The Constitution and the rights not to procreate.

Stanford Law ReviewVol. 60 Nbr. 4, February 2008

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The Constitution and the rights not to procreate.

INTRODUCTION I. BACKGROUND A. Unbundling the Rights Not to Procreate 1. The rights introduced 2. Conflict 3. Waiver and against whom? B. The "Naked" Right Not to Be a Genetic Parent, Prior-Consent and No-Consent Cases II. Is THERE A FUNDAMENTAL CONSTITUTIONAL RIGHT NOT TO BE A GENETIC PARENT? A. The Argument 1. The contraception cases 2. The abortion cases a. Neither the language nor the holdings of the abortion cases compel recognition of the right not to be a genetic parent b. Is recognizing a right not to be a genetic parent incompatible with the abortion cases? B. Evaluating the Strategy III. COULD ANY INFRINGEMENT SURVIVE CONSTITUTIONAL SCRUTINY? A. The Argument B. Evaluating the Strategy IV. Is THERE STATE ACTION? A. The Argument 1. Enforcing disposition (and other reproductive) agreements 2. In the no-prior-consent cases B. Evaluating the Strategy V. Is THERE AN ADVANCE WAIVER OF CONSTITUTIONAL RIGHTS? A. The Argument B. Evaluating the Strategy CONCLUSION INTRODUCTION

When do we have a legal right not to procreate, and what does that mean? Modern reproductive technologies have increasingly problematized this issue. Legal analysis has, I will argue, not kept pace. Rather, reflecting the fact patterns that traditionally resulted from our natural biology, it has tended to collapse the rights not to be a genetic, gestational, or legal parent into one monolithic right not to procreate. But each of those rights is conceptually distinct, and unbundling them significantly alters the analysis.

Consider, for example, the following fact pattern:

A husband and wife undergo in vitro fertilization (IVF), mixing his sperm with her eggs in culture dishes and allowing those that have been fertilized to develop into 2-8 cell organisms called "preembryos." (1) They manage to fertilize six preembryos, two of which are used for implantation in the woman, while the other tour are cryopreserved and stored in canisters frozen with liquid nitrogen for future use. Neither implanted preembryo leads to a successful pregnancy. The parties divorce, and reach an impasse as to the disposition of the remaining preembryos. Can the wife obtain the cryopreserved preembryos and use them for implantation, producing a child against her husband's contemporaneous objection? Does the answer turn on whether the husband and wife executed a prior agreement on the issue?

A number of state Supreme Courts have confronted cases like these, called preembryo disposition disputes, and none of these courts have allowed the preembryos to be used for implantation even when there was an agreement so providing. (2) Some of these courts have suggested that the outcome of these disputes depends on a "right not to procreate" or a "right to avoid procreation" or a "right to procreational autonomy," and many commentators agree. (3) Both rely on Supreme Court cases relating to access to contraceptives and abortion to claim that this is a fundamental right protected by the Federal Constitution.

In this Article, I challenge this claim, and examine four separate strategies for attacking it. Each of these strategies produces a different understanding of what aspects of the rights not to procreate are constitutionally compelled.

Part I, a background section, briefly introduces the unbundling framework I will employ in this Article, which suggests that it is an error to rely on a monolithic conception of the right not to procreate. I instead argue that we should think of the right as containing three possible sticks: the right not to be a genetic parent, the right not to be a legal parent, and the right not to be a gestational parent (because at present only women can carry a fetus in the uterus, this last right is limited to women). This Part also specifies the scope of the right I am most interested in, what I call the "naked" right not to be a genetic parent (that is, unbundled from other types of parenthood). Finally, it introduces two sets of test cases to be used.

In Part II, I discuss the first strategy, which uses the unbundling to demonstrate that while the Fourteenth Amendment's Due Process Clause and the Supreme Court jurisprudence interpreting it unquestionably protect a fundamental right not to be a gestational parent, they do not compel recognizing a fundamental right not to be a genetic parent. Refusing to recognize the right yields a plausible reading of the contraception cases and the most plausible reading of the abortion cases, although we cannot make the stronger claim that recognizing the right is incompatible with this jurisprudence.

The second strategy, which I discuss in Part III, assumes that the right not to be a genetic parent is a constitutionally protected fundamental right, but suggests that the alleged infringement can survive under the appropriate standard of review, strict scrutiny or perhaps undue burden analysis.

The third strategy, discussed in Part IV, suggests that there is no state action in these cases, and ...

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