14 Pages Posted: 28 May 2010 Last revised: 3 Aug 2012
Date Written: February 26, 2010
This Article reflects remarks presented at a symposium on "Regulating Reproductive Technologies" at Hastings College of Law. My topic was the practice by which sperm banks separate donor catalogs according to race. We should care about the race-conscious design of decisionmaking frameworks like donor catalogs, dating websites, and election ballots because the reinscription of race within meaningful spheres of life such as politics, romance, and reproduction can reify or reconstitute the racially-defined ways in which we understand ourselves and relate to others. I argue that different means of racial disclosure can communicate more or less acceptable ideas about the role that race should play in the decisions that parents make about what kind of child to have.
There is a spectrum of salience-varying approaches that sperm banks could adopt to manage information about donor race. I consider four: race-indifferent, race-sensitive, race-attentive, and race-exclusive. Race-indifferent means of disclosure withhold the racial identity of donors altogether. Race-sensitive means, by contrast, identify racial background as one donor characteristic alongside others, thus enabling prospective parents to choose a sperm donor on racial grounds, but only if they scroll through the catalog and at least glance at each donor profile one by one. A race-attentive approach does not just reveal race but places emphasis on it, by designing donor catalogs and online search functions in ways that make it easy for prospective parents, if they wish, to view just donors of a certain race, or to omit donors of another. Race-exclusive means differentiate donors by racial information only, thus according race a presumptively decisive role in customers’ decisions about which sperm donor to choose.
I argue that the race-attentive partitioning of donor catalogs along racial lines is a pernicious practice that we should resist, for two reasons. First, it sends a message that prospective parents should select donors on the basis of race; second, it credentializes the assumption that single-race families are preferable to multiracial ones. The close analogy to dating websites gives reason for skepticism. If people should have access to dating services that facilitate partner searches with an eye to race, why not to provide the same measure of assistance to infertile heterosexual couples, lesbian couples, and single parents seeking to find a sperm donor of a particular race? What’s present in the romantic matching context that’s missing in the reproductive matching context is meaningful interface between the parties on either side of the exchange. There are, as a result, lesser relational autonomy interests at stake in assisted reproduction.
Keywords: assisted reproduction, anti-discrimination law, private race-based decisionmaking
JEL Classification: K39, J12, J13, J71, J78, D72, O33, O38
Suggested Citation: Suggested Citation
Fox, Dov, Choosing Your Child's Race (February 26, 2010). 22 HASTINGS WOMEN’S L.J. 3 (2010). Available at SSRN: https://ssrn.com/abstract=1617388