71. Michelle Bercovici, Biotechnology Beyond the Embryo: Science, Ethics, and Responsible Regulation of Egg Donation to Protect Women's Rights, 29 WOMEN'S RTS. L. REP. 193, 205-06 (2008);
72. Press Release, Human Fertilisation & Embryology Auth., HFEA Confirms UK Position on Payment for Egg Donors (Feb. 25, 2004), available at http://www.hfea.gov.uk/784.html.
73. See D.C. CODE §§ 16-401 to -402 (LexisNexis 2001) (punishing both commercial and altruistic surrogacy);
74. MICH. COMP. LAWS ANN. § 722.859 (West 2002);
75. N.Y. DOM. REL. LAW § 123(1) (McKinney 1999);
76. WASH. REV. CODE ANN. §§ 26.26.210-.260 (West 2005);
77. Infertility Treatment Act 1995 (Vic) s 59 (Austl.);
78. Surrogacy Act 2008 (W. Austl.) pt 2 div 2 ss 8-9 (Austl.);
79. Assisted Human Reproduction Act, S.C. 2004, c. 2, § 6(1) (Can.);
80. Ailis L. Burpee, Note, Momma Drama: A Study of How Canada's National Regulation of Surrogacy Compares to Australia's Independent State Regulation of Surrogacy, 37 GA. J. INT'L & COMP. L. 305, 310-20 (2009).
81. Ruby L. Lee, New Trends in Global Outsourcing of Commercial Surrogacy: A Call for Regulation, 20 HASTINGS WOMEN'S L.J. 275, 287 (2009);
82. See Darra L. Hofman, "Mama's Baby, Daddy's Maybe:" A State-by- State Survey of Surrogacy Laws and Their Disparate Gender Impact, 35 WM. MITCHELL L. REV. 449, 456-59 (2009).
83. Note, The Price of Everything, the Value of Nothing: Reframing the Commodification Debate, 117 HARV. L. REV. 689, 689-90 (2003). I discuss these corruption arguments below under the rubric of Legal Moralism.
84. Martha M. Ertman, What's Wrong With a Parenthood Market? A New and Improved Theory of Commodification, 82 N.C. L. REV. 1, 33 (2003);
85. see also, e.g., Elizabeth S. Anderson, Is Women's Labor a Commodity, 19 PHIL. & PUB. AFF. 71, 75-77 (1990);
86. Kenneth Baum, Golden Eggs: Towards the Rational Regulation of Oocyte Donation, 2001 BYU L. REV. 107, 156.
87. In re Baby M, 537 A.2d 1227, 1248 (N.J. 1988) ("Worst of all, however, is the contract's total disregard of the best interests of the child" in that "[t]here is not the slightest suggestion that any inquiry will be made at any time to determine the fitness of the Sterns as custodial parents, of Mrs. Stern as an adoptive parent, their superiority to Mrs. Whitehead, or the effect on the child of not living with her natural mother").
88. -851 P.2d 776, 783 (Cal. 1993) ("[A]s Professor Shultz recognizes, the interests of children, particularly at the outset of their lives, are '[un]likely to run contrary to those of adults who choose to bring them into being.' Thus, '[h]onoring the plans and expectations of adults who will be responsible for a child's welfare is likely to correlate significantly with positive outcomes for parents and children alike.'"
89. quoting Marjorie Maguire Shultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality, 1990 WIS. L. REV. 297, 397;
90. See, e.g., Richard A. Epstein, Surrogacy: The Case For Full Contractual Enforcement, 81 VA. L. REV. 2305, 2321 (1995);
91. see also Vanessa S. Browne-Barbour, Bartering For Babies: Are Preconception Agreements in the Best Interests of Children?, 26 WHITTIER L. REV. 429, 484 (2004) (arguing that preconception arrangements "constitute baby selling and should be prohibited" due to concern for the welfare of the resulting children).
92. See, e.g., N.H. REV. STAT. ANN. § 168-B:16 to 18 (LexisNexis 2010);
93. UNIF. PARENTAGE ACT, § 803(b)(2) (2000) (amended 2002) (requiring that for judicial pre-approval of a surrogacy agreement, inter alia, "unless waived by the court, the [relevant child-welfare agency] has made a home study of the intended parents and the intended parents meet the standards of suitability applicable to adoptive parents." (alteration in original)).
