Reproducing Race

Chapter in Beyond Bioethics: Toward a New Biopolitics (Marcy Darnovsky & Osagie Obasogie eds. 2016).

San Diego Legal Studies Paper No. 17-264

4 Pages Posted: 27 Feb 2017 Last revised: 10 Mar 2017

Dov Fox

University of San Diego: School of Law

Date Written: February 23, 2017

Abstract

A white lesbian mom recently sued a sperm bank for “wrongful birth“ after it sent her a sample from a black donor instead of from the white one she chose. Race matters, she argues, because she and her white partner lack the “cultural competency” to help their child, whose physical features are “typical of an African American girl,” to navigate the challenges of racial bias and residential segregation in her “all-white community” and “often unconsciously insensitive family.”

It isn't hard to sympathize with parents’ hopes to spare their future child racial taunts or confused identity. Yet it is troubling for donor services to accentuate race in ways that invite parents to exclude wholesale from their consideration all donors of a particular race.

A 1964 Supreme Court case called Anderson v. Martin illustrates the moral problem. That decision struck down a Louisiana law requiring that each candidate’s race be printed next to his name on the ballot. Racial labels are unconstitutional, a unanimous court held, not only because they “arouse” racial prejudice in democratic participation. It’s also that they express a judgment that “a candidate’s race or color is an important — perhaps paramount — consideration” in how people should vote.

Sorting donors by race is similar. It sends the message that race deserves a prized place in family formation. Racial salience should be resisted, in reproduction as in elections, because placing donor front and center expresses the problematic idea that single-race families should be preferred to multiracial ones and that families should be set apart by race. Of course, sperm banks and egg vendors are not held to the same legal standards as government. But private actors can exercise state-like influence when they control the tools of decision making through the power of commercial markets and the prestige of the medical profession.

That’s not to say donor race should be withheld altogether — like symphony orchestras that audition aspiring members from behind screens. This norm of racial indifference rings false in view of parents’ valid interests in decisional autonomy, reproductive privacy and racial expression. But sperm banks and egg vendors shouldn’t prime parents to think about a future child in racial terms. It’s OK to identify race alongside other traits as long as donors aren’t singled out that way. To find a donor of a particular race, on this approach, parents couldn’t just flip to this section of the catalog or click on that quick-search button. They’d have to look at donors one by one.

Keywords: race, donor selection, assisted reproduction, antidiscrimination law and theory

Suggested Citation

Fox, Dov, Reproducing Race (February 23, 2017). Chapter in Beyond Bioethics: Toward a New Biopolitics (Marcy Darnovsky & Osagie Obasogie eds. 2016).; San Diego Legal Studies Paper No. 17-264. Available at SSRN: https://ssrn.com/abstract=2922826

Dov Fox (Contact Author)

University of San Diego: School of Law ( email )

5998 Alcalá Park
San Diego, CA 92110
United States
(619) 260-4600 (Phone)

HOME PAGE: http://www.sandiego.edu/law/news/news_releases/newslist.php?_focus=44957

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