The Constitution and the rights not to procreate.

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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 therefore the Constitution does not apply to these disputes at all. I first examine this strategy as to cases of prior consent by contract, and then move on to cases where there is no consent at all.

Finally, in Part V, I examine the advance waiver strategy, which does not dispute that the Constitution applies and that there exists a fundamental right not to be a genetic parent, but instead objects to the further claim that it is not waivable in advance. This strategy is a narrower one, which would lead to a conclusion that the Constitution does not compel an outcome only in cases involving prior consent to genetic parenthood by contract (and potentially some weaker forms of consent as well).

If one or more of these strategies succeeds, I will have shown that the Federal Constitution does not compel an answer to the preembryo disposition agreement disputes or other disputes involving the right not to be a genetic parent. In this Article, I do not seek to provide an answer to what the best approach to these kinds of cases are, which is a matter I explore in other work. (4) But, at least as to U.S. jurisdictions under the current constitutional order, this Article establishes the logically prior claim that the states have the legal discretion to select the approach they favor.

While my argument style is largely analytic, I do not want to mask the fact that these disputes are as emotional and personal as any the law must confront. For many these disputes carry still deeper questions such as what is the proper attitude to take to embryonic life. But unlike the judges in Rome who could throw their hands up and declare a particular dispute non-liquet, or without law to apply, (5) our legal system does not permit us to escape making a decision about how these disputes should be resolved. Whatever we select as the legal rules in this area will have strong emotional consequences for the parties involved, and it is precisely for this reason that these legal analytics are important. That said, it is also important to recognize that behind the abstract issues the law faces there is an inescapable human dimension.


A. Unbundling the Rights Not to Procreate

1. The rights introduced

As I have said, a number of courts and commentators have made reference to a "right not to procreate" (singular) but are not at all clear on what exactly this right means. I argue that many of these authorities have erred by conceiving of a monolithic "right not to procreate," and we should instead recognize a bundle of rights having multiple possible sticks.

It is fairly intuitive that reproductive technology requires a reconceptualization of the notion of parenthood. (6) That is, a woman can be a parent in (at least) three possible senses: gestational parent, legal parent, and genetic parent--men are restricted by biology to only the last two types of parenthood. To give a fairly obvious example, a woman who undergoes IVF with her egg fertilized by her husband, but whose baby is carried by a gestational surrogate, is the child's genetic mother and (under certain circumstances) legal mother, but not its gestational mother. By contrast, the surrogate is the gestational mother but not the genetic or legal mother.

What is perhaps less apparent is that the same technological innovation also makes clear the need to unbundle the concept of non-parenthood, or rather, freedom from parenthood. So, when we are discussing the right not to procreate, we need to recognize three possible rights not to be a parent--a right not to be a gestational parent, a right not to be a genetic parent, and a right not to be a legal parent. (7) The tendency to view these rights as a monolithic bundle is an outgrowth of the fact that, in natural reproduction, the three rights tend to be clustered together: when a woman seeks an abortion, she is simultaneously exercising a right not to be a gestational, legal, and genetic parent, and we seldom have reason to try and disaggregate the three. But the world of reproductive technology allows us to see that the bundling of these three rights is not inherent.

Conceptually, we can add the three rights not to be a parent and three possible opposing rights to be a parent, for a relationship of six possible rights:

A right not to be a gestational parent

A right not to be a genetic parent

A right not to be a legal parent

A right to be a gestational parent

A right to be a genetic parent

A right to be a legal parent. (8)

Each of these six possible rights is a negative right to be free from interference rather than an affirmative right to assistance. (9) Thus, as I am using the terms, the right to be a gestational parent should be understood as a negative right against interference with your gestation of a fetus rather than a right to have a fetus provided to you for the purpose of gestation. The right to be a genetic parent is a negative right that might be violated, for example, if you were a carrier of a genetic disease and the state or another...

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