94. See Cohen, Protecting Patients with Passports: Medical Tourism and the Patient-Protective Argument, 95 IOWA L. REV. 1467, 1523-59 (2010);
95. See, e.g., JOHN RAWLS, POLITICAL LIBERALISM 144 (expanded ed. 2005). Of course, even the command "protect children from harm" may not forge a complete overlapping consensus in that it may require subscription to particular concepts of what constitutes "harm," for example whether being born deaf harms a child or instead enables them to be a participant in deaf culture.
96. See I. Glenn Cohen, Intentional Diminishment, the Non-Identity Problem, and Legal Liability, 60 HASTINGS L.J. 347, 349-50 (2008). But the BIRCapproach, if it were valid, would certainly be able to forge much more of an overlapping consensus than many of the views I canvass below.
97. See, e.g., DOUGLAS E. ABRAMS ET AL., CONTEMPORARY FAMILY LAW 653 (2006)
98. citing MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH-CENTURY AMERICA 241 (1985);
99. Lynne Marie Kohm, Tracing the Foundations of the Best Interests of the Child Standard in American Jurisprudence, 10 J.L. & FAM. STUD. 337, 347-50 (2008).
100. See James G. Dwyer, A Taxonomy of Children's Existing Rights in State Decision Making About Their Relationships, 11 WM. & MARY BILL RTS. J. 845, 907-11 (2003) (collecting statutes).
101. See, e.g., ME. REV. STAT. ANN. tit. 18-A, § 9-308(b) (2002);
102. See Kei Robert Hirasawa, Note, Are Parents Acting in the Best Interests of Their Children When They Make Medical Decisions Based on Their Religious Beliefs?, 44 FAM. CT. REV. 316, 317-24 (2006) (collecting cases and histories);
103. Laura M. Plastine, Comment, "In God We Trust": When Parents Refuse Medical Treatment for Their Children Based Upon Their Sincere Religious Beliefs, 3 SETON HALL CONST. L.J. 123, 142 & n.79 (1993).
104. James G. Dwyer, The Child Protection Pretense: States' Continued Consignment of Newborn Babies to Unfit Parents, 93 MINN. L. REV. 407, 411 (2008).
105. Cf. Dov Fox, The Illiberality of 'Liberal Eugenics', 20 RATIO 1, 5 (2007) (summarizing the argument that the discretion afforded to parents to shape their existing offspring through praise, blame, and other means ought to extend to genetic manipulation).
106. -262 U.S. 390, 401 (1923).
107. -268 U.S. 510, 534-35 (1925).
108. -321 U.S. 158, 165-66 (1944).
109. -406 U.S. 205, 221-22, 230-34 (1972).
110. See, e.g., Helen M. Alvaré, Gonzales v. Carhart: Bringing Abortion Law Back Into the Family Law Fold, 69 MONT. L. REV. 409, 415-16 (2008) (arguing this jurisprudence reflects the Lockean premise that "children are selfevidently vulnerable, particularly relative to adults, and require special solicitude and protection" and that "[p]arents have the first duty and first right to shield their vulnerable children; if they fail, the state may intervene on the children's behalf ").
111. Meyer v. Nebraska, 262 U.S. 390,401-02 (1923).
112. Although the opinion does not cite The Republic, the episode and the quotations can be found in PLATO, THE REPUBLIC bk. 5, at 457-60.
113. -406 U.S. at 230;
114. see also Troxel v. Granville, 530 U.S. 57, 68 (2000) (recognizing that while the state can interfere to protect best interests, there is a "presumption that fit parents act in the best interests of their children");
115. Prince, 321 U.S. at 173, 175 (Murphy, J., dissenting) (accepting that "shielding minors from the evil vicissitudes of early life" is important, but finding that the state's failure to show the "bare possibility that such harms might" occur to the child in this circumstance was insufficient).
116. Yoder, 406 U.S. at 233-34 (emphasis added).
117. DEREK PARFIT, REASONS AND PERSONS 358-59 (rev. ed. 1987);
118. see, e.g., ALLEN BUCHANAN ET AL., FROM CHANCE TO CHOICE: GENETICS AND JUSTICE 224-25 (2000);
119. Dan W. Brock, The Nonidentity Problem and Genetic Harms - The Case of Wrongful Handicaps, 9 BIOETHICS 269 (1995).
120. For an indepth treatment in the context of access to reproductive technologies, see John A. Robertson, Procreative Liberty and Harm to Offspring in Assisted Reproduction, 30 AM. J.L. & MED. 7 (2004).
