88 Pages Posted: 7 Mar 2012 Last revised: 22 Aug 2012
Date Written: March 1, 2012
As Justice Douglas wrote in Skinner v. Oklahoma, procreation is one of the “basic civil rights of man.” Along with marriage it is “fundamental to the very existence and survival of the race” and the state’s interference with it “threatens to have subtle, far-reaching and devastating effects.” And yet the U.S. and other countries regulate a wide range of reproductive activities such as forbidding anonymous sperm donation, funding abstinence education, criminalizing brother-sister incest, preventing the sale of sperm or eggs or surrogacy services, and forbidding single individuals from accessing reproductive technologies. In justifying these and other regulations of reproduction legislatures, courts, and commentators have relied (at least in part) on an idiom that I call Best Interests of the Resulting Child (BIRC) as a justification, which focuses on the best interests of the child who will (absent state intervention) result from these forms of reproduction.
My goal in this Article and its companion paper Regulating Reproduction: the Problem with Best Interests, 96 Minn. L. Rev. 423 (2011), http://ssrn.com/abstract=1955292 is to reveal and delve into the secret ambition of best interests (sometimes called child welfare or child-protective) discourse in the regulation of reproduction. By discussing best interests in this context, the party proposing reproductive regulation is able to avoid charged and heated political disagreements by offering a palatable idiom on which multiple political theories can converge. After all, who is in favor of allowing harm to society’s most vulnerable?
While palatable, however, I show that this justification is vacuous and pernicious. I draw on insights from bioethics, philosophy of identity, and doctrinal rejections of wrongful life tort liability to show why BIRC justifications are vacuous: Unless the state’s failure to intervene foists on 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.
BIRC reasoning is pernicious because it masks the true justifications that undergird these regulations of reproduction. It offers a way of talking about the regulation of reproduction that avoids confrontation with justifications that are disturbing, controversial, and/or illiberal; approaches that may justify eugenics, mandatory enhancement, or other problematic ideas. My goal in this Article is to force that confrontation and to evaluate the plausibility of these substitute justifications once exposed.
In this part of the project, I focus on four justifications that might be thought of as substitutes for BIRC. First, Reproductive Externalities, wherein the regulation of reproduction is justified not as the prevention of harm to the resulting child (the BIRC justification) but based on the costs that reproduction imposes on third parties. Second, Wronging while Overall Benefiting, where the fact that harm is done to provide an overall benefit is insufficient to save the act from being wrongful. Third, Legal Moralist approaches, which seek to use the criminal law or other regulatory tools to deter acts that neither harm nor offend but undermine public morality in order to maintain traditional ways of life. Finally, Virtue Ethics approaches, which focus on encouraging parental virtue as the basis for intervention. I consider the sufficiency of each in turn as a substitute for BIRC and the pattern of reproductive regulation they would permit.
I show that each substitute approach runs into serious problems. While I find the Reproductive Externalities approach the most promising, I show that when properly understood even this approach can justify only a much narrower swath of regulation of reproduction than currently exists, such that much of the existing law in this area cannot be justified.
Those who are interested in the project, might also find interesting two related articles I have written: 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
Keywords: reproduction, bioethics, family law, philosophy, legal moralism, virtue ethics, deontology, externalities, anonymous sperm donation, incest, abstinence, single-parents, reproductive technologies, surrogacy
Suggested Citation: Suggested Citation
Cohen, I. Glenn, Beyond Best Interests (March 1, 2012). Minnesota Law Review, Vol. 96, p. 1187, 2012; Harvard Public Law Working Paper No. 12-09. Available at SSRN: https://ssrn.com/abstract=2014069
By Mark Tushnet
By G. V. Nath