Privatizing Procreative Liberty in the Shadow of Eugenics

Journal of Law and the Biosciences, 2018 Forthcoming

San Diego Legal Studies Paper No. 18-351

19 Pages Posted: 11 Jul 2018  

Dov Fox

University of San Diego: School of Law

Date Written: 2018

Abstract

John Robertson is renowned for the theory of ‘procreative liberty’ that he expounded in his pioneering book, Children of Choice. Procreative liberty captures the ‘freedom to reproduce without sex’ above and beyond the ‘freedom to have sex without reproduction’ that are recognized by constitutional rights to abortion and birth control. Most controversial among Robertson's work on procreative liberty was its application to prenatal selection. Unless the state had very good reasons, he argued, people should be free to access reproductive medicine or technology to have a child who or would be born with particular traits. Prospective parents in the USA today face no official limits in using sperm banks, egg vendors, IVF clinics, or surrogacy agencies with an eye toward choosing for certain characteristics. But should they be protected, this essay asks, when mix-ups or misdiagnoses thwart the selection of offspring traits? The best answer to this question extends the theory of procreative liberty from government restrictions to professional negligence. It also demands sensitivity to genetic uncertainty, the limits of private law, and the history of eugenics in America.

Keywords: John Robertson, procreative liberty, prenatal selection, eugenics

JEL Classification: A00, A10, K10

Suggested Citation

Fox, Dov, Privatizing Procreative Liberty in the Shadow of Eugenics (2018). Journal of Law and the Biosciences, 2018 Forthcoming; San Diego Legal Studies Paper No. 18-351. Available at SSRN: https://ssrn.com/abstract=3210970

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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