121. JOEL FEINBERG, HARM TO OTHERS 98-104 (1984);
122. F.M. Kamm, Cloning and Harm to Offspring, 4 N.Y.U. J. LEGIS. & PUB. POL'Y 65, 72 (2000-2001).
123. David Shoemaker, Personal Identity and Ethics, THE STANFORD ENCYCLOPEDIA PHIL. (Edward N. Zalta et al. eds., rev. ed. Mar. 5, 2008), http:// plato.stanford.edu/entries/identity-ethics/.
124. Harold Noonan, Identity, THE STANFORD ENCYCLOPEDIA PHIL. (Edward N. Zalta et al. eds., rev. ed. Nov. 7, 2009), available at http://plato.stanford.edu/ archives/win2009/entries/identity/ ("To say that things are identical is to say that they are the same. 'Identity' and 'sameness' mean the same; their meanings are identical. However, they have more than one meaning. A distinction is customarily drawn between qualitative and numerical identity or sameness. Things with qualitative identity share properties, so things can be more or less qualitatively identical. Poodles and Great Danes are qualitatively identical because they share the property of being a dog, and such properties as go along with that, but two poodles will (very likely) have greater qualitative identity. Numerical identity requires absolute, or total, qualitative identity, and can only hold between a thing and itself.").
125. In a symposium issue in which we participated, Kirsten Smolensky argued that such manipulations never can create Non-Identity Problems, Kirsten Smolensky, Creating Children With Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions, 60 HASTINGS L.J. 299, 331-36 (2008)
126. Judith Jarvis Thomson, A Defense of Abortion, 1 PHIL. & PUB. AFF. 47, 48-49 (1971) (grounding a defense of abortion in the thought experiment of waking up one morning to find a worldfamous violinist connected to your vital organs without your permission).
127. That strand is one way to read the passage in Roe v. Wade noting that "[t]here is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it." 410 U.S. 113, 153 (1973).
128. See, e.g., Camille M. Davidson, Octomom and Multi-Fetal Pregnancies: Why Federal Legislation Should Require Insurers to Cover In Vitro Fertilization, 17 WM. & MARY J. WOMEN & L. 135, 137-38 (2010).
129. -512 N.E.2d 691, 697, 698 (Ill. 1987) (citations omitted).
130. see also, e.g., Nelson v. Krusen, 678 S.W.2d 918, 925 (Tex. 1984) ("Thus, the cause of action unavoidably involves the relative benefits of an impaired life as opposed to no life at all. All courts, even the ones recognizing a cause of action for wrongful life, have admitted that this calculation is impossible. . . . [T]his is not just a case in which the damages evade precise measurement. Here, it is impossible to rationally decide whether the plaintiff has been damaged at all.").
131. Infants with the incurable Lesch-Nyhan syndrome begin (at approximately 6 months of age) a process of neurological and physiological deterioration involving athetosis (involuntary writhing movements), severe mental deficiencies, and a tendency towards compulsive self-mutilation often requiring placing the child's elbows in splints, wrapping her hands in gauze, and sometimes extracting all her teeth. See, e.g., ROBERT F. WEIR, SELECTIVE NONTREATMENT OF HANDICAPPED NEWBORNS 48-49 (1984).
132. Tay-Sachs has its onset in infancy and leads to "progressive retardation in development, paralysis, dementia (mental disorder), blindness, cherry-red retinal spots, and death by age three or four years." 5 ATTORNEYS' TEXTBOOK OF MEDICINE § 17.21(3) (Roscoe N. Gray & Louise J. Gordy eds., 3d ed. 2000).
133. -20 U.S.C. § 1400(d)(1)(A) (2006);
134. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-84 (1982) (identifying the conditions of the Education of the Handicapped Act);
135. Little Rock Sch. Dist. v. Mauney, 183 F.3d 816, 820-21 (8th Cir. 1999) (describing rights under the IDEA).
136. -42 U.S.C. §§ 12131-12132 (2006);
137. see also Tennessee v. Lane, 541 U.S. 509, 513-18 (2004) (discussing the ADA's requirements in this regard and upholding the constitutionality of the ADA against an Eleventh Amendment attack).
