The Regulation of Reproduction and Best Interests Analysis

The Oxford Handbook of Children and the Law (James G. Dwyer, ed. OUP, 2019)

Harvard Public Law Working Paper No. 19-14

45 Pages Posted: 5 Apr 2019 Last revised: 11 Jul 2019

Date Written: March 12, 2019

Abstract

In its 1972 decision in Eisenstadt v. Baird, the US Supreme Court announced that: “it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” But, in fact, both within and outside the United States, this firm-sounding principle has often been honored in the breach. Both as to coital and assisted reproduction, but particularly the latter, the state has asserted significant control over reproductive decision-making. This chapter details various forms of reproductive regulation prevalent today in a variety of areas including: Sterilization, abstinence education, surrogacy, sperm and egg “donor” anonymity and paternity, insurance funding, cloning, and mitochondrial replacement therapy. More conceptually, it divides state regulation of reproduction along the axes of attempts to influence whether, when, with whom, and how we reproduce and the means by which the state intervenes. Finally, it examines variations on child welfare justifications the state has or might offer for such reproductive regulation, and raises some questions about those justifications.

Keywords: reproductive technology, law, sterilization, abstinence education, surrogacy, sperm donation, egg donation, donor anonymity, parentage, insurance, cloning, family law, mitochondrial replacement therapy

JEL Classification: I100, I1, I10, I11, I14, I18, I31, K11, K13, K20, K32

Suggested Citation

Cohen, I. Glenn, The Regulation of Reproduction and Best Interests Analysis (March 12, 2019). The Oxford Handbook of Children and the Law (James G. Dwyer, ed. OUP, 2019); Harvard Public Law Working Paper No. 19-14. Available at SSRN: https://ssrn.com/abstract=3351219

I. Glenn Cohen (Contact Author)

Harvard Law School ( email )

1525 Massachusetts Avenue
Griswold Hall 503
Cambridge, 02138
United States

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