Kimberly M. Mutcherson
Rutgers School of Law-Camden
January 1, 2013
The Journal of Gender, Race & Justice, Vol. 16, No. 1, Winter 2013
This Article focuses on unearthing the substantial common ground between those who primarily see great risk in the use of baby making technology and those who primarily see reward from that technology. It forwards a narrative of assisted reproduction as transformation rather than oppression by focusing on how non-coital reproduction literally and figuratively changes what it means to procreate. With this commitment in mind, this Article considers how to understand and evaluate the interests of a diverse group of individuals seeking parenthood with the assistance of technology. Specifically, it focuses on marginalized populations, primarily people of color, lesbians, and gay men, using assisted reproductive technology ("ART"), and contemplates what the law and lawmakers might owe to people who seek parenthood through ART.
This Article makes four primary claims described in Part I. First, the best paradigm for considering how to regulate the fertility industry is through a focus on justice rather than on rights. Second, the justice lens demands a more complex analysis of race, class, gender, sexual orientation, and other categories of difference that matter in the ways that law and society value procreative and family-building choices. Third, viewing ART with an eye toward justice and its accompanying appreciation for the complexities of identity makes it harder to differentiate between the exploiters and exploited in the ART market. Fourth, and finally, the multi-layered nature of ART gives this technology tremendous potential to transform dominant hierarchies of family life that work against many would-be parents.
Part II discusses the persistence of reproductive hierarchies and the ways in which such hierarchies are reinforced by the language used to talk about access to reproduction. This part reflects on the use of rights and justice, specifically reproductive justice (RJ), as frameworks for considering issues related to procreation. It concludes that justice is the most appropriate lens through which to consider the relationship between ART and the law. Part III describes how a justice lens exposes ways that ART transforms family and reproduction in positive ways. It then details ways that ART use can also increase reproductive oppression in the fertility industry and considers the importance of outsider stories of ART for a justice analysis.
Part IV brings together the positive and negative discussions of ART in Part III by reconciling various elements of the fertility market. It then explains why a justice lens allows for the richest discussion of the many layers of ART and why such a lens helps expose the broad and diverse constituencies impacted by ART. This part concludes that considerations of justice are necessary to ensure that the pursuit of rights is done with integrity. Part V considers some of the practical realities in legislation and policy-making affecting ART.
Number of Pages in PDF File: 48
Keywords: reproductive justice, assisted reproduction
Date posted: August 21, 2013