Regulating Reproduction: The Problem with Best Interests
I. Glenn Cohen
Harvard Law School
November 5, 2011
Minnesota Law Review, Vol. 96, p. 423, 2012
Should the state permit anonymous sperm donation? Should brother-sister incest between adults be made criminal? Should individuals over the age of fifty be allowed access to re-productive technologies? Should the state fund abstinence education?
One common form of justification that is offered to answer these and a myriad of other reproductive policy questions is concern for the best interests of the children that will result, absent state intervention, from these forms of reproduction. This focus on the Best Interests of the Resulting Child (BIRC) is, on the surface, quite understandable and stems from a transposition of a central organizing principle of family law justifying state intervention - the protection of the best interests of existing children - visible in areas such as adoption, child custody, and child removal. The Article demonstrates that while parallel reasoning is frequently offered (by legislatures, by courts, by commentators, by physicians) to justify state interventions that seek to influence whether, when, and with whom individuals reproduce, such justifications are problematic and misleading. The Article’s aim is nothing short of re-writing our way of thinking about the regulation of reproduction.
Drawing on insights from bioethics and the philosophy of identity, the Article shows why the BIRC justification, at least stated as such, is problematic both as a normative and constitutional matter: unless the state’s failure to intervene would foist upon the child a “life not worth living,” any attempt to alter whether, when, or with whom an individual reproduces cannot be justified on the basis that harm will come to the resulting child, since but for that intervention the child would not exist. Nevertheless, the Article shows that BIRC arguments are frequently relied upon by courts, legislatures, and scholars to justify these interventions. At a doctrinal level the Article also shows that this reliance on BIRC justifications is in tension with the implicit rejection of similar reasoning by courts unwilling to recognize wrongful life torts.
After demonstrating why the BIRC argument is unworkable as stated, the Article considers three possible reformulations of the argument that would save it, including one that focuses on population welfare. It explains why none of these approaches is persuasive, including by discussing their disturbing implications as to enhancement and eugenics. The Article also briefly discusses how this analysis bears on the constitutionality of these interventions.
Once the BIRC justification and its reformulations are shown to be problematic, it becomes apparent that either these forms of reproductive regulation are unjustified or quite different sorts of justifications must be relied on. I briefly plot three such theories, each of which depends on more controversial ideas that the label of “best interests” obfuscates. These theories are examined in-depth in a companion article, Beyond Best Interests, which appears in the April 2012 issue of the Minnesota Law Review and will be uploaded to SSRN soon.
There are also two related papers: Rethinking Sperm-Donor Anonymity: Of Changed Selves, Non-Identity, and One-Night Stands, 100 Georgetown Law Review, Vol. 100, 2012, available at http://ssrn.com/abstract=1961605 and Intentional Diminishment, the Non-Identity Problem, and Legal Liability, Hastings Law Journal, Vol. 60, 2008, available at http://ssrn.com/abstract=1330504.
Number of Pages in PDF File: 97Accepted Paper Series
Date posted: November 7, 2011 ; Last revised: January 20, 2012
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