Contracting Our Way to Inequality: Race, Reproductive Freedom and the Quest for the Perfect Child
60 Pages Posted: 26 Feb 2020
Date Written: December 15, 2018
This article asks a central fundamental question: why does a society ostensibly committed to racial equality allow players in the assisted reproductive technology market (“ART market”) to buy and sell race? As consumers in the ART market well know, human gametes (both eggs and sperm) are packaged, marketed and sometimes priced based on race. The role these market practices play in naturalizing segregation and promoting racial inequality have been recognized, but curiously there has been no will generated to address this commercial practice head on. My article explores the cultural and regulatory impasse that must be overcome to address this racial phenomenon. Part I of the article probes the racial categorization practices currently used in the ART market to provide a better account of what is actually being exchanged when parties purport to sell racially marked ova and sperm. After exploring the high risk of fraud, confusion and potentially misleading speech, the article demonstrates how gamete banks’ current racial categorization practices could thrust courts back into discredited, antiquated legal arguments about racial purity and racial fraud. Part II probes customer preference claims about race to determine what it is consumers believe they are buying when they purchase race in the ART market. Close examination of customers’ arguments reveals the residual influence of anti-miscegenation norms, regressive femininity and masculinity constructs and a desire to outsource the challenges associated with achieving racial equality. Parts III of the discussion asks whether our 14th Amendment racial equality guarantees require government to wholly prohibit ART exchanges based on race, as well as the likely resistance regulators will face based on reproductive freedom concerns. Part IV concludes by exploring First Amendment considerations, specifically, whether government speech doctrine allows states to combat regressive ART messages based on race, or whether commercial speech limitations could be used to limit ART marketers’ more destructive race-based messages.
Keywords: race, ART, reproductive rights, equal protection, commercial speech
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