After Sex

• Publication year: 2021
• Citation: Vol. 97

97 Nebraska L. Rev. 1. After Sex

After Sex

Courtney Megan Cahill(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 2

II. After Sex as a Reproductive Form ..................... 9
A. The Future of Sexless Reproduction ................ 9
1. The Technology of Sexless Reproduction ........ 9
2. The Social and Legal Shifts Favoring Sexless Reproduction .................................. 13
B. The Promise of Sexless Reproduction .............. 16

III. The Persistence of Sex as a Reproductive Norm: Sexual Supremacy ............................................ 18
A. Sexual Supremacy Defined and the Marital Supremacy Analogy ............................... 20
1. Sexual Supremacy Defined ..................... 20
2. The Marital Supremacy Analogy ............... 21
B. Sexual Supremacy and Contemporary ART Law ... 26
1. The Sexual Family: Surrogacy and Gamete Donor Anonymity .............................. 27
2. The Sexual Procreative Process: Designer Children ....................................... 42

IV. After Sex Reconsidered ................................ 52

V. After Sex Reimagined ................................. 55
A. Sexual Supremacy Unconstitutionally Privileges Heterosexual Procreation .......................... 55
B. Sexual Supremacy Incorrectly Assumes that Non-Sexual Procreation Is a Non-Fundamental Right . . . 59

VI. Conclusion ............................................ 63

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All of the significant symbols of American kinship are contained within the figure of sexual intercourse, itself a symbol, of course.

-David Schneider, American Kinship: A Cultural Account(fn1)

I. INTRODUCTION

People are procreating non-sexually more than ever before.(fn2) The use of the "new reproduction"-a term that comprises alternative reproductive technologies (ARTs) like alternative insemination, in vitro fertilization, and surrogacy(fn3) -to reproduce has exploded(fn4) in the United States since the federal government first started collecting statistics on alternative reproduction in 1992,(fn5) with the numbers of both ART cycles and babies born from those cycles increasing over one hundred percent in the last two decades.(fn6) In fact, some commentators predict that emerging ARTs will soon create a situation where much, if not most, human procreation will occur without sex.(fn7) The boldest

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statement in this regard comes from Professor Henry Greely, who recently predicted "the end of sex" as humans' dominant method of intentional reproduction. "[I]n the next twenty to forty years," Greely says, ARTs will render sex for reproduction irrelevant.(fn8) "[S]ex [for procreation] . . . will largely disappear," he says, "or at least decrease markedly."(fn9) If Greely and others are right, then we might soon inhabit a world after sex-or at least a world after sexual procreation.

Some scholars have challenged the "end of sex" prediction on the ground that most people are unlikely to opt for technology over sex in order to reproduce.(fn10) This Article challenges the "end of sex" prediction for a different reason: because sex, it contends, is unlikely to vanish as a normative ideal in the law's approach to ART and the family that results from it. It argues that even if scholars are right that sexual procreation could obsolesce as a reproductive form with the evolution of ART, the "symbolism associated with sexual reproduction"(fn11) will persist for some time as a reproductive norm in the law's engagement with ART, and it will do so in ways that curtail promising technological developments, undermine technology's radical potential, and curb procreative and familial autonomy. On this account, something more than technology is necessary to enable a procreative and familial world after sex.(fn12)

Consider by way of analogy the legal relationship between marriage and non-marriage. Where society is reputedly "twenty to forty" years away from being "after sex" as its dominant method of procreation, it is arguably just a few years away from being "after marriage"(fn13)

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as its dominant method of romantic affiliation.(fn14) Even so, a robust scholarly literature has coalesced around the legal relationship between marriage and non-marriage, with scholars illuminating the persistence of marital law and marital norms in the regulation of non-marital relationships.(fn15) Referring to this dynamic as "marital supremacy,"(fn16) scholars have shown that marriage and its associated ideals remain the "metric,"(fn17) "yardstick,"(fn18) or baseline for all relationships, even in an increasingly non-marital world.

