Assisted reproductive equality: an institutional analysis.

• Author: Coan, Andrew B.

Should the constitutional right to procreative liberty extend to assisted reproductive technologies? Unlike most commentators to address this question, Radhika Rao appreciates that the answer turns not only on constitutional values but also on the competence of the institutions called upon to carry those values into effect. On that basis, she urges courts to focus on reproductive equality rather than recognizing a broad liberty right or leaving the regulation of assisted reproductive technologies wholly to an unsupervised political process. This brief symposium contribution assesses the institutional promise and limitations of Rao's reproductive equality approach.

INTRODUCTION I. REPRODUCTIVE EQUALITY IN CONTEXT II. INSTITUTIONAL OVERSIGHTS A. Imperfect Courts B. Imperfect Politics C. Imperfect Analysis CONCLUSION INTRODUCTION

Nearly forty years after Roe v. Wade, (1) a woman's constitutional right to terminate her pregnancy remains intensely controversial. The affirmative fight to have children, by contrast, attracts relatively little attention and even less controversy. Virtually no one thinks today's Supreme Court should (or would) permit population control measures akin to China's one-child policy, much less the sort of mandatory sterilization it upheld in Buck v. Bell during the heyday of American eugenics. Rather, among ordinary citizens and constitutional lawyers alike, there seems to be an unspoken consensus that Skinner v. Oklahoma (3) was fight to describe procreative liberty as "one of the basic civil rights of man." (4)

Behind this apparent consensus, however, lurks an important ambiguity. Just how far does the procreative liberty protected by the Constitution extend? Does it encompass a right to use noncoital methods of reproduction like artificial insemination and in vitro fertilization? A right to select the sex--or even the genes--of one's offspring using techniques such as flow cytometry (5) and preimplantation genetic diagnosis (PGD)? (6) A right to pay for gametes for use in any or all of these processes? Over the past fifteen years or so, these questions have attracted increasing attention from scholars. (7) With rapid advances in the development of assisted reproductive technologies, dramatic expansion in their use, and persistent calls for more stringent regulation, courts will soon have little choice but to follow suit.

How should they proceed? Commentators generally agree that the Supreme Court's prior decisions neither compel nor preclude extension of the constitutional right to procreative liberty beyond coital reproduction. (8) Attention has therefore focused on the normative question: Should courts extend the fight to procreative liberty to assisted reproductive technologies (ARTs)? If so, which ones, and in what circumstances? Answers range widely but share one basic feature in common: they confuse the question whether different forms of procreative liberty are worthy of protection with the question whether courts in particular should protect them. These are different questions and will often have different answers, as I have argued at length elsewhere. (9)

I shall not repeat those arguments here. Instead, in this brief symposium contribution, I want to focus on one approach that does not fall victim to such confusion--that of Radhika Rao. (10) Unlike most other commentators in this area, Rao appreciates that normative constitutional analysis must attend not only to goals and values but also to the capacities of the institutions that carry (or attempt to carry) those goals and values into effect. On this basis, among others, she urges courts to focus on reproductive equality rather than recognizing a broad liberty right or leaving the regulation of assisted reproductive technology wholly to the political process. Only a reproductive equality approach, she argues, is consistent with the judiciary's special institutional role in the American system of government. (11)

For her sensitivity to institutional considerations, Rao deserves credit. Her analysis of those considerations, however, leaves many important questions unanswered. On one hand, she overlooks important limitations of the judiciary that, given certain plausible assumptions about the capacities of courts and legislatures, might well recommend a rule of minimal constitutional protection over Rao's reproductive equality approach. On the other hand, she glosses over shortcomings of the political process that, given different but equally plausible assumptions, might recommend a strong, judicially enforced liberty right. Perhaps most important, she fails to carefully compare the courts and the political process, generally focusing on the flaws of one or the other in isolation. As a result, she overlooks the possibility that a seriously flawed judiciary (or legislature) might nevertheless be the best available option.

In the discussion that follows, I elaborate on the institutional promise and limitations of Rao's reproductive equality approach. Part I briefly summarizes that approach, situating it in the relevant literature and highlighting its self-consciously institutional foundations. Part II demonstrates the shakiness and incompleteness of those foundations. I do not rule out the possibility that Rao's approach might ultimately prove correct, but substantial additional work would be required to support that conclusion persuasively.

In fairness to Rao, I should emphasize that her institutional argument is only one part of a broader case for her reproductive equality approach. She plainly did not set out to perform a complete comparative institutional analysis, and I do not mean to criticize her for failing at something she had no notion of attempting. On the other hand, Rao quite explicitly presents institutional considerations as a compelling reason for adopting her reproductive equality approach. It seems both fair and important to point out how far short her argument falls in this regard. In doing so, my principal object is not to criticize Rao, whose work I admire, but to demonstrate how much more work remains to be done.

A broader takeaway is that comparative institutional analysis is both necessary to sound constitutional reasoning and more complex than many otherwise able constitutional analysts have appreciated. (12) This is hardly a new or an original point, but the problem remains pervasive, which makes it worth revisiting periodically.

1. REPRODUCTIVE EQUALITY IN CONTEXT

   Most discussion of procreative liberty and ARTs has focused on substantive due process. In particular, the sharpest battle lines have been drawn over the question whether freedom to use ARTs qualifies as a fundamental liberty for purposes of due process analysis. There is ample ambiguity in the Supreme Court's prior decisions to support significant debate. Most basically, the Court has never addressed the constitutionality of regulating ARTs. Indeed, it has squarely addressed the due process fight to procreate--as opposed to the right not to procreate--only once, in the long since discredited Buck v. Bell. (13) Nevertheless, there is substantial dicta in the Court's due process decisions extolling "the right of the individual ... to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." (14) And, of course, as noted earlier, Skinner v. Oklahoma memorably described procreation as "one of the basic civil rights of man ... fundamental to the very existence and survival of the race." (15)

   These statements would supply plausible precedential cover for the Court to recognize a broad fight to procreative liberty extending to all manner of ARTs. But as most commentators have recognized, the cases hardly compel such a result. (16) Attention has therefore turned to the normative question: Should the fight to procreative liberty be interpreted as encompassing the use of some or all ARTs? Answers to this question have varied widely. (17) Virtually all commentators, however, have understood it as primarily a question about constitutional values. Proponents of a broad fight see the Court's prior decisions as embodying an attractively broad vision of individual autonomy over most or all reproductive decisions. They see no reason constitutional protection should vary with the technology involved. (18) Opponents of a broad right, by contrast, trace the Court's past decisions to some important constitutional value implicated by abortion, contraception, and forced sterilization, but not the use of ARTs. The most common examples are bodily integrity and sexual equality. (19)

   Radhika Rao takes a different approach. Though she is hardly insensitive to the...