Future Children as Property

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.

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

Accepted Paper Series