138. -42 U.S.C. § 12112(b)(5)(A);
139. see also Sutton v. United Air Lines, Inc., 527 U.S. 471, 477-79 (1999) (describing ADA applicability to private airlines);
140. cf. Eric Rakowski, Who Should Pay for Bad Genes, 90 CALIF. L. REV. 1345, 1382 (2002) ("Defenders of the person-affecting restriction note that many people, including potential parents, siblings, insurers, insurance purchasers, and public officials and the taxpayers they represent, will be worse off if a child is born disabled when a different child might have been born without the disability. Ordinarily, their interests alone will justify spending on preconception or intrauterine screening programs.").
141. -42 U.S.C. § 710(b)(2);
142. According to one facility, the risk of Down syndrome increases from 1 in 952 to 1 in 30 as maternal age increases from 30 to 45 years of age if the patient is using her own eggs, but reduces to the 30 year old risk level if the egg provider is 30 years old. Advanced Maternal Age, CAL. IVF, http://www.californiaivf.com/AMA.htm (last visited Apr. 18, 2012). Thus, older women who reproduce with younger women's eggs do not pose increased risk. Id. If advanced maternal age is also paired with advanced paternal age or there is no supporting father, there is also the possibility of externalized costs in the case of death before the child reaches the age of majority, in which case the child may become a ward of the state, but that is likely in only a very small fraction of cases. Moreover, there will be significant underinclusivity problems in that many parents with shorter than average life expectancies reproduce in ways the law does not seek to prevent.
143. 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) (collecting studies);
144. Holly J. Harlow, Paternalism Without Paternity: Discrimination Against Single Women Seeking Artificial Insemination by Donor, 6 S. CAL. REV. L. & WOMEN'S STUD. 173, 198-203 (1996) (collecting studies).
145. But see Bernard E. Harcourt, The Collapse of the Harm Principle, 90 J. CRIM. L. & CRIMINOLOGY 109, 183 (1999) ("Once non-trivial harm arguments have been made, we inevitably must look beyond the harm principle. We must look beyond the traditional structure of the debate over the legal enforcement of morality. We must access larger debates in ethics, law and politics - debates about power, autonomy, identity, human flourishing, equality, freedom and other interests and values that give meaning to the claim that an identifiable harm matters.").
146. See, e.g., JOHN ROBERTSON, CHILDREN OF CHOICE 16-18 (1994) (adopting a strong view along these lines).
147. Utilitarians typically aggregate small harms to many people and count the sum. See, e.g., JOHN RAWLS, A THEORY OF JUSTICE 23-24 (1971) (discussing the societal balance of present and future gains against present and future losses). The deontologist Frances Kamm has instead suggested that not all harms and benefits are equal, under what she calls the "Principle of Irrelevant Utility": Suppose two almost identical individuals A and B are mortally ill and we have only enough serum to save one, but because of tiny differences in how much serum they need if we save A there will be enough serum left over to also cure person C's sore throat, but if we save B there will not be. Kamm argues that it would be unjust in this circumstance to allocate the serum to A rather than B on this basis as opposed to holding a straight lottery between the two. If the sore throat is not enough to justify giving A preference over B when everything is equal, says Kamm, it is an "irrelevant utility" such that even if we could save not only C's sore throat but a million such sore throats, for example, it would not matter; the utility bonus is irrelevant and therefore even aggregated in large quantities cannot count. Quite different, she claims, would be a case where in fact the serum enables us to save C's leg, which would be a relevant utility.
148. See F.M. KAMM, MORALITY, MORTALITY: DEATH AND WHOM TO SAVE FROM IT 144-63 (1993);
149. Frances M. Kamm, To Whom?, 24 HASTING CTR. REP. 29, 31-32 (1994). On this view, one might also suggest there are irrelevant disutilities, and in our context even if the aggregate of small attenuated cost externalities "add up" to more than the concentrated negative externalities on those whose liberty is restricted by the intervention, those small cost externalities may be as irrelevant as sore throats. Kamm's claim is controversial.
