Children of Choice: Freedom and the New Reproductive Technologies.

• Author: Rao, Radhika

"59-Year-Old Woman Becomes a Mother";(1) "Black mother, white baby: artificial conception stirs Europe[an] debate";(2) "South Africa Woman Gives Birth to 3 Grandchildren, and History";(3) "Healthy Baby Is Born After Test to Screen Out Deadly Gene";(4) "The Hot Debate About Cloning Human Embryos";(5) "Infertility doctors plan to use eggs from aborted foetuses."(6) This bewildering barrage of headlines reveals a reproductive revolution in the making. Children of Choice: Freedom and the New Reproductive Technologies ambitiously endeavors to shed light upon and bring order to the chaotic brave new world spawned by advances in reproductive technology. Professor John A. Robertson(7) proposes a unifying principle -- the presumptive primacy of procreative liberty -- that is elegant in its simplicity. Applying this principle, he methodically canvasses each technology and concludes that almost every practice necessary to procreate should receive constitutional protection. He finds a constitutional right to reproduce technologically, to purchase sperm, eggs, and gestational services, and even to enforce preconception agreements to rear offspring.

Robertson's principle of procreative liberty possesses merit as an ethical precept, but it falters as an axiom of constitutional law because it lacks a solid foundation in Supreme Court jurisprudence. In his effort to distill a single principle that encompasses myriad contexts, moreover, Roberton forgoes a more nuanced constitutional analysis, one that takes into account the many ways in which individuals experience liberty in various categories and clauses of the Constitution. He focuses almost exclusively upon the right to procreate, overlooking other constitutional privacy interests, such as the right of body integrity and the right of parental autonomy.

More fundamentally, Robertson's effort to constitutionalize conception is unavailing because global constitutional principles are ill-suited to resolve the problems posed by the new reproductive technologies. Perhaps for this reason, Robertson's approach, though cast in constitutional terms, traces its roots more closely to contractual principles. He conceives reproductive freedom in terms of an individual's right to participate in a free market -- a market whose commodity is the means of producing children. In so doing, Robertson actually constitutionalizes freedom of contract in the name of protecting procreative rights.

1. A CONSTITUTIONAL RIGHT TO PROCREATE BY ANY MEANS NECESSARY

   Robertson begins with a brief description of "the scope of the reproductive revolution that technological change has now wrought" (p. 4). The reproductive revolution originated in the 1960s when the development of the pill made possible sex without procreation. This revolution has culminated in the 1990s with the development of technology that allows procreation without sex. "[T]he most visible marker of the technological reproductive revolution" was the birth of Louise Brown -- the first child conceived in a petri dish -- in 1978 (p. 4). This birth proved to be just the vanguard of the revolution to come, foreshadowing modern reproductive technologies that enable individuals to control conception and manipulate offspring characteristics in ways previously unimaginable. "Like Caesar crossing the Rubicon," Robertson predicts, "there is no turning back from the technical control that we now have over human reproduction" (p. 5). As a result, "[t]he decision to have or not have children is ... no longer a matter of God or nature, but has been made subject to human will and technical expertise" (p. 5). The current sources of conflict in the reproductive revolution include RU486, Norplant, frozen embryos, surrogate motherhood, genetic screening, manipulation of embryos, forced caesarean section, criminal punishment of pregnant drug users, and fetal tissue transplants (p. 5). Robertson attempts to address all of these issues, dividing them into four main categories that provide the structure of the book: avoiding reproduction, assisted reproduction, quality control, and nonreproductive use of reproductive capacity.

   Armed with his principle of procreative liberty -- which protects "the freedom to decide whether or not to have offspring and to control the use of one's reproductive capacity" (p. 16) -- Robertson enters the fray, mapping out a framework for resolving the controversies engendered by the new reproductive technologies. He defines procreative liberty as "the freedom to reproduce or not to reproduce in the genetic sense" (pp. 22-23), and extends the term to include gestation as well because "gestation is a central experience for women and should enjoy the special respect or protected status accorded reproductive activities" (p. 237 n.1). Procreative liberty, according to this view, consists of a negative right to be free from state interference, rather than a positive right to call upon the state to provide the means or resources necessary to exercise procreative choice (p. 23). Robertson advocates the "presumptive primacy of procreative liberty" (p. 22) because reproduction is "central to personal conceptions of meaning and identity" (p. 4). "To deny procreative choice," he believes, "is to deny or impose an all-encompassing reproductive experience on persons without their consent, thus denying them respect and dignity at the most basic level" (p. 220).

   Attempting to ground his principle of procreative liberty in the constitutional right to privacy, Robertson parses it into its component parts -- the right not to procreate and the right to procreate. The former aspect of procreative liberty finds a firm footing in Supreme Court precedents that clearly delineate a constitutional right to avoid reproduction by means of contraception(8) and abortion.(9) Constitutional jurisprudence provides sketchy support, however, for the latter aspect of procreative liberty. Robertson points primarily to Skinner v. Oklahoma,(10) a case in which the Court struck down an Oklahoma statute authorizing forcible sterilization of thrice-convicted chicken-thieves. Relying upon Skinner and broad dicta from several other cases,(11) Robertson determines that "laws restricting coital reproduction by a married couple would have to withstand the strict scrutiny applied to interference with fundamental constitutional rights" (p. 36).

   Building upon his reading of the case law, Robertson makes the following argument: if fertile persons possess a constitutional right to reproduce under Skinner, then infertile persons must possess such a right as well because "the values and interests that undergird the right of coital reproduction clearly exist with the coitally infertile" (p. 39). Drawing an analogy between infertility and blindness, he reasons that the inability to procreate sexually should not preclude an infertile person from exercising the right to reproduce, just as the inability to see should not preclude a blind person from exercising the First Amendment right to receive information. First Amendment protection should extend to books read by sight or by braille: "Similarly, if bearing, begetting, or parenting children is protected as part of personal privacy or liberty, those experiences should be protected whether they are achieved coitally or noncoitally" (p. 39). It follows that the right to procreate protected by Skinner encompasses "a negative constitutional right to use a wide variety of reproductive technologies to have offspring" (pp. 38-39). Therefore, laws restricting the use of reproductive technology must also withstand strict scrutiny. Robertson concludes, "Noncoital reproduction should thus be constitutionally protected to the same extent as is coital reproduction, with the state having the burden of showing severe harm if the practice is restricted" (p. 39). Because such strong justifications seldom exist, Robertson believes that decisions about reproductive technology should almost always be left to the individual.

   Having established the presumptive primacy of procreative liberty, Robertson proceeds to apply this principle to controversies involving various reproductive technologies. He first addresses the battle over abortion, which pits a woman's presumptive right to terminate her pregnancy against the claims of the fetus. For Robertson, the resolution to this conflict lies within the reach of new abortion technology. "[A] fertilized egg, embryo, or fetus cannot be a person or even a moral subject," he believes, "because it is too undeveloped biologically. In the earliest stages, it lacks differentiated organs and a nervous system" (p. 51). Only at sentience -- which occurs near the time of viability -- does a fetus become a moral subject in its own right. The viability line embodies this "biological reality of progressive fetal development" (p. 53), whereas a position that "[c]all[s] all abortion 'murder' overlooks the very different biologic stages of embryonic and fetal development, and the moral distinctions that rest on them" (p. 48). Because "biological status is morally relevant" (p. 55) to Robertson, tehnology holds out the hope of ending the bitter battle over abortion. Robertson believes that "[p]reventing a fertilized egg from implanting or interrupting implantation shortly after an embryo has developed is less morally or symbolically problematic than surgically destroying a much more developed fetus" (p. 64). Therefore, a new drug such as RU486 -- which interrupts pregnancy at a very early stage -- has the potential to "defuse some of the heat of the abortion controversy" (pp. 63-64).

   Robertson next applies his principle of procreative liberty to proposed legislation to restrict irresponsible reproduction by means of new contraceptive technology. Such proposals focus upon the drug Norplant, a surgically-implanted contraceptive approved by the FDA in 1990, which Robertson believes to be safe, convenient, and effective at...