Assisted Reproductive Equality: An Institutional Analysis

Abstract

Should the constitutional right to procreative liberty extend to assisted reproductive technologies? Unlike most commentators to address this question, Radhika Rao appreciates that the answer turns not only on constitutional values but also on the competence of the institutions called upon to carry those values into effect. On that basis, she urges courts to focus on reproductive equality rather than recognizing a broad liberty right or leaving the regulation of assisted reproductive technologies wholly to an unsupervised political process. This brief symposium essay assesses the institutional promise and limitations of Rao’s reproductive equality approach. A broader takeaway is that comparative institutional analysis is both necessary to sound constitutional reasoning and more complex than many otherwise able constitutional analysts have appreciated. This paper is a companion piece to Andrew Coan, The Future of Reproductive Freedom, also available on SSRN.

Keywords: Assisted Reproductive Technologies, Equal Protection, Due Process, Procreative Liberty, Reproductive Liberty, Reproductive Freedom, Institutional Choice, Institutional Analysis