Few principles are as universally accepted in legal scholarship today, but based on such scant support, as the fundamental nature and broad scope of the right to procreate. What is perceived as a vague but nonetheless justified legal and moral interest to procreate freely without regard to others is, upon closer examination, based on little more than misconstrued or inapposite case precedent and blurry statements in non-binding sources of international law. By relying on this authority, conflating procreation with conceptually distinguishable behaviors, presuming its intrinsic value, and ignoring competing rights and duties, lawyers have largely overlooked procreation and its legal and normative limits. Interpreting U.S. constitutional and international law sources, and finally employing Locke's model of natural rights, this Article redefines the right in law and practice as satiable and narrow, acknowledging the competing rights and duties that both qualify and justify the right. It posits that the procreative right, properly stated, includes at least the act of replacing oneself and at most procreation up to a point that optimizes the public good.
TABLE OF CONTENTS I. INTRODUCTION A. A Different Approach B. Redefining What Is at Stake in the Procreative Right II. THE PROCREATIVE RIGHT IN CONTEXT A. U.S. Constitutional Law 1. Skinner deconstructed 2. Modern substantive due process 3. Tradition 4. Prisoners, probationers, and asylees B. International Law 1. Binding sources of international law 2. Non-binding declarations and agreements 3. Customary international law C. Locke and Procreation 1. Locke's limited right of procreation 2. Population and political society 3. Parents' duties to their children 4. Locke's residual state of nature III. THE PROCREATIVE RIGHT RE-EXAMINED A. Properly Stating the Legal Right B. The Right and Its Reasons 1. The intrinsic value of procreating 2. Relational concerns IV. CONCLUSION I. INTRODUCTION
A Different Approach
Is procreation in all circumstances just? Common wisdom tells us that both positive law and the morality beneath it ensure our right to procreate freely-in other words, to procreate without restriction-and hence that procreation in all circumstances is just. We assume a moral and legal interest to procreate freely, without being subject to law and without regard for others. (1) Scholars debate its outer edges: what duty of assistance the state owes its prisoners, whether financial incentives to undergo sterilization are inherently coercive, or whether one has the right to clone oneself. But with few exceptions, we persist in our conviction that there exists a personal and private right to create others.
Where society's interest in procreation has been forced from abstract legal thought into policy by the effects of population growth, the debate among Western lawyers has declined to focus squarely on the morality and legality of procreation at will. Lawyers made a "late entry into the population field"; (2) the issues surrounding population growth had already been framed by the natural and social sciences, and had become controlled by narrow Malthusian and anti-Malthusian perspectives in a debate over the Earth's resources. (3) This Malthusian debate and its myopic focus on the physical limits of human population, revived in part with publication of Paul Ehrlich's "The Population Bomb" in 1968, (4) has influenced and limited the way many legal scholars approach the issue of procreation.
Malthus himself assumed that the law had little if anything to say about procreation. He argued that natural law ensures a broad and inviolable procreative right, as "[p]rudence cannot be enforced by laws without a great violation of natural liberty." (5) Malthus removed direct regulation from the population debate, turning to Locke's theory of property to indirectly check population growth by removing public support for the poor and creating disincentives to procreate. (6) Thus, the focus moved to laws that obliquely influence the voluntary exercise of the procreative right or ameliorate its effects in order to avoid some apocalyptic future scenario- leaving the right itself unquestioned. (7)
Amartya Sen offers a contemporary example of the indirect approach. Sen challenges advocates of coercive family planning programs, arguing that they recognize the utilitarian value of "the personal right to decide freely how many children to have" and only insist on coercion because they believe (wrongly) that without state intervention the consequences would be disastrous for the welfare of society. (8) Sen challenges this thinking by examining the social and economic factors that indirectly influence fertility rates, as well as the consequences of population growth, (9) asking, "How critical is the situation already? Do we have time to spare?" (10) Sen implies that the "private" behavior of procreation can have disastrous results for others, but inexplicably Sen gives it priority over other rights, such that persons must actually suffer before it can be limited. (11) Throughout, Sen implies that the negative ramifications of population growth are only some potential future event. (12)
Legal commentators have joined in this debate and taken up its terms, basing their analyses of the legality of population programs not on moral theory or political philosophy, but on disputed scientific, sociological, and economic theories regarding the number of humans the Earth can sustain. (13) Much of the legal scholarship that followed Ehrlich's book exemplified this approach; as one commentator put it, "[t]hat there is a 'right' to found a family and have children cannot be seriously questioned." (14) Rather than question the right, or attempt to define its inherent scope, so-called "regulationists" focused instead on derogations from it based on emerging evidence of an impending disaster. (15)
This approach continues, (16) despite a current population beyond that which many earlier legal scholars had anticipated, (17) the advent of reproductive technologies giving humans the opportunity to procreate more easily, (18) and new patterns of consumption that amplify the effects of a growing world population. (19) Must we still assume that Malthus was correct about the "natural liberty" to procreate? Doing so has led to the outmoded and ineffective voluntarist and regulationist approaches. The former denies any legitimate state interest in individual acts of procreation. The latter assumes too that procreation is a basic right, but it allows for derogation as necessary to avoid impending disaster and ensure mere collective survival.
The better approach is to determine what the procreative right consists of in the first place. Rather than rushing to find a compelling state interest to justify derogating from the right, getting mired in the science and economics of sustainability, or relying exclusively on moral obligations owed to politically impotent future generations, (20) this Article questions the scope of the pre-derogation right itself, and it views competing rights "not as necessary derogations but rather as inherent limitations on the scope." (21) It posits that population law must start from a rigorous determination of the exact scope of the legal procreative right, as well as the moral procreative right, based on 1) its intrinsic value and 2) its relation to other rights, (22) rather than pursue the development of legal policies based on unfounded presumptions about that right. We should at least begin to question the notion of a limitless procreative right now that China, the largest polity in the world with a unique perspective on the effects of procreation, expressly rejects it. (23)
While this approach is similar to that of Luke T. Lee, who presumes that the procreative right must be limited by competing rights and correlative duties, (24) this Article goes beyond Lee, examining in detail the legal and normative justifications for the right and the intrinsic value of the underlying behavior. It seeks to dispel the illusion of procreation as a private act, and to recognize competing state interests as a mere reflection of the rights of others (25)--whose interests we discount when we assume the right to procreate is unlimited. No right, procreation included, is limitless if it is capable of conflicting with other valid and perhaps hierarchically superior rights. (26) Population law's failure to address this conflict by properly defining the right, to be remedial rather than prophylactic, ignores the fact that merely ensuring the survival of the citizenry falls well below what is required of government, the legitimacy of which is contingent on its ability to balance competing rights. Thus, this Article seeks to define the procreative right and posits that the question is not how many people can live on Earth, but how many people should live on Earth, not whether unfettered procreation is sustainable, but whether it is just. (27)
Redefining What Is at Stake in the Procreative Right
Common formulations of the procreative right are remarkably imprecise in specifying what behavior, exactly, the right is protecting. While most formulations contemplate unfettered procreative freedom, the various ways they phrase the content of the right entail a range of diverse legal consequences. (28) The often-cited "right to found a family and have children" (29) entails various privileges, immunities, and disabilities. It is a general claim-right, placing a duty on others not to interfere with acts of procreation (a negative right), and a power in the privileged procreator to create and change the legal relations of the prospective child or children. (30) The related "entitlement to family planning services" (31) involves an additional claim-right (a positive right) on the government to provide assistance to both procreate and avoid procreation. In Griswold v. Connecticut, Justice Goldberg viewed...