This Article argues that the law's engagement with ART reflects a similar dynamic-one which it calls sexual supremacy. If marital supremacy is what happens when the law makes ideal marriage the measure of non-marital relationships,(fn19) then sexual supremacy is what happens when the law makes ideal sexual procreation the measure of non-sexual procreation. In both cases, a non-traditional relationship or practice is regulated in the shadow of ideas and ideals about a traditional relationship or practice. This Article uses the more critically developed concept of marital supremacy to help bring into focus this dynamic of sexual supremacy, a phenomenon that not only casts doubt on predictions about getting to a point after sex in human reproduction, but also is in tension with the constitutional law of the family.

A close look at the law's engagement with ART in areas that have been the recent subject of intense debate-surrogacy,(fn20) gene edit-

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ing,(fn21) and gamete donor anonymity(fn22) -reveals signs of sexual supremacy, that is, signs that the law is willing to accommodate ART only to the extent that it conforms to ideals associated with sexual procreation and the sexually-produced family. To be sure, in some important ways the law has discarded paradigms about sexual procreation in its approach to ART. Many jurisdictions, for instance, permit alternative insemination by single women, and a few have expanded the number of legal parents that a child can have beyond the traditional parental dyad.(fn23) In many other ways, however, the law has retained sexual supremacy in a range of contested areas.

Consider surrogacy law. Some states will not recognize surrogacy agreements if the intended parents are unmarried, lack a biological connection to any child that may result from those agreements, or are unable to satisfy a state's implicit requirement of dual-gender parenting.(fn24) Scholars have criticized these regimes for prioritizing marriage, biology, and gender over other routes of family formation, like function and intent.(fn25) We might also criticize them for embodying sexual supremacy: the use of ideas and ideals about sexual procreation to regulate non-sexual procreation. Surrogacy parentage law privileges

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norms-like marriage, biology, and gender-that have long been associated in law and culture with sexual procreation and the "sexual family": the nuclear family bound by marriage and biology and "founded on the heterosexual couple."(fn26)

Consider also ART domains beyond surrogacy. The well-worn bioethical critique of alternative reproduction as a process that "designs children" (and that warrants regulation for precisely that reason)(fn27) is animated by sexual supremacy, as are the numerous recent proposals to eliminate a key industry norm in the practice of alternative reproduction: gamete donor anonymity. In both cases, sexual procreation is the dominant model for alternative reproduction. Opponents of designer procreation either argue or strongly suggest that alternative reproduction ought to approximate the naturalness and randomness of sexual procreation,(fn28) and opponents of gamete donor anonymity either argue or strongly suggest that donor-conceived children ought to enjoy the same right as sexually-conceived children to know their biological progenitors.(fn29)

All of these examples show the law regulating and engaging with non-sexual reproduction in the shadow of sexual procreation-not sexual procreation as it actually exists, moreover, but as it ideally exists. For instance, no jurisdiction requires sexual procreators to be married or engage in dual-gender parenting, but some jurisdictions require the parents of children produced through surrogacy to satisfy both of those requirements. Similarly, designer procreation happens all the time with sexual procreation, yet no one supports prohibiting it in that context. Finally, sexually-conceived children are not entitled to know the identity of both of their biological progenitors, even as commentators increasingly argue that donor-conceived children ought to enjoy that so-called right. Looking closely at sexual supremacy, as this Article does, therefore reveals two aspects of it: the use of sexual procreation as a metric or baseline for the regulation of non-sexual reproduction, and the asymmetrical application of ideals about sexual reproduction to non-sexual reproduction.

The persistence of norms relating to sexual procreation in the law's engagement with alternative reproduction is not surprising. During ART's early medical use, doctors sexualized certain ART procedures-

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like making the husband administer the syringe on a woman being artificially inseminated-in order to make them appear more like having sex, thereby naturalizing them.(fn30)...