150. For one critique see John Broome, All Goods are Relevant, in SUMMARY MEASURES OF POPULATION HEALTH: CONCEPTS, ETHICS, MEASUREMENT AND APPLICATIONS 727, 727-28 (Christopher J.L. Murray et al. eds., 2002) (suggesting the argument only proves that curing a sore throat does not matter more than fairness in this context, not that curing a sore throat is irrelevant or would never count for anything, and offering as counter example the U.K. Health Services' decision to give out millions of analgesics for headaches that at some level, due to health care rationing and fixed budgets, means that someone's life will not be saved).
151. See Roger Crisp, Equality, Priority, and Compassion, 113 ETHICS 745, 757-63 (2003);
152. Harry Frankfurt, Equality as a Moral Ideal, 98 ETHICS 21, 21- 25 (1987).
153. See, e.g., Leon R. Kass, The Wisdom of Repugnance, in THE ETHICS OF HUMAN CLONING 3, 18-24 (1998).
154. See JOHN STEWART MILL, ON LIBERTY (Albury Castell ed., F.S. Crofts & Co. 1947) (1859).
155. Alicia Keys Biography, BIOGRAPHY CHANNEL, http://www.thebiographychannel. co.uk/biographies/alicia-keys.html (last visited Apr. 18, 2012).
156. Cf. MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALSIM AND EQUALITY 3-10 (1983);
157. Dan W. Brock, Separate Spheres and Indirect Benefits, 1 COST EFFECTIVENESS & RESOURCE ALLOCATION 4 (2003), http://www.resource- allocation.com/content/1/1/4;
158. I. Glenn Cohen, Response: Rethinking Sperm-Donor Anonymity: Of Changed Selves, Nonidentity, and One-Night Stands, 100 GEO. L.J. 431, 441-42 (2012) [hereinafter Cohen, Rethinking Sperm-Donor Anonymity].
159. Julian Savulescu, Procreative Beneficence: Why We Should Select the Best Children, 15 BIOETHICS 413, 418 (2001).
160. John Broome, Should We Value Population?, 13 J. POL. PHIL. 399, 400 (2005). At this juncture it is worth reiterating that here (as throughout the project) I am not claiming that children are harmed if they are not brought into existence. Instead I share with others the view that "no one is harmed in not being created, because there is no one to be harmed if we do not create someone."
161. E.g., LOUIS KAPLOW, THE THEORY OF TAXATION AND PUBLIC ECONOMICS 387-90 (2008);
162. See generally Tornbjörn Tännsjö, Why We Ought to Accept the Repugnant Conclusion, 14 UTILITAS 339 (2002) (arguing the total view and resulting repugnant conclusion is not actually repugnant).
163. In regards to "hybrid" views that apply total utilitarianism when the population is small but average utilitarianism when the population approaches the size of ours, see Philip G. Peters, Implications of the Nonidentity Problem for State Regulation of Reproductive Liberty, in HARMING FUTURE PERSONS 317, 326 (Melinda A. Roberts & David T. Wasserman eds., 2009)
164. citing Thomas Hurka, Value and Population Size, 93 ETHICS 496, 497 (1983), I have argued that any view relying too heavily on average utilitarianism seems problematic in how it identifies what is wrong with reproduction when we believe it to be wrongful.
165. Buck v. Bell, 274 U.S. 200, 205, 207 (1927).
166. If strict scrutiny applied there would be clear problems of underinclusivity hinted at above, cf. Skinner v. Oklahoma, 316 U.S. 535, 541-42 (1942) (stating that Oklahoma's distinction between sterilization of "those who [had] thrice committed grand larceny" and those who had thrice embezzled was constitutionally problematic), as well as overinclusivity problems to the extent there are blanket policies for single and LGBT users rather than individualized parental fitness testing.
167. On the one hand, Holmes' justification in Buck v. Bell that "[it] is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind," 274 U.S. 200, 207 (1927), while never overruled, is so reviled it might be an antiprecedent, rendering problematic the Reproductive Externalities approach by association. On the other hand, perhaps the family privacy cases discussed in Part I might serve as guidepost: only very large externalities or externalized costs relating to the ability of resulting children to don the mantle of citizenship would be compelling, but the State is not free to interfere in order to realize some Platonic or Spartan ideal society. On rational basis review, by contrast, preventing even small, attenuated, or not clearly net negative externalities can count as "legitimate" state interests justifying regulation. Motorcycle helmet laws are a good analogy and have been upheld based on the disability costs born by society of drivers who are injured without helmets.
168. E.g., Picou v. Gillum, 874 F.2d 1519, 1522 (11th Cir. 1989);
169. see also Melissa Neiman, Motorcycle Helmet Laws: The Facts, What Can Be Done to Jump-Start Helmet Use, and Ways to Cap Damages, 11 J. HEALTH CARE L. & POL'Y 215, 236-37 (2008) (listing cases that analogize the "right to choose to wear a helmet to reproductive decisions"). Under- and overinclusivity are not problems on rational basis review.
170. Williamson v. Lee Optical, 348 U.S. 483, 489 (1955) (noting that courts will defer to legislative judgments that "[e]vils in the same field may be of different dimensions and proportions, requiring different remedies. . . . [o]r the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. . . . [or t]he legislature may select one phase of one field and apply a remedy there, neglecting the others").
171. See generally WILLIAM SHAKESPEARE, ROMEO AND JULIET.
172. It would be nice to call this "harmless wrongdoing," but because Feinberg has used this moniker to cover Legal Moralism as discussed below, see generally JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING (1984) (discussing morally wrong conduct that causes no harm or violates no rights), I use this somewhat clunkier term to avoid confusion.
173. JOEL FEINBERG, FREEDOM AND FULFILLMENT: PHILOSOPHICAL ESSAYS 27 (1992).
174. Adam J. Kolber, The Comparative Nature of Punishment, 89 B.U. L. REV. 1565, 1579-81 (2009).
175. Scott Hershovitz, Two Models of Tort (and Takings), 92 VA. L. REV. 1147, 1164-66 (2006).
176. E.g., Stephen Perry, Harm, History, and Counterfactuals, 40 SAN DIEGO L. REV. 1283, 1301-03 (2003).
177. See JESSE DUKEMINIER ET AL., WILLS, TRUSTS, AND ESTATES 519-21 (8th ed. 2009).
178. Even the Louisiana statute allows disinheriting children for just cause. LA. CIV. CODE ANN. art. 1621(A) (2008).
179. See I.R.C. § 1031 (2006). One response Shiffrin might offer is that at least some forms of support actually allow the avoidance/prevention of harm, not the conferral of pure benefit. That response seems inadequate, though, for it only mitigates a harm that was created by the act of procreation, and while one who mitigates some of the harm one has created does better than one who fails to do so, it is hard to see how this completely erases the wrongfulness of doing harm in the first place on Shiffrin's view. This may be why Shiffrin resists committing to the thesis that support can adequately negate the wrongfulness of procreation and the view that procreation is all-things-considered wrong holds some appeal to her.
180. See, e.g., Martha Chamallas, The Architecture of Bias: Deep Structures in Tort Law, 146 U. PA. L. REV. 463, 489-510 (1998) (cataloguing and critiquing this tendency). (Pubitemid 128443669)
181. MODEL PENAL CODE § 3.02(a) (1962).
182. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1092 (1972).
183. -517 U.S. 620, 636-53 (1996) (Scalia, J., dissenting).
184. E.g., Scott Altman, (Com)modifying Experience, 65 S. CAL. L. REV. 293, 294-97 (1991) (expressing a fear that markets may alter our sensibilities in a way that leads us to "regard each other as objects with prices rather than as persons");
185. See PATRICK DEVLIN, Morals and the Criminal Law, in THE ENFORCEMENT OF MORALS 1 (1965);
186. H. L. A. HART, LAW, LIBERTY AND MORALITY 60-61 (1963);
187. see also COMM. ON HOMOSEXUAL OFFENSES AND PROSTITUTION, THE WOLFENDEN REPORT: REPORT OF THE COMMITTEE ON HOMOSEXUAL OFFENSES AND PROSTITUTION (1957) (debating the appropriateness of criminal sanctions for homosexual acts).
188. JAMES FITZJAMES STEPHEN, LIBERTY, EQUALITY, FRATERNITY 135-37 (R.J. White ed., Cambridge Univ. Press 1967) (1873);
189. Ronald Dworkin, Lord Devlin and the Enforcement of Morals, 75 YALE L.J. 986, 986-87 (1966);
190. Robert P. George, Social Cohesion and the Legal Enforcement of Morals: A Reconsideration of the Hart-Devlin Debate, 35 AM. J. JURIS. 15, 19 (1990);
191. Jeffrie G. Murphy, Legal Moralism and Liberalism, 37 ARIZ. L. REV. 73, 76 (1995).
192. -539 U.S. 558, 577 (2003)
193. citing Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting).
194. E.g., Bernard E. Harcourt, Foreword: "You Are Entering a Gay and Lesbian Free Zone": On The Radical Dissents of Justice Scalia and Other (Post-) Queers, 94 J. CRIM. L. & CRIMINOLOGY 503, 503-04 (2004) ("Lawrence v. Texas, will go down in history as a critical turning point in criminal law debates over the proper scope of the penal sanction. For the first time in the history of American criminal law, the United States Supreme Court has declared that a supermajoritarian moral belief does not necessarily provide a rational basis for criminalizing conventionally deviant conduct. The Court's ruling is the coup de grâce to legal moralism administered after a prolonged, brutish, tedious, and debilitating struggle against liberal legalism in its various criminal law representations.");
195. see also Donald L. Beschle, Lawrence Beyond Gay Rights: Taking the Rationality Requirement for Justifying Criminal Statutes Seriously, 53 DRAKE L. REV. 231, 262 (2005);
196. Nan D. Hunter, Living with Lawrence, 88 MINN. L. REV. 1103, 1106 (2004);
197. Eric A. Johnson, Habit and Discernment in Abortion Practice: The Partial-Birth Abortion Ban Act Of 2003 as Morals Legislation, 36 RUTGERS L.J. 549, 604 (2005).
198. Indeed, Justice Kennedy (who authored Lawrence and would be a crucial vote in its extension) dissented in Stenberg v. Carhart a mere three years before Lawrence, regarding Nebraska's partial-birth abortion statute, and relied on Legal Moralistic ideas (or at least ideas very close to it) to justify criminalizing partial birth abortions but not others, suggesting his rejection of Legal Moralism may be fickle. See Stenberg v. Carhart, 530 U.S. 914, 963 (2000) (Kennedy, J., dissenting) ("D & X's stronger resemblance to infanticide means Nebraska could conclude the procedure presents a greater risk of disrespect for life and a consequent greater risk to the profession and society, which depend for their sustenance upon reciprocal recognition of dignity and respect.").
199. See Harris v. McRae, 448 U.S. 297, 315 (1980).
200. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985).
201. See, e.g., Lawrence B. Solum, Natural Justice, 51 AM. J. JURIS. 65, 65- 76 (2006);
202. Rosalind Hursthouse, Virtue Ethics, THE STANFORD ENCYCLOPEDIA PHIL. (Edward N. Zalta et al. eds., rev. July 18, 2007), http://plato.stanford.edu/ entries/ethics-virtue/.
203. See MICHAEL J. SANDEL, THE CASE AGAINST PERFECTION: ETHICS IN THE AGE OF GENETIC ENGINEERING 45-56 (2007).
204. R. McDougall, Acting Unparentally: An Argument Against Sex Selection, 31 J. MED. ETHICS 601, 603 (2005).
205. Lawrence B. Solum, Virtue Jurisprudence: A Virtue-Centered Theory of Judging, 34 METAPHIL. 178, 180-81 (2003) (reviewing articles applying Virtue Ethics to, inter alia, antitrust, civil rights, corporate, criminal, employment, and environmental law, as well as offering a Virtue Ethics take on judging).
206. See Kyron Huigens, Virtue and Inculpation, 108 HARV. L. REV. 1423, 1423-44 (1995);
207. see also Darryl K. Brown, Cost-Benefit Analysis in Criminal Law, 92 CALIF. L. REV. 323, 364 (2004) ("In judging criminal conduct, virtue ethics judges the defendant's exercise of practical judgment, and thereby his character.").
208. Among the complications is that while the virtueless action may be harmless in our cases (due to Non-Identity Problem reasons), unless the character of the parent is reformed by deployment of the law, that same character may actually yield activities contrary to human flourishing in other contexts where harm is possible. There is also an open question of whether a Virtue Ethics justification is constitutionally appropriate for criminal law interventions after Lawrence. Some passages in that opinion seem to inter only Legal Moralism, while others seem to reach further. Compare Lawrence v. Texas, 539 U.S. 558, 577-58 (2003)