Burying Best Interests of the Resulting Child: A Response to Professors Crawford, Alvaré, and Mutcherson

Abstract

In Regulating Reproduction: The Problem with Best Interests, 96 Minn. L. Rev. 423 (2011), http://ssrn.com/abstract=1955292, and its companion paper Beyond Best Interests, 96 Minn. L. Rev. 1187 (2012), http://ssrn.com/abstract=2014069, I argue that a large swath of reproductive regulation in place across the world -- 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, and others -- cannot be justified in the way legislatures, courts, and commentators have tried to do so. They have repeatedly appealed to a justificatory idiom 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. Not only does BIRC fail, I argue, but a series of attempts at reformulating the justification or substituting other justifications for it (e.g., non-person-affecting principles, lives not worth living, wronging while overall benefiting, virtue ethics, etc) run into serious difficulties as well.

Three of my colleagues have graciously responded to these articles as part of the Minnesota Law Review Headnotes Online Forum: Bridget J. Crawford, "Authentic Reproductive Regulation," http://ssrn.com/abstract=1960590, Helen M. Alvaré, "A Response to Professor I. Glenn Cohen’s 'Regulating Reproduction: The Problem with Best Interests," http://ssrn.com/abstract=2141406, and Kimberly Mutcherson, "In Defense of Future Children: A Response to Cohen’s Beyond Best Interests" http://ssrn.com/abstract=2115756.

In this article, "Burying Best Interests of the Resulting Child: A Response to Professors Crawford, Alvaré, and Mutcherson," I reply to them, mapping where we agree, expressing what I admire in their work, and explaining why in the areas where we disagree I am not persuaded by the arguments and think I am right (but of course I WOULD think that....).

Keywords: philosophy, bioethics, reproductive technology, IVF, tax, family law, regulation, surrogacy, sperm donation