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Abstract:
Few principles are as universally accepted in legal scholarship today, but based on such scant support, as the fundamental nature and broad scope of the right to procreate. What is perceived as a vague but nonetheless justified legal and moral interest to procreate freely without regard to others is, upon closer examination, based on little more than misconstrued or inapposite case precedent and blurry statements in non-binding sources of international law. By relying on this authority, conflating procreation with conceptually distinguishable behaviors, presuming its intrinsic value, and ignoring competing rights and duties, lawyers have largely overlooked procreation and its legal and normative limits. Interpreting U.S. constitutional and international law sources, and finally employing Locke's model of natural rights, this Article redefines the right in law and practice as satiable and narrow, acknowledging the competing rights and duties that both qualify and justify the right. It posits that the procreative right, properly stated, includes at least the act of replacing oneself and at most procreation up to a point that optimizes the public good.

procreate, procreation, reproduce, reproductive, rights, human rights, Locke, population

Abstract:
While ethicists have delved deep into the rights and wrongs of procreating, lawyers have had little to say about the matter, stymied by practical concerns, the tendency of the law to ignore prospective children and their interests, and the misperception that a fundamental rights boundary absolutely forbids state intervention. But recently a small door has opened in this wall between law and ethics: as courts faced with having to repeatedly remove abused and neglected children from parents adjudged unfit have issued temporary no-procreation orders. As precedent builds and the possibility of ex ante regulation of procreation and parenthood grows, a moral and legal debate is developing over what duties prospective parents owe their future children and the society with which those children will interact. But increasingly the debate is a muddle of inapposite and conflicting state probation and constitutional law in search of statutory guidance. This Article attempts to cut through it, and to state the intermediate-level principle at its core:

A prospective parent has a moral and legal duty to be fit when he or she has a child, one arising from or creating correlative claim-rights shared by the state and prospective children, and a prospective parent has no liberty to have a child until he or she is fit.

The Article then argues for codification of this principle, to be applied in cases of recurring child abuse and neglect.

procreation, reproduction, reproductive rights, children, child welfare, child abuse, child negelct, future persons

Abstract:
In our conception of law we have largely presumed the process by which the people whose behavior the law is meant to regulate come to be present and susceptible to the law's influence. As a result, that process is largely outside of our account of the law, and any role the law might have over the matter is relatively ignored. This article introduces a simple and concrete conceptual device, a form of law called antecedent law, which seeks to undo this presumption and refocus our attention on that which can determine the presence of persons in the polity and their susceptibility to law. This article introduces the form antecedent law, describes its role in recreating the polity, begins to identify and advocate for a substantive content for the form - specifically one that maximizes what Joseph Raz has called valuable autonomy - and finally touches on three potential counterarguments, which would reject the form and its contents. In less abstract terms this article invites us to change the way we think about seemingly disparate issues like procreation, immigration, and education, and to reconsider their relation to law and the uniquely compelling common interests we and future generations have in them.

Legal theory, constitutional law, reproductive rights, population, immigration, education

Abstract:
Are there objective values on which to base the claim of a right to procreate? Can we articulate reasons for having children so powerful that they justify our doing so, as a matter of right, even where it would conflict with the interests and values of others? This Article systematically and critically examines many of the values that, before now, courts and commentators have simply presumed and relied upon when making the claim that there is and ought to be a fundamental right to have children. This Article first develops a methodology for examining the values and interests on which fundamental moral, and eventually legal, rights might be based. It then applies this methodology to three categories of values specific to procreation: autonomy and relational values, as well as self-regarding values, such as the value of creating genetic lineage. This Article then critiques each category as a basis for a right to procreate, rejecting autonomy and relational values, and ending with what might be a surprising conclusion about the final category: that self-regarding values, and the right that would flow from them, are sated when one has a child.

reproductive rights, procreation, children, family law, rights, legal theory, right to procreate, value theory, bioethics

Abstract:
This Article addresses the novel question of whether states parties can successfully implement the Children’s Rights Convention by placing legal obligations on prospective parents, thereby influencing not just a child’s environment, but also the procreation of that child. First, the Article takes a unique version of the child-centered perspective, one that recognizes that as we move back in time in the direction of and even before a child’s birth, our obligations to the child grow because our actions become ever more influential. The perspective also takes into account current moral theories of parental obligation to prospective children. The Article then interprets the Convention from this perspective, exploring whether it requires states to pursue policies that heighten prospective parents’ perceptions of the duties they owe their prospective children before having them.

If the Convention represents a sea change in the international legal community’s thinking about the relationship between children and adults, it has also inadvertently initiated another sea change: altering the traditional relationship between prospective parents and their prospective children, and with it the right to procreate.

international law, public international law, children's rights convention, children's rights, CRC, reproductive rights, procreation, right to procreate, child welfare

Abstract:
Between Skinner v. Oklahoma and the advent of modern substantive due process, procreation, at least in the eyes of many courts and commentators, became entrenched as a fundamental, if not absolute, right. And yet ironically, the establishment of this right, often taken as symbolic of personal liberty, has diminished autonomy for those persons inevitably caught on the other end of it - our future children. Much like a seesaw, expanding prospective parental autonomy has diminished public norms that might otherwise ensure that future children are born into circumstances that also expand their autonomy. Instead, it leaves the matter exclusively, and privately, to the whims of their prospective parents. This result tends to institutionalize the classification of a group of persons, albeit future persons, as property. This Essay thus maintains that the most common conception of the right to procreate, the one derived from constitutional precedent and taken as beyond question, tends to treat future children largely as a class of property, assigned as such to prospective parents. This Essay also traces the historical development of the right as part of the larger tradition of treating existing children as the property of those who create them. Throughout, this Essay suggests that the right to procreate so conceived is in tension with an imbedded constitutional principle that prohibits one class of persons from treating another as property.

procrate, prcreative, reproduce, reproductive, constitutional law, property, children, future persons, future generations

Abstract:
In light of the fact that today's consumers often want their products to be created in the most environmentally, globally, and animal friendly ways possible, unethical sellers sometimes succumb to the incentive to persuade consumers that goods were created more ethically than they actually were. False advertising law represents a rare, albeit roundabout, legal opening for animal advocates to deal with issues of animal mistreatment, regardless of legislative and executive branch disregard of the importance of animal protection. Whether there is a beneficial change in the law or not, current opportunities in the market for these cases should be sought out and exploited, if only to protect the ground animal advocates have gained in the battle for consumer opinion. This article investigates the ways that consumers can protect themselves from false advertising through the use of federal and state agencies, independent review, federal and state courts, and private attorneys general actions.

animal, false advertising, consumer protection