The Constitution and the Rights Not to Procreate
63 Pages Posted: 2 Apr 2008 Last revised: 30 Mar 2010
Does the Federal Constitution protect a right not to procreate, and what does that mean? Modern reproductive technology has made this question both more salient and more problematic. For example, a number of courts and commentators have assumed the existence of a federal constitutional right not to procreate and relied on it to resolve disputes over stored frozen preembryos that couples have fertilized in the course of in vitro fertilization (IVF).
In this Article, I challenge that assumption. I argue that these authorities err by relying on a monolithic conception of the right not to procreate. I instead contend that the right is best conceived as a bundle of rights containing three possible sticks: the right not to be a genetic parent, the right not to be a legal parent, and the right not to be a gestational parent. Using this framework, I show that while the Supreme Court's jurisprudence unquestionably protects a right not to be a gestational parent as a fundamental right, it does not compel recognizing a right not to be a genetic parent, when genetic parenthood is unbundled from the obligations of legal and gestational parenthood. I also examine three other challenges to the Court's and commentators' constitutional claim. First, I suggest that even if there is a fundamental right not to be a genetic parent, infringement thereof might survive constitutional scrutiny under the appropriate standard of review. Second, I argue that there is no state action in preembryo disputes and others like them, such that the Constitution is not implicated at all. And finally, I argue that the asserted constitutional right not to be a genetic parent may be subject to advance waiver, as are many other constitutional